Breen v. Synthes-Stratec, Inc.

• Decision Date: 27 May 2008
• Docket Number: No. 28215.,28215.
• Citation: 108 Conn.App. 105,947 A.2d 383
• Court: Connecticut Court of Appeals
• Parties: Peter BREEN v. SYNTHES-STRATEC, INC.

947 A.2d 383

108 Conn.App. 105

Peter BREEN v. SYNTHES-STRATEC, INC.

No. 28215.

Appellate Court of Connecticut.

Argued January 10, 2008.

Decided May 27, 2008.

Vincent F. Sabatini, with whom, on the brief, was James V. Sabatini, Newington, for the appellant (plaintiff).

W. Kennedy Simpson, pro hac vice, Louisville, KY, with whom was Daniel J. Foster, Hartford, for the appellee (substitute defendant).

FLYNN, C.J., and GRUENDEL and LAVINE, Js.

FLYNN, C.J.

In this products liability action, the plaintiff, Peter Breen, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the substitute defendant, Synthes (U.S.A.)¹ On appeal, the plaintiff claims that the court improperly (1) instructed the jury on doctrines that were inapplicable to the case, (2) failed to redact portions of the plaintiff's medical records and permitted a witness to testify about those portions of the records and (3) refused to allow him to use the deposition testimony of a witness during the plaintiff's cross-examination of another defense witness. We affirm the judgment of the trial court.²

The jury reasonably could have found the following facts. On April 14, 2002, the plaintiff broke his left femur and, consequently, entered Hartford Hospital to undergo treatment for that injury. On April 15, 2002, Christopher J. Lena, an orthopedic surgeon, performed an open reduction and internal fixation on the plaintiff. During that procedure, Lena reduced the fracture and secured the area with a 281.98 95° dynamic condylar screw plate (first plate) that was manufactured by the defendant. The plaintiff received postoperative treatment from Lena. Approximately six months after the surgery, the first plate broke. The plaintiff underwent another procedure in which Lena removed the first plate. In order to correct a deformity in the plaintiff, Lena needed to implant a 110° plate instead of a similar 95° plate that was used previously, and, therefore, Lena requested that a representative of the defendant provide him with one. The defendant's representative modified another 281.98 95° dynamic condylar screw plate, which also was manufactured by the defendant, by bending it to 110° (second plate), and Lena surgically implanted the second plate. Approximately six months after the second surgery, the second plate broke. The plaintiff subsequently underwent a third procedure to remove the second plate, and a different surgeon performed a bone graft and implanted another plate.

Thereafter, the plaintiff brought the underlying products liability action against the defendant pursuant to the Connecticut Product Liability Act (act), General Statutes § 52-572m et seq., alleging that he suffered injuries as a result of the defective first and second plates. In response, the defendant filed an answer and special defenses, two of which alleged that the plaintiff's claims were barred by comment (k) to § 402A of the Restatement (Second) of Torts and by the learned intermediary doctrine. See 2 Restatement (Second) Torts § 402A, comment (k) (1965). The case was tried to the jury and resulted in a defendant's verdict. The plaintiff subsequently filed a motion to set aside the verdict. The court denied the plaintiff's motion and rendered judgment in favor of the defendant in accordance with the jury verdict. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

We first address the plaintiff's claim that the court improperly charged the jury on comment (k) to § 402A of the Restatement (Second) of Torts and on the learned intermediary doctrine — instructions requested by the defendant.³ The crux of the plaintiff's claim is that the court should not have instructed the jury with respect to comment (k) and the learned intermediary doctrine because these doctrines are inapplicable to the type of medical device involved in the present case.⁴ We disagree.

The plaintiff's claim presents a question of law, and, therefore, our review is plenary. See generally Vitanza v. Upjohn Co., 257 Conn. 365, 368, 778 A.2d 829 (2001) (applicability of learned intermediary doctrine is question of law).

We commence our review by setting forth certain legal principles relating to products liability law. "Manufacturers in Connecticut are strictly liable for defective products under § 402A of the Restatement (Second) of Torts. See Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 233, 429 A.2d 486 (1980) .... A product may be defective due to a flaw in the manufacturing process, a design defect or because of inadequate warnings or instructions....

