Spring 2000

Prof. Edmundson Your exam number: ___
 
 

1. This is a closed-book, closed-notebook examination. Remember the Honor Code.
 

2. The examination is to be answered in the blue books provided for you. What is not in the blue book cannot be credited.
 

3. Put your EXAMINATION NUMBER ONLY in the space provided at the top of this sheet and on each blue book. DO NOT PUT YOUR NAME ON YOUR EXAM PAPERS.
 

4. When you have finished the examination, number your blue books to show how many you used and in which order (e.g. "1 of 2" and then "2 of 2"). Then please put the examination questions inside your first blue book, put any additional blue books inside the first, and then put the exam and blue books, so arranged, on the table at the front of the room. You must return the exam.
 

5. You will have three hours to work on the examination.
 

6. If more facts are needed to answer any part of a question, state what they are and why they are needed. Organization will be counted in determining your grade. Think BEFORE you begin to write. Illegible responses cannot be credited. Concise answers are welcomed.
 
 

The United States Court of Appeals for the Umpteenth Circuit has taken an appeal in the case of World Trade Center et al. v. Arcanite Corp et al. In the present posture of the case, the following facts are assumed to be true:
 

On February 26, 1993, a terrorist bomb, which had been fabricated out of ammonium nitrate, urea, and nitric acid, exploded in an underground parking garage at the World Trade Center in New York City, causing six deaths, many injuries, and massive property damage.
 

Defendant Agro-Agro North America, Inc., and Dyno Ignobel Inc., formerly known as Taintso, Inc., manufactured, designed, marketed, distributed and/or sold the ammonium nitrate used by the terrorists. Defendant Arcanite Corporation manufactured, designed, marketed, distributed and/or sold the urea used by the terrorists. The exact proportion of ammonium nitrate and urea in the bomb is not known.
 

The ammonium nitrate and urea purchased by the terrorists were sold in "prill" form, i.e., a white, round, hardened droplet about the size of the tip of a ball point pen. The prills were manufactured to be used as fertilizer. The ammonium nitrate prills can be rendered explosive by the addition of fuel oil or other sensitizing substances; the urea prills can be rendered explosive by the addition of nitric acid and water (forming urea nitrate). The terrorists rendered the prills explosive by adding these substances; the prills are not explosive in and of themselves.
 

At least two earlier incidents, similar to the World Trade Center bombing, were widely known at the time. First, an explosion of ammonium nitrate over fifty years earlier destroyed two ships docked at Texas City, Texas, killing 468 persons and causing extensive damage in the city. Second, more than thirty years earlier, anti-war protesters used ammonium nitrate to bomb the Mathematics Research Building at the University of Wisconsin, leading to injuries, death and property damage. Subsequent to the World Trade Center bombing, an ammonium nitrate bomb demolished the Federal Building in Oklahoma City, at a cost of 68 lives, including those of children.
 

In 1968, Samuel Porter patented a process that rendered ammonium nitrate fertilizers non-detonable. The process called for adding five to ten percent of diammonium phosphate, a high grade of fertilizer, to ammonium nitrate at a nominal additional cost. When the patent was made available to ammonium nitrate manufacturers, one of the explicit purposes was to deter the criminal use of ammonium nitrate in bombs. In 1985, the Porter patent entered the public domain, making the process available to all manufacturers free of license or royalty. The danger of these products prompted governments here and abroad to attempt to regulate their manufacture and distribution. Specifically, in response to the University of Wisconsin bombing, several states introduced legislation to require that all ammonium fertilizers be desensitized by a chemical agent (as described in the Porter patent) to reduce, if not eliminate, the explosive properties of ammonium nitrate. The legislative efforts were allegedly well publicized, including within the fertilizer industry, but various fertilizer manufacturers resisted the legislation, leading to its ultimate defeat.
 

In addition, in 1975, the European Economic Community Council issued a directive that established (1) strict standards for the formulation of solid ammonium nitrate and (2) detonation tests that could be required by member countries to ensure that fertilizer sold in those countries had a low potential for use as explosive. Belgium, Denmark, Germany and the Netherlands prohibited the sale of certain ammonium nitrate fertilizers. France mandated that all ammonium nitrate fertilizer be tested by detonation.
 

Three years prior to the EEC directive, terrorist bombings in Northern Ireland and the Republic of Ireland prompted the United Kingdom and Ireland to enact regulations that were even more stringent. Those regulations limited the amount of nitrate that could be used in fertilizer products and required the addition of calcium, sulfates, and other materials to reduce their explosiveness.
 

Information about urea and the means to desensitize it was similarly well known, yet not utilized, prior to the World Trade Center bombing. It was known that the addition of phosphate and other additives to urea prills would decrease or eliminate their use as explosive and energetic materials. Explosives made of urea nitrate were used in the Middle East, South America, Pakistan and the United States prior to the World Trade Center bombing. In 1992, the sales of urea and ammonium nitrate fertilizer were banned in Peru as a result of the extensive use of urea and ammonium nitrate prills in explosives set off by the Shining Path terrorists.
 

