Farrell v. Johnson & Johnson

• Decision Date: 15 April 2020
• Docket Number: SC 20225
• Citation: 335 Conn. 398,238 A.3d 698
• Court: Connecticut Supreme Court
• Parties: Mary Beth FARRELL et al. v. JOHNSON AND JOHNSON et al.

335 Conn. 398

238 A.3d 698

Mary Beth FARRELL et al.

v.JOHNSON AND JOHNSON et al.

SC 20225

Supreme Court of Connecticut.

Argued October 25, 2019

Officially released April 15, 2020^*

Brenden P. Leydon, with whom, on the brief, was Jacqueline E. Fusco, Stamford, for the appellants (plaintiffs).

David J. Robertson, with whom were Heidi M. Cilano and, on the brief, Malaina J. Sylvestre, Bridgeport, for the appellees (defendant Brian J. Hines et al.).

Robinson, C.J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

ROBINSON, C.J.

This certified appeal requires us to consider (1) when exhibits that otherwise would constitute inadmissible hearsay may be admitted to prove notice on the part of the defendant, Brian J. Hines, and (2) whether the tort of innocent misrepresentation extends to communications made by a physician during the provision of medical services. The plaintiffs, Mary Beth Farrell and Vincent Farrell,¹ appeal, upon our grant of their petition for certification,² from the judgment of the Appellate Court affirming the judgment of the trial court, rendered after a jury trial, in favor of the defendants Hines and Urogynecology and Pelvic Surgery, LLC,³ on numerous tort claims, including informed consent, innocent misrepresentation, and negligent misrepresentation, following an unsuccessful pelvic mesh surgery on Mary Beth. See Farrell v. Johnson & Johnson , 184 Conn. App. 685, 688, 195 A.3d 1152 (2018). On appeal, the plaintiffs challenge the Appellate Court's conclusions that the trial court properly (1) excluded two medical journal articles from evidence as hearsay when they had been offered to prove notice, and (2) directed a verdict for the defendants on their innocent misrepresentation claims. We disagree and, accordingly, affirm the judgment of the Appellate Court.

The Appellate Court's opinion sets forth the following background facts and procedural history. "At some point in 2007, Mary Beth's gynecologist diagnosed her with pelvic organ prolapse. As her condition worsened, her gynecologist recommended that she see Hines, a [urogynecologist], with whom she consulted in late October, 2008. Hines explained that implanting a mesh product into Mary Beth would be the best surgery to treat her condition. Mary Beth agreed to the surgery, and Hines performed the procedure on November 19, 2008." (Footnote omitted.) Id., at 688–89, 195 A.3d 1152.

"Approximately four days after Mary Beth had returned home from the surgery, she experienced excessive bleeding and abdominal pain. Hines initially diagnosed her with two large pelvic hematomas

. Mary Beth continued to follow up with Hines; however, she continued experiencing pain. In February, 2009, Mary Beth underwent another surgery during which Hines attempted to remove the mesh product that he had implanted in her. Hines removed as much of the mesh as possible; however, some of the mesh could not be removed because it was embedded in tissue. After a second surgery to remove the mesh in the summer of 2009, Mary Beth still experienced pain and was diagnosed with damage to the pudendal and obturator nerves." Id., at 689, 195 A.3d 1152.

"Mary Beth underwent several additional procedures, such as nerve blocks

and mesh removal, but these procedures did not eliminate the pain. The pain that she experienced eventually caused her to resign her position as a teacher so she could focus on her health. At the time of trial in January, 2016, Mary Beth was considering additional surgery, which she described as ‘major.’ " Id.

"The plaintiffs served their original complaint on November 15, 2011. The plaintiffs filed the operative, third amended complaint on December 4, 2015, alleging the following claims against the defendants: (1) lack of informed consent; (2) innocent misrepresentation; (3) negligent misrepresentation; (4) intentional misrepresentation; and (5) loss of consortium." Id., at 690, 195 A.3d 1152.

"The plaintiffs' case was tried to a jury in January, 2016. On January 19, 2016, the court directed a verdict in favor of the defendants on the plaintiffs' innocent misrepresentation claim. On January 20, 2016, the jury returned a verdict for the defendants on the remaining counts, and the court [rendered] judgment on July 13, 2016. The plaintiffs' motion to reargue was denied ...." Id.

