MBE Question Thread Forum

[shawktheworld]

Hey, sorry if this one has been asked before but super confused- 85% of Adaptibar users and I got it wrong:

On January 1, 2005, a woman met with a plastic surgeon for a face lift consultation. The plastic surgeon described the procedure and the woman agreed to have the surgery on a date exactly one week later. On December 25, 2007, unhappy with the results, the woman filed a single-count complaint against the plastic surgeon in federal court. The complaint asserts that the plastic surgeon failed to obtain informed consent. Applicable state law provides a three-year statute of limitations for tort claims. Three weeks after serving the complaint, the woman's attorneys amended the complaint to add a negligence claim on the theory that the plastic surgeon was intoxicated while he performed her surgery.

Can the woman amend her complaint?

A. Yes, because the negligence claim relates back to the date of the original complaint, which was filed timely, and the woman can amend the complaint as a matter of right.
B. No, because the negligence claim does not relate back to the original complaint.
C. Yes, because the plastic surgeon knew or should have known that the woman would have brought a negligence claim against him, but for a mistake.
D. No, because the three-year statute of limitations for tort claims expired on January 1, 2008, and the woman did not file the negligence claim before that date.

Correct answer was B and NOT A. How is it not from the same transaction/occurence and able to relate back?

I'm guessing the language in bold is key. A week separated the woman consenting to the surgery and the surgeon getting plastered and actually performing the surgery, so I guess that (in part) leads to the two events amounting to separate transactions/occurrences.

[cnk1220]

Hey, sorry if this one has been asked before but super confused- 85% of Adaptibar users and I got it wrong:

On January 1, 2005, a woman met with a plastic surgeon for a face lift consultation. The plastic surgeon described the procedure and the woman agreed to have the surgery on a date exactly one week later. On December 25, 2007, unhappy with the results, the woman filed a single-count complaint against the plastic surgeon in federal court. The complaint asserts that the plastic surgeon failed to obtain informed consent. Applicable state law provides a three-year statute of limitations for tort claims. Three weeks after serving the complaint, the woman's attorneys amended the complaint to add a negligence claim on the theory that the plastic surgeon was intoxicated while he performed her surgery.

Can the woman amend her complaint?

A. Yes, because the negligence claim relates back to the date of the original complaint, which was filed timely, and the woman can amend the complaint as a matter of right.
B. No, because the negligence claim does not relate back to the original complaint.
C. Yes, because the plastic surgeon knew or should have known that the woman would have brought a negligence claim against him, but for a mistake.
D. No, because the three-year statute of limitations for tort claims expired on January 1, 2008, and the woman did not file the negligence claim before that date.

Correct answer was B and NOT A. How is it not from the same transaction/occurence and able to relate back?

I'm guessing the language in bold is key. A week separated the woman consenting to the surgery and the surgeon getting plastered and actually performing the surgery, so I guess that (in part) leads to the two events amounting to separate transactions/occurrences.

Just to add a little- the rule regarding relation back that applies here states: the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out–or attempted to be set out–in the original pleading...

In your Q- relation back won't apply because the "set of facts/transaction/occurrence" from which the cause of actions arise are different- they are separated by two distinct set of facts; in other words
#1) surgeon describes procedure during a consult visit
#2) surgery one week after consult

They don't arise from the same transaction/occurrence/set of facts although one could easily argue the other way as IMO- the consult and surgery are derived from one in the same b/c a consult is usually mandatory pre plastic surgery ...this is deff. a tricky question- like the above poster said the dates are key to getting it right.

[TheWalrus]

Can anyone help explain the physicians privilege? I thought that statements explaning an injury were privileged, but apparently not.

[ConfusedL1]

Can anyone help explain the physicians privilege? I thought that statements explaning an injury were privileged, but apparently not.

Only statements that are NEEDED to render aid. Anything not needed (who shot me, what crime I did, etc.) don't count.

[ConfusedL1]

Police reports as public records. The below is correct under 804?

Criminal = hell nah never for public records
Civil = yes if based on officer's personal knowledge (i.e. not some one describing what happened).

Also, they never count as records of regularly conducted activity, but you CAN sorta get them to refresh memory.

