Heather Heart (here on your left courtesy of Getty Images) is 17 years old and from Smalltown, USA.  She is a luger who is representing the United States of America in the Games of the XXI Olympic Winter Games in Vancouver, Canada  She represents not only them, but all of Smalltown, and even all of the USA!

Everyone is a little nervous, but also filled with joy and excitement.  Added to all of this, Heather is one of the favorites in Luge.  She is America's hope in an event in which the United States has not won a medal in three Olympics!  Everything is going well.  However, horror of horrors, during practice she hits her hand hard ice and her hand begins to swell and hurt terribly!  It is so bad, that she doesn't know if she can compete or not.  What should she do? 

The team trainer and doctor take a look at her. They want to know how she feels and if she can compete.   She wants to call her Mom and Dad back in Smalltown to tell them the news and ask what she should do.  But the phone is busy! What should she do?  As they are talking boyfriend Billy says, "Say, back home when one of our horses hits a leg and it swells up we use DMSO.  It's a miracle drug and it will reduce the swelling as fast as you can say, 'Loonie and Toonie'  and I just happened to bring some with me from home!" 

The DMSO gel is manufactured by DMSO Unlimited, and the package indicates its use on horses and contains instructions for horse application.  But, it is well known that many people in the United States use it as a homeopathic remedy.  China has no regulations on its use.  And you know from the news that some professional and even some Olympic athletes will do almost any to win. 

She can't let her coach and teammates down.  She can't let her Mom and Dad down.  Her parents have sacrificed everything for her!  Everyone in Smalltown has contributed to send some of her family members to the Games.  She has worked her entire life for this moment!    She can't let down her family.  She can't let down her teammates.  She can't let down the USA!  All she hears is thousands of people literally chanting, "USA! USA! USA!" and calling her name, "Heather! Heather! Heather!"  She goes ahead and applies the DMSO to her injured hand, and truly as a miracle, the swelling immediately goes down!  She wins the Gold Medal!

Everything is going well.  But, the last couple of weeks she's been feeling a little strange.  She doesn't feel well and she thinks it might be related to the DMSO!  

She goes to Howard Howe of the law firm of Dewey, Cheatem and Howe.  Howie tells her that she may have a product liability claim.  Being a good attorney he tells her the requirements, differences and the pros and cons between claims of breach of warranty, negligence (including negligence per se and res ipsa loquitor) and strict liability in tort (strict products liability). 

She's worried and confused!  She also is worried that her decision to take the DMSO might hurt her chances of winning, this time in court.  She is in an MBA Program now and, in fact, in a Legal Environment of Business class. What should she do! 

Part I – Assume you are advising the plaintiff, Heather. 

a.  Analyze the facts of the case and decide upon a theory of liability that you believe is the claim under which the plaintiff is most likely to prevail in the lawsuit. 

b.  Discuss the elements of that theory of liability and the best arguments the plaintiff can make to win under that theory. 

 Part II – Assume you are the Vice President for Marketing at the defendant, DMSO Unlimited.

a.  Discuss Heather's claim from the defendant’s position, including the defenses that DMSO Unlimited can raise to counter Heather's theory of liability and the best arguments the defendant can make to prevail in the lawsuit.       

b.  Discuss

1) actions your company can take to minimize the risk of this type of claim in the future, and

2) steps your company should take to respond to customer complaints, including how customer service should respond if it gets a complaint letter or a pattern of letters from someone like Heather about "tingling", and when, short of a lawsuit being filed, should legal counsel be informed about such complaints?

Do not just recite what is in the notes.  For example, do not just give me the elements of negligence.  Apply what you have learned in your readings and in class to this case!

Please don't tell me you don't have all the information.  In life, you never get all the information. 

Your Executive Memo should be, at most, three pages.

Please e-mail your assignment by ____________.