The plaintiffs then appealed from the judgment of the trial court to the Appellate Court, raising several issues, including that the trial court (1) "abused its discretion by excluding from evidence as hearsay two journal articles," and (2) "improperly directed a verdict in favor of the defendants on the plaintiffs' claim of innocent misrepresentation ...." Id., at 688, 195 A.3d 1152. The Appellate Court agreed with the defendants' argument that the trial court did not abuse its discretion by excluding the two journal articles regarding the experimental nature of the surgery on the ground that they were inadmissible hearsay. Id., at 699, 195 A.3d 1152. In addition, the Appellate Court concluded that, under Johnson v. Healy , 176 Conn. 97, 405 A.2d 54 (1978), and § 552C of the Restatement (Second) of Torts, the trial court properly directed a verdict for the defendants on the innocent misrepresentation claim because "innocent misrepresentation claims primarily apply to business transactions, typically between a buyer and seller, and ... the theory is based on principles of warranty." Farrell v. Johnson & Johnson , supra, 184 Conn. App. at 703, 195 A.3d 1152. Accordingly, the Appellate Court unanimously rendered judgment affirming the judgment of the trial court. Id., at 708, 195 A.3d 1152. This certified appeal followed. See footnote 2 of this opinion. Additional facts and procedural history will be set forth as necessary.

I

We first consider whether the Appellate Court properly upheld the trial court's exclusion from evidence of the two articles discussing the experimental nature of the mesh surgery as hearsay. The record reveals the following additional facts and procedural history that are relevant to our resolution of this claim. The plaintiffs sought to introduce into evidence three journal articles for notice purposes, two of which are at issue in this appeal. Those two articles were (1) American College of Obstetrics & Gynecology, "Pelvic Organ Prolapse," 109 ACOG Prac. Bull. 461 (2007) (ACOG Practice Bulletin), and (2) D. Ostergard, "Lessons from the Past: Directions for the Future," 18 Intl. Urogynecology J. 591 (2007) (Ostergard article). At trial, Hines testified that he received the International Urogynecology Journal as part of his membership in a professional society and that he had read articles in Obstetrics & Gynecology, but he was not aware of and had not read the two specific articles at issue.

The plaintiffs sought to admit the following statement from the ACOG Practice Bulletin: "Given the limited data and frequent changes in marketed products (particularly with regard to type of mesh material itself, which is most closely associated with several of the postoperative risks, especially mesh erosion), the procedures should be considered experimental and patients should consent to surgery with that understanding." With respect to the Ostergard article, the plaintiffs sought to admit the following three statements: (1) "a physician can inform the patient of [the procedure's] experimental nature"; (2) "[t]here is a need for more information with specific graft materials to clarify success and adverse event rates"; and (3) "[w]ithout an adequate evidence base, practitioners cannot determine whether an innovative technique is the most safe and effective method for treating a patient. Without adequate data on the risks and benefits of new treatments, patients are unable to provide a true informed consent."

Both parties submitted briefing on the admissibility of the articles, and the trial court heard argument on January 12, 2016. The trial court, in its ruling, agreed that the plaintiffs were offering the articles for their truth and that they therefore must be excluded as inadmissible hearsay.⁴

On appeal, the plaintiffs argue that the journal articles were admissible because they were offered for nonhearsay purposes, specifically, to show that Hines was on notice of a controversy regarding mesh products. In response, the defendants counter that the trial court properly excluded the articles as hearsay because the plaintiffs failed to show that Hines had read the articles and, therefore, that the articles could not be admitted for notice. The defendants also argue that the articles' probative value was outweighed by their prejudicial effect and that, even if the articles were admissible, any error was harmless.

We begin with the standard of review applicable to a trial court's evidentiary decisions. "[We] examine the nature of the ruling at issue in the context of the issues in the case.... To the extent [that] a trial court's admission of evidence is based on an interpretation of the [Connecticut] Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. They require determinations about which reasonable minds may not differ; there is no ‘judgment call’ by the trial court, and the trial court has no discretion to admit hearsay in the absence of a provision providing for its admissibility.... We review the trial court's decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion.... In other words, only after a trial court has made the legal determination that a particular statement is or is not hearsay, or is subject to a hearsay exception, is it vested with the discretion to admit or to bar the evidence based upon relevancy, prejudice, or other legally appropriate grounds related to the rule of evidence under which admission is being sought."⁵ (...