[TheWalrus]

Can anyone help explain the physicians privilege? I thought that statements explaning an injury were privileged, but apparently not.

Only statements that are NEEDED to render aid. Anything not needed (who shot me, what crime I did, etc.) don't count.

Ok, so it it was confused 1l shot me. The confused 1l part would be admissible, but not the fact that I was shot?

[ConfusedL1]

Can anyone help explain the physicians privilege? I thought that statements explaning an injury were privileged, but apparently not.

Only statements that are NEEDED to render aid. Anything not needed (who shot me, what crime I did, etc.) don't count.

Ok, so it it was confused 1l shot me. The confused 1l part would be admissible, but not the fact that I was shot?

You need to clarify this. I don't understand what you're trying to say.

[TheWalrus]

Can anyone help explain the physicians privilege? I thought that statements explaning an injury were privileged, but apparently not.

Only statements that are NEEDED to render aid. Anything not needed (who shot me, what crime I did, etc.) don't count.

Ok, so it it was confused 1l shot me. The confused 1l part would be admissible, but not the fact that I was shot?

You need to clarify this. I don't understand what you're trying to say.

If I told the doctor treating me, that Confused 1L shot me. What all would be admissible?

[EzraFitz]

Can anyone help explain the physicians privilege? I thought that statements explaning an injury were privileged, but apparently not.

Only statements that are NEEDED to render aid. Anything not needed (who shot me, what crime I did, etc.) don't count.

Ok, so it it was confused 1l shot me. The confused 1l part would be admissible, but not the fact that I was shot?

You need to clarify this. I don't understand what you're trying to say.

If I told the doctor treating me, that Confused 1L shot me. What all would be admissible?

That statement would not be privileged generally, because you didn't state it for medical treatment. Admissible is a different story, depending on who said it (because it can't be a party admission if you try to admit it on your own behalf). It would likely be admissible to show pain or extent of injury, but you would need a hearsay exception to actually get admitted for the truth of the matter asserted.

[EzraFitz]

Can anyone flesh out embezzlement vs. larceny in this hypo? Want to make sure I have this right.

Cash register takes money from a customer.

If she puts it in her pocket directly = embezzlement. She had legal authority to take it but then converted it.
If she puts it in the cash register THEN takes it out later = larceny. She didn't have legal authority to remove it.

Neither one is embezzlement.

Why? Embezzlement is the fraudulent conversion of personal property of another by a person in lawful possession of that property.

A cashier doesn't have lawful possession of money. It's just in their temporary control.

Hmm.. It would seem that lawful temporary control is the same thing as lawful possession. I think if the cashier took the money and immediately placed it in her pocket, it would be embezzlement.

Yeah, I think taking the money from the customer and then putting it in her pocket would be embezzlement. I think the key is that the cashier is authorized to take the money from the customer, so the cashier is lawfully in possession of the money at that moment. When she decides to put it in her pocket, she is in lawful possession and then misappropriates the funds.

If she puts it in the register and then takes it out later, I think it's a closer call. The cashier isn't authorized to take cash out of the cashier for personal reasons--she could obviously take cash out for other reasons, such as to give change--but that wouldn't be the case. When she takes the money, there's a trespassory taking and carrying away with the intent to permanently deprive: a larceny. Thus, I think the key is that the cashier is technically in lawful possession at any point when she takes the money out of the register.

EDIT: fixed typo.

Thanks all. I feel vindicated.

Quick note on this: In the Simulated MBE analysis lectures, Professor Guzman incorrectly stated that pocketing the cash immediately could never be embezzlement. If you read the written explanations for that question, it correctly states that it can be embezzlement.

[TheWalrus]

Interesting, about the embezzlement. What number was that?

[malleus discentium]

Police reports as public records. The below is correct under 804?

Criminal = hell nah never for public records
Civil = yes if based on officer's personal knowledge (i.e. not some one describing what happened).

Also, they never count as records of regularly conducted activity, but you CAN sorta get them to refresh memory.

BarBri says that police reports can qualify as business records. Also, even the most beat-ass hearsay is permissible for present recollection refreshed.

[EzraFitz]

Interesting, about the embezzlement. What number was that?

93

[Puffman1234]

Police reports as public records. The below is correct under 804?