The above account of the facts is taken from official documents posted on the World Wide Web, at a website maintained by a private organization, the Bureau of Legal Affairs.
 

Subsequent to the World Trade Center bombing, Arcanite test-marketed a urea fertilizer that had been desensitized by the addition of a certain sulfate compound, known as Binthere, intended to reduce the explosiveness of urea. The test batches were sold through Greenly, Inc., a distributor, to growers in Florida and Georgia, including Bushmaster Farms, a nursery specializing in ornamental plants. Azaleas grown by Bushmaster, and treated with Arcanite urea containing Binthere, displayed an unattractive dulling of their blooms, and the entire crop was discarded as unsalable. Soil testing conducted on behalf of Bushmaster revealed the presence of the Binthere mixed with trace amounts of a contaminant, known as Dunthat. The synthesis of Binthere may yield measurable amounts of Dunthat as a by-product. Binthere is known to be safe in agricultural applications; but even minute quantities of Dunthat, a powerful herbicide, can damage crops. The packaging in which the fertilizer was sold to Bushmaster does not list Binthere or Dunthat among its ingredients, but it does contain language disclaiming any and all warranties.

QUESTION I (60% of total points):

The Arcanite file is being transferred to another senior partner in the firm; you are assigned to draft a memorandum to bring her "up to speed" on Arcanite's potential liabilities regarding both the World Trade Center and Bushmaster Farms facts. Paying close attention to the above facts, and giving reasons to support your conclusions, discuss theories of recovery, their likelihood of success, and the extent of Arcanite's exposure to liability, if any.
 

FURTHER DEVELOPMENTS
 

Samuel "Skip" Porter is a retired chemist who lives in Throne Fountain, Georgia, in the northwestern corner of the state. He is not the Samuel Porter who, in 1968, patented a process that renders ammonium nitrate fertilizers non-detonable. The only significant similarities between the Skip Porter and the other Samuel Porter are that both are chemists and both are named Samuel Porter.
 

Clayton Grommet publishes the Throne Fountain Mountainaire, a tabloid consisting primarily of classified and other advertisements, but containing occasional feature stories and calendars of local events. The Mountainaire appears on an irregular basis, usually eight times a year, and is circulated free-of-charge via distribution points in local groceries and convenience stores.
 

One morning, while surfing the World Wide Web, Grommet runs across that portion of the opinion in World Trade Center et al. v. Arcanite Corp et al. which is excerpted in the statement of facts in Question I, above. Seeing the reference to "Samuel Porter...chemist," Grommet says aloud "Holy smokes! I bet that's Skip Porter. The rascal!" Overheard by his wife, Elvira, Grommet explains to her that he is looking at a webpage on which their neighbor, Skip Porter, is mentioned in connection with the World Trade Center bombing. Vera takes no interest but, although he and Skip Porter are only causal acquaintances, Grommet decides it would be amusing and enlivening to include an item about Skip Porter in the next issue of the Mountainaire. Before going further, Grommet leaves a message on Skip's answering machine asking him to get in touch, but Skip, a reclusive soul, does not return the call. The item, as it appears in the next issue of the Mountainaire, reads as follows.
 
 

Local Chemist Linked to World Trade Center Bombing

If we'd only listened to him, our own Samuel Porter might have prevented the tragic World Trade Center bombing, and countless other terror bombings like it. The terrorist bomb that killed hundreds back in 1992 was made from ordinary fertilizer, the same ammonium nitrate stuff that you will find always in stock at Dougherty's Feed & Supply on Main Street. But way back in 1968 Samuel Porter had already patented a cheap and easy way to prevent this kind of terroristic abuse. Did we listen? Heck, No. No more than we listened to J. Robert Oppenheimer, the father of the A-bomb, who tried to warn us against the arms race. But thanks for trying, Skip and J. Robert.

After the item appears in the Mountainaire, Skip Porter's past becomes a hot topic of conversation in Throne Fountain. Bertel Sparks remembers that J. Robert Oppenheimer lost his security clearance because of Communist leanings, and wonders whether Skip Porter has Communist leanings as well. Virgil Ames has a hunch that Skip Porter must be in favor of confiscating guns if he's tried to make it easier for the government to keep explosives out of citizens' hands. Mary Sue Tingle thinks Skip Porter invented a way to turn fertilizer into an explosive, and then had regrets. Prunella Clinkscale worries that Skip Porter may have a secret explosives lab in his house, like Ted Kaczynski, the "Unabomer."
 

Skip Porter himself is embarrassed, humiliated, mortified, and sickened when he reads the item in the Mountainaire. He is getting "hang up" calls in the middle of the night and, at other times, calls from people who want to talk to him about his past. He won't leave his house for fear of being pointed at and talked about. The only people Skip wants to talk to now are his psychiatrist and his lawyer, and only by telephone.

QUESTION II (40% of total points):

You are assigned to draft a memorandum for the attorney who represents Skip Porter. The memorandum should address the liability and damages issues raised by all of the above facts.