"According to the Restatement (Second) of Torts, certain products, by their very nature, cannot be made safe. See 2 Restatement (Second), supra, § 402A, comment (k). Prescription drugs generally fall within the classification of unavoidably unsafe products." (Citations omitted; internal quotation marks omitted.) Vitanza v. Upjohn Co., supra, at 373-75, 778 A.2d 829.

"Comment (k) to § 402A of the Restatement (Second) of Torts provides that some products are incapable of being made safe for their intended and ordinary use. Nevertheless, certain unavoidably unsafe products provide such benefits to society that their use is fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous.... 2 Restatement (Second), supra, § 402A, comment (k). Comment (k) provides that a manufacturer of an unavoidably unsafe product should not ... be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk." (Emphasis in original; internal quotation marks omitted.)

Vitanza v. Upjohn Co., supra, 257 Conn. at 376-77, 778 A.2d 829.

"A manufacturer of an unavoidably unsafe product can avoid strict liability if the product is properly prepared, and accompanied by proper directions and warning.... 2 Restatement (Second), supra, § 402A, comment (k). Generally, a manufacturer's duty to warn of dangers associated with its products pertains only to known dangers and runs to the ultimate user or consumer of those products. See Tomer v. American Home Products Corp., [170 Conn. 681, 689-90, 368 A.2d 35 (1976)]; 2 Restatement (Second), supra, § 388(c). The learned intermediary doctrine, which is supported by comment (k) to § 402A of the Restatement (Second) of Torts, is an exception to this general rule." (Citations omitted; internal quotation marks omitted.) Vitanza v. Upjohn Co., supra, 257 Conn. at 375, 778 A.2d 829.

"The learned intermediary doctrine provides that adequate warnings to prescribing physicians obviate the need for manufacturers of prescription products to warn ultimate consumers directly. The doctrine is based on the principle that prescribing physicians act as learned intermediaries between a manufacturer and consumer and, therefore, stand in the best position to evaluate a patient's needs and assess [the] risks and benefits of a particular course of treatment." (Internal quotation marks omitted.) Id., at 376, 778 A.2d 829.

In his appellate brief to this court, the plaintiff makes numerous arguments to support his claim that comment (k) to § 402A of the Restatement (Second) of Torts is inapplicable under the circumstances of this case. As a threshold matter, we note that the plaintiff does acknowledge that in Vitanza, our Supreme Court adopted comment (k) to § 402A of the Restatement (Second) of Torts. The plaintiff contends, however, that the applicability of comment (k) is limited to situations in which the allegedly defective product is a prescription drug, citing Vitanza. Although Vitanza involved the prescription drug Ansaid, our Supreme Court in Vitanza did not limit expressly the applicability of comment (k) to cases involving prescription drugs. We conclude that, contrary to the plaintiff's assertion, Vitanza does not stand for the proposition that, under Connecticut law, comment (k) applies only to prescription drugs.

The plaintiff further argues that the plates manufactured by the defendant are not drugs, vaccines or experimental drugs and, therefore, do not fall within the ambit of comment (k) to § 402A of the Restatement (Second) of Torts. To support this argument, the plaintiff refers to the language of comment (k), which lists "drugs," "vaccines" and "experimental drugs" as examples of unavoidably unsafe products. However, our reading of comment (k) reveals that these examples are illustrative but do not comprise an exhaustive list of the types of products that may be characterized as unavoidably unsafe products. Rather, comment (k) provides that "[t]here are some products, which in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the ... treatment of rabies.... Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs...." (Emphasis added.) 2 Restatement (Second), supra, § 402A, comment (k).

Furthermore, in Hurley v. Heart Physicians, P.C., 278 Conn. 305, 317, 898 A.2d 777 (2006), our Supreme Court applied the learned intermediary doctrine, which is supported by comment (k), in the context of prescription implantable medical devices. Our Supreme Court's decision in Hurley therefore instructs us that, under Connecticut law, comment (k) is not limited to...