Criminal = hell nah never for public records
Civil = yes if based on officer's personal knowledge (i.e. not some one describing what happened).

Also, they never count as records of regularly conducted activity, but you CAN sorta get them to refresh memory.

BarBri says that police reports can qualify as business records. Also, even the most beat-ass hearsay is permissible for present recollection refreshed.

Wait a minute. I thought a recollection refreshed would still require a way to get past hearsay.

Say I show you an apple and it triggers a memory of a conversation you had with your coworkers. You'd still need hearsay exceptions to get those statements in. I think the same applies to recorded recollections of other person's statements, or even your own statements.

[malleus discentium]

Police reports as public records. The below is correct under 804?

Criminal = hell nah never for public records
Civil = yes if based on officer's personal knowledge (i.e. not some one describing what happened).

Also, they never count as records of regularly conducted activity, but you CAN sorta get them to refresh memory.

BarBri says that police reports can qualify as business records. Also, even the most beat-ass hearsay is permissible for present recollection refreshed.

Wait a minute. I thought a recollection refreshed would still require a way to get past hearsay.

Say I show you an apple and it triggers a memory of a conversation you had with your coworkers. You'd still need hearsay exceptions to get those statements in. I think the same applies to recorded recollections of other person's statements, or even your own statements.

Sorry--I was talking about what you can use to trigger the recollection. You're right that whatever testimony that is recollected still has to get through hearsay.

[TheWalrus]

Police reports as public records. The below is correct under 804?

Criminal = hell nah never for public records
Civil = yes if based on officer's personal knowledge (i.e. not some one describing what happened).

Also, they never count as records of regularly conducted activity, but you CAN sorta get them to refresh memory.

BarBri says that police reports can qualify as business records. Also, even the most beat-ass hearsay is permissible for present recollection refreshed.

Do they qualify as business records in a criminal trial though? For some reason I thought the rule was a police report was not allowed in the business records for a criminal trial, could be wrong though.

[malleus discentium]

Police reports as public records. The below is correct under 804?

Criminal = hell nah never for public records
Civil = yes if based on officer's personal knowledge (i.e. not some one describing what happened).

Also, they never count as records of regularly conducted activity, but you CAN sorta get them to refresh memory.

BarBri says that police reports can qualify as business records. Also, even the most beat-ass hearsay is permissible for present recollection refreshed.

Do they qualify as business records in a criminal trial though? For some reason I thought the rule was a police report was not allowed in the business records for a criminal trial, could be wrong though.

They're not allowed to be used against a criminal defendant, but not because they aren't business records/public records. They just can't be used against a criminal defendant.

[ConfusedL1]

Police reports as public records. The below is correct under 804?

Criminal = hell nah never for public records
Civil = yes if based on officer's personal knowledge (i.e. not some one describing what happened).

Also, they never count as records of regularly conducted activity, but you CAN sorta get them to refresh memory.

BarBri says that police reports can qualify as business records. Also, even the most beat-ass hearsay is permissible for present recollection refreshed.

Do they qualify as business records in a criminal trial though? For some reason I thought the rule was a police report was not allowed in the business records for a criminal trial, could be wrong though.

They're not allowed to be used against a criminal defendant, but not because they aren't business records/public records. They just can't be used against a criminal defendant.

What does this mean? They qualify for the hearsay exception but it doesn't matter because another rule bars them completely?

[TheWalrus]

Police reports as public records. The below is correct under 804?

Criminal = hell nah never for public records
Civil = yes if based on officer's personal knowledge (i.e. not some one describing what happened).

Also, they never count as records of regularly conducted activity, but you CAN sorta get them to refresh memory.

BarBri says that police reports can qualify as business records. Also, even the most beat-ass hearsay is permissible for present recollection refreshed.

Do they qualify as business records in a criminal trial though? For some reason I thought the rule was a police report was not allowed in the business records for a criminal trial, could be wrong though.

They're not allowed to be used against a criminal defendant, but not because they aren't business records/public records. They just can't be used against a criminal defendant.

What does this mean? They qualify for the hearsay exception but it doesn't matter because another rule bars them completely?

Yep.

[Yugihoe]

Can someone help me with this? Got an MBE con law question that was to the tune of:

A town passed an ordinance banning non-related persons from living together. A couple sued for wrongful eviction because they argued the ordinance violated their fundamental right to live together.

