According to a complaint filed on July 21 in the Middle District of Florida, ExamSoft Worldwide, Inc., a company that sells software allowing users to take exams on their own computers while preventing them from accessing anything but the test itself, is liable for software glitches that caused a test taker to be falsely accused of cheating on the Florida bar exam.
Plaintiff Edwin J. Prado, a long-practicing attorney and the President of the Puerto Rico Bar Association for the State of Florida, paid for and downloaded a copy of ExamSoft’s software in advance of the exam in July 2017. The plaintiff claims he finished the essay portion of the test within the allotted three-hour window, but was notified several weeks later that ExamSoft’s records showed that he exceeded the time limit by 1 minute and 4 seconds, typing an additional 42 characters during that time.
According to the complaint, Mr. Prado spent in excess of $25,000 to prepare and present his case to the Ethics Committee of the Florida Bar, including retaining a cybersecurity expert specializing in computer forensics. The expert determined that it was “highly probable” that either ExamSoft’s algorithms, its use of system resources, or both were flawed or misconfigured, leading the computer to go into “suspend mode” on two separate occasions and coinciding with the program’s crash. In turn, the plaintiff alleges, it was “impossible to guarantee” the actual amount of time spent on the exam “by relying on the software.”
The plaintiff further contends that although he eventually prevailed in his case before the Ethics Committee, his admission to the Florida bar was delayed by more than nine months, he suffered grave emotional distress, and lost out on “many potentially lucrative opportunities in Florida,” due to the unwarranted postponement and his investment of financial resources to resolve the debacle.
The complaint asserts six tort and contract causes of action in law and equity for compensatory and punitive damages, including negligence, for failure to “exercise reasonable and due care in the creation and maintenance of the infrastructure for ExamSoft’s software,” and product liability for software that was “defectively designed, defectively manufactured, or did not contain adequate instructions or warnings to ensure its proper use.” Other causes of action include violation of the Florida Deceptive and Unfair Trade Practices Act and misleading advertising.
The plaintiff is represented by Manuel Franco, another attorney at his law firm.
