Reference no: EM133655923
Assignment:
Viva is a blood test manufacturer. Instead of relying on needles, lab technicians and expensive equipment, Viva offers patients the ability to test a few drops of blood for a catalogue of 30+ of the most common plasma blood tests, while at home, using Viva's proprietary blood testing platform - the Viva Kit.
This Kit contains proprietary blood plasma separator process along with a disposable electronic chip that tests blood plasma from the few drops of blood through the use of reagents built into the Viva Kit's electronic chip, which reacts to the blood plasma and generates electric pulses indicating different levels of chemicals in the blood.
The information from the electronic chip is then instantly transmitted to Viva's software program that allows Viva to process the results and then provide patients and their doctors with test results within 24 hours. Viva wants to sell its invention to the massive healthcare market.
Once the product is developed, Viva is approved to sell its technology by Health Canada. Viva sells 10,000 units to the general public, but Viva discovers that the Viva Kit has a potential flaw in one of its electronic chip systems.
In extreme conditions of cold, wet, or heat, the Viva Kit's ability to detect chemical levels in blood plasma is impeded such that it results in a 10% increase in the probability of erroneous results.
Once the product is launched there are 20 consumer complaints and these parties wish to file a lawsuit against Viva. Jack Smith, an employee of a competitor, MediAssist, uses his personal Twitter account to disparage Viva, saying Viva is another Theranos, and the company is run by fraudsters like Elizabeth Holmes, created a faulty product, and knowingly exposed customers to risk and failed to protect them from harm and injury. The employee of MediAssist insists that he said this in a personal capacity.
MediAssist has also created a competitor home test with a name that is the translated name in English of Viva, which is called the "Life Test" with the slogan "Live your Life!" Some Quebec consumers are not sure because of the "Life" name if Viva created it.
Viva created a standard form contract for customers that purchased the Viva. The contract states that under no circumstances would Viva be held liable for test results if they are faulty. The complaining Viva customers have stated they believe this contract is unenforceable.
You have been asked to provide a legal opinion which must contain the following:
(1) Identifies the key facts and the legal issues
(2) What legal remedies are available to Viva? What about the consumer complainants?
(3) What should Viva as a manufacturer with respect to the Viva Kits in these circumstances, if anything?