Ferrari v. Johnson & Johnson, Inc.

Decision Date21 May 2019
Docket NumberAC 41170
Citation210 A.3d 115,190 Conn.App. 152
CourtConnecticut Court of Appeals
Parties Raymond C. FERRARI v. JOHNSON AND JOHNSON, INC., et al.

Andrew W. Skolnick, for the appellant (plaintiff).

W. Kennedy Simpson, pro hac vice, with whom was Christopher J. Lynch, for the appellees (defendants).

Alvord, Sheldon and Pellegrino, Js.

ALVORD, J.

The plaintiff, Raymond C. Ferrari, appeals from the summary judgment rendered by the trial court in favor of the defendants, Johnson & Johnson, Inc., and Synthes, Inc. The plaintiff claims that the court erred by holding that (1) he cannot prove that the defendants' product was defective, or that the product's alleged defect caused the plaintiff's injury, without the use of expert testimony, and (2) the learned intermediary doctrine barred the plaintiff's failure to warn claim. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. On August 17, 2012, the plaintiff underwent spinal surgery at Hartford Hospital. The procedure included a posterolateral fusion, in which the plaintiff's surgeon, Dr. Paul Schwartz, implanted various components of the defendants' product, the Synthes Matrix spinal system (product). This system included stabilizing titanium rods that were used in the fusion of the plaintiff's spine. The plaintiff's surgery required a junction of the new titanium hardware with a previously placed steel construct. On April 4, 2013, the plaintiff underwent a second surgery, which revealed a fracture of the left titanium rod at the junction of the new titanium instrumentation with the old steel construct.

On April 7, 2016, the plaintiff served a four count complaint on the defendants. The first two counts alleged product defect claims pursuant to the Connecticut Product Liability Act, General Statutes § 52-572m et seq. Specifically, the plaintiff set forth claims involving (1) a failure to warn defect1 and (2) a design defect.2 The third and fourth counts alleged breaches of express and implied warranties.

The deadline for the plaintiff to disclose any expert witnesses was January 15, 2017, pursuant to the parties' mutually agreed on scheduling order. The plaintiff failed to disclose any expert witnesses.3

On April 17, 2017, the defendants filed a motion for summary judgment, arguing that (1) the plaintiff had failed to disclose an expert witness, (2) the plaintiff could not establish that the product was defective, (3) comment (k) to § 402A of the Restatement (Second) of Torts barred the plaintiff's claims, (4) the learned intermediary doctrine barred the plaintiff's claims, and (5) the plaintiff could not establish causation. On July 10, 2017, the plaintiff filed an objection to the defendants' motion for summary judgment, claiming that a product defect can be inferred from the evidence without expert testimony and that genuine issues of material fact existed as to whether there were adequate warnings. A hearing on the defendants' motion for summary judgment was held on July 31, 2017.

The court issued its memorandum of decision on November 28, 2017, granting the defendants' motion for summary judgment. This appeal followed. Additional facts and procedural history will be set forth as necessary.

Before addressing the plaintiff's claims, we set forth the applicable standard of review of a trial court's ruling on a motion for summary judgment. "Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) DiMiceli v. Cheshire , 162 Conn. App. 216, 221–22, 131 A.3d 771 (2016).

"Once the moving party has met its burden [of production] ... the opposing party must present evidence that demonstrates the existence of some disputed factual issue.... [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.... The presence ... of an alleged adverse claim is not sufficient to defeat a motion for summary judgment." (Citation omitted; internal quotation marks omitted.)

Episcopal Church in the Diocese of Connecticut v. Gauss , 302 Conn. 408, 422, 28 A.3d 302 (2011), cert. denied, 567 U.S. 924, 132 S.Ct. 2773, 183 L.Ed.2d 653 (2012). "Our review of the decision to grant a motion for summary judgment is plenary.... We therefore must decide whether the court's conclusions were legally and logically correct and find support in the record." (Internal quotation marks omitted.) DiMiceli v. Cheshire , supra, 162 Conn. App. at 222, 131 A.3d 771.

I

The plaintiff first claims that the trial court erred by holding that he cannot prove that the defendants' product was defective, or that the product's alleged defect caused the plaintiff's injury, without the use of expert testimony. In response, the defendants argue that expert testimony was required for the plaintiff to prevail on his claims, as a matter of law. We agree with the defendants.

The following additional facts and procedural history are relevant to our resolution of this claim. The defendants submitted numerous exhibits in support of their motion for summary judgment, including Dr. Schwartz' notes, the transcript of Dr. Schwartz' deposition, and a copy of the product insert that contained warnings with respect to the use of the defendants' product.

The product's insert explained that nonunion4 could result from the product's use. The insert provided in relevant part: "These devices can break when subjected to the increased loading associated with delayed union or nonunion. Internal fixation appliances are load-sharing devices which hold a fracture in alignment until healing occurs. If healing is delayed, or does not occur, the implant could eventually break due to metal fatigue. Loads produced by weight-bearing and activity levels will dictate the longevity of the implant. The patient should understand that stress on an implant can involve more than weight-bearing. In the absence of solid bony union, the weight of the limb alone, muscular forces associated with moving a limb, or repeated stresses of apparent relatively small magnitude, can result in the failure of the implant." (Emphasis omitted.)

In its memorandum of decision, the trial court concluded that, without expert testimony to establish the existence of a defect and the element of causation, the plaintiff could not, as a matter of law, maintain a breach of warranty claim or a strict liability design defect claim against the defendants. The court concluded that, under the modified consumer expectation test,5 the plaintiff could not prove that the defendants' product was defective without the use of expert testimony. With respect to causation, the trial court determined that the product was of a complex design, and that "[e]xpert testimony is thus essential, because the claims will raise and address complex and highly technical concepts and questions, which are clearly beyond the everyday experiences of the ordinary consumer."

We begin by setting forth the applicable standard of review and relevant legal principles that guide our analysis. "Our Supreme Court has described the essential elements of a strict products liability claim as follows: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in the condition." (Emphasis omitted; internal quotation marks omitted.) Theodore v. Lifeline Systems Co ., 173 Conn. App. 291, 308, 163 A.3d 654 (2017).

The plaintiff first argues that, with respect to whether the product was in a defective condition and was unreasonably dangerous to the consumer or user, the ordinary consumer expectation test was applicable and, therefore, he was not required to provide expert testimony to prove the product's defect.6 We disagree.

Under the ordinary consumer expectation test, "[t]o be considered unreasonably dangerous, the article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." (Internal quotation marks omitted.) Izzarelli v. R.J. Reynolds Tobacco Co ., 321 Conn. 172, 185, 136 A.3d 1232 (2016). "Expert testimony on product design is not needed to prove the product's defect ...." Id., at 203, 136 A.3d 1232.

In Izzarelli, however, our Supreme Court held that the modified consumer expectation test is our primary strict product liability test. Id., at 194, 136 A.3d 1232. The court explained the limited circumstances in which the ordinary consumer expectation test applied: "The ordinary consumer expectation test is reserved for cases in which the product failed to meet the ordinary consumer's minimum safety expectations, such as res ipsa type cases." (Emphasis in original.) Id. "In other words, the ordinary consumer expectation test would be appropriate when the incident causing injury is so bizarre or unusual that the jury would not need expert testimony to conclude that the product failed to meet the consumer's expectations." Id., at 191, 136...

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