A wrong answer was that the ordinance did not meet the rational basis standard of review. The reason that this answer is wrong is because a violation of a fundamental right falls under strict scrutiny and not rational basis.

The right answer said that there is no fundamental right violated because that fundamental right only applies to relatives. My question is, what level scrutiny does the court apply then? It wouldn't be SS because there is no violation of fundamental rights, but it also isn't rational basis (which is what I thought it would be). Any ideas?

Late, but I think our Barbri guy said it would be Substantial basis.

Are you sure? I emailed Kaplan and they said their explanation was wrong and SCOTUS used rational basis.

[TheWalrus]

Can someone help me with this? Got an MBE con law question that was to the tune of:

A town passed an ordinance banning non-related persons from living together. A couple sued for wrongful eviction because they argued the ordinance violated their fundamental right to live together.

A wrong answer was that the ordinance did not meet the rational basis standard of review. The reason that this answer is wrong is because a violation of a fundamental right falls under strict scrutiny and not rational basis.

The right answer said that there is no fundamental right violated because that fundamental right only applies to relatives. My question is, what level scrutiny does the court apply then? It wouldn't be SS because there is no violation of fundamental rights, but it also isn't rational basis (which is what I thought it would be). Any ideas?

Late, but I think our Barbri guy said it would be Substantial basis.

Are you sure? I emailed Kaplan and they said their explanation was wrong and SCOTUS used rational basis.

No, I'd definitely go with Kaplan over me.

[Effingham]

This one keeps bugging me...

Developer, from state A, files a breach of contract action against General Contractor, from state B. General Contractor impleads Subcontractor from state B properly for indemnification. General Contractor then also files a tort claim against Subcontractor claiming that Subcontractor stole $80,000 worth of equipment from General Contractor at the work-site. Answer is that General Contractor can only properly assert the indemnity claim, because the federal court lacks subject matter jurisdiction over the tort claim. The explanation states that the tort claim is unrelated to the Developer's claim in federal court. Is this accurate? How narrow is the common nucleus of operative fact analysis?

[ConfusedL1]

This one keeps bugging me...

Developer, from state A, files a breach of contract action against General Contractor, from state B. General Contractor impleads Subcontractor from state B properly for indemnification. General Contractor then also files a tort claim against Subcontractor claiming that Subcontractor stole $80,000 worth of equipment from General Contractor at the work-site. Answer is that General Contractor can only properly assert the indemnity claim, because the federal court lacks subject matter jurisdiction over the tort claim. The explanation states that the tort claim is unrelated to the Developer's claim in federal court. Is this accurate? How narrow is the common nucleus of operative fact analysis?

OK. SI think it's because the test for supplemental jurisdiction looks at the same transaction or occurrence as the underlying case. So, the breach of the contract claim just isn't the same transaction or occurrence because the common nucleus of common fact for the breach is (I'm assuming from the facts here) just not the same as the breach.

[dlrbfl]

I know that parol evidence rule does not bar introduction of evidence of condition precedent.

But in the Themis Property outline, it says "When the grantor transferred the deed to the grantee subject to an oral condition (i.e., a condition that does not appear in the deed), parol evidence is not admissible, and the condition is not enforceable."

Is this an exception to the exception that evidence of condition precedent is admissible despite parol evidence rule?

[Yugihoe]

This one keeps bugging me...

Developer, from state A, files a breach of contract action against General Contractor, from state B. General Contractor impleads Subcontractor from state B properly for indemnification. General Contractor then also files a tort claim against Subcontractor claiming that Subcontractor stole $80,000 worth of equipment from General Contractor at the work-site. Answer is that General Contractor can only properly assert the indemnity claim, because the federal court lacks subject matter jurisdiction over the tort claim. The explanation states that the tort claim is unrelated to the Developer's claim in federal court. Is this accurate? How narrow is the common nucleus of operative fact analysis?

Pretty narrow. The anchoring claim (dev v. gen contractor) is a breach of contract action. The tort claim that gen contractor has against sub contractor is not going to have a common operation of fact or questions of law. Contract law is different, and presumably so are facts regarding a separate tort action.