Hurley v. The Heart Physicians

• Decision Date: 14 September 2010
• Docket Number: No. 18423.,18423.
• Citation: 3 A.3d 892,298 Conn. 371
• Court: Connecticut Supreme Court
• Parties: Nicole HURLEY et al. v. The HEART PHYSICIANS, P.C., et al.

298 Conn. 371

3 A.3d 892

Nicole HURLEY et al.

v.The HEART PHYSICIANS, P.C., et al.

No. 18423.

Supreme Court of Connecticut.

Argued May 25, 2010.

Decided Sept. 14, 2010.

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Carey B. Reilly, with whom was James D. Horwitz, Bridgeport, for the appellants (named plaintiff et al.).

Lori G. Cohen, pro hac vice, with whom were James H. Rotondo and, on the brief, Michael P. Shea, Hartford, for the appellee (defendant Medtronic, Inc.).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js. ^*

VERTEFEUILLE, J.

This appeal arises out of proceedings following our remand to the trial court in Hurley v. Heart Physicians, P.C., 278 Conn. 305, 898 A.2d 777 (2006). In Hurley, we concluded that the trial court improperly had granted the defendant's motion for summary judgment as to the plaintiffs' claim under the Connecticut Product Liability Act, General Statutes § 52-572m et seq., on the basis of the learned intermediary doctrine because of the existence of a disputed issue of material fact, and we remanded the case for a determination of that factual issue. ¹ Id., at 309, 326, 898 A.2d 777. In the present appeal, ² the named plaintiff, Nicole Hurley (plaintiff), ³ appeals from the judgment of the trial court, following a jury trial, in favor of the defendant Medtronic, Inc. (defendant). ⁴ On appeal, the plaintiff claims that the trial court improperly: (1) stated the factual issue to be tried on remand following this court's decision in Hurley; (2) found that the jury verdict was unanimous; and (3) permitted the defendant to offer evidence of the negligence of the plaintiff's treating physicians on the issue of causation. We affirm the judgment of the trial court. ⁵

The underlying facts are set forth fully in our previous opinion; see id., at 309-14, 898 A.2d 777; which we reiterate to the extent the facts are relevant to the issues raised in this appeal. “[The plaintiff] was born with a congenital complete heart block condition that interfered with her heart's capacity to produce a safe heart rhythm. When she was seven days old, her physicians implanted a cardiac pacemaker manufactured by the defendant. Every few years, [the plaintiff] received a new pacemaker manufactured by the defendant, allowing her to grow and live a normal life.

“On September 14, 1998, when [the plaintiff] was fourteen years old, her pacemaker's elective replacement indicator signaled that the pacemaker battery was nearing the end of its life cycle and was wearing down. [The plaintiff's] cardiologist, Richard Landesman, asked Frank Kling, a representative of the defendant, to attend an examination of [the plaintiff] and to test the battery in her pacemaker. Kling often was called in by physicians to evaluate pacemakers, looking at the mode, rate, amplitude, pulse width and sensitivity of the device, and to make adjustments at the direction of the physicians. The intent of Kling's visit to Landesman's office, however, was for Kling to assess whether the plaintiff's pacemaker was at its end of life.

“During the visit, based on information he had gathered from Kling, Landesman concluded that [the plaintiff] needed a new pacemaker. Because, however, according to Landesman, Lucinda Hurley had refused to have the pacemaker replaced, Landesman decided to adjust downward the rate of the pacemaker in an effort to evaluate [the plaintiff's] ability to function with the pacemaker operating at a lower rate. Landesman testified that, because [the plaintiff's] ‘heartbeat had been previously demonstrated in Yale-New Haven [Hospital] to be in the [fifty to sixty paces per minute] range without the pacemaker ... [he] was actually trying to obtain some additional information which [he] hoped would eventually convince [the plaintiff's] mother that she needed to have the battery replaced.’ Landesman further explained that he hoped that by adjusting the rate, he could gather information about new symptoms that [the plaintiff] might experience in a further effort to convince her mother of the need for a replacement. Finally, Landesman was interested in obtaining information about a different type of pacemaker, one with two wires that [the plaintiff's] physicians at Yale-New Haven Hospital had suggested.

“In his deposition, Kling confirmed that his ‘interrogation’ or evaluation of [the plaintiff's] pacemaker indicated that the battery was low and that, although it ‘was still very much operating,’ he had relayed to Landesman that the pacemaker battery needed to be replaced as soon as possible. Kling testified, however, that Lucinda Hurley had been adamant about wanting her daughter's pacemaker removed altogether. In exploring the possible responses to the situation, Kling stated that his role was to present options and that, in ‘trying to understand and assess' [the plaintiff's] condition, he had presented to Landesman the option of lowering the rate. Kling explained that, ‘[b]y taking the rate from [sixty to forty paces per minute], just like you take amplitude from eight volts to four volts, you are also giving yourself more time before a device would, you know, hit that end point. So you know, in this whole realm of consideration, it's giving us more time to work this situation and maybe [Lucinda] Hurley would come around and wake up and say jeez, I've got to get this done. Leaving it at [sixty] would keep it on its present course’ but lowering the rate from sixty paces per minute would ‘buy us more time, just as it would changing the other three parameters.’ According to Kling's testimony, ‘[t]he only other option which was there from the beginning to the end was that this pacemaker needs to be replaced. And that was impressed over and over and over again.’ In light of what he understood Lucinda Hurley's position to be on the matter, Kling adjusted the pacemaker down from sixty paces per minute to forty.” Id., at 309-11, 898 A.2d 777. The plaintiff again saw Landesman on October 19, 1998, at which time the pacemaker's battery was again tested but the rate was not raised and it continued to operate at the reduced pace. On October 26, 1998, the plaintiff went into cardiac arrest while at school, and suffered permanent brain damage as a result.

The plaintiff commenced the action underlying this appeal in March, 2000, against Landesman and The Heart Physicians, P.C., his employer, and the defendant was added as a party in September, 2001. See footnote 4 of this opinion. The plaintiff's complaint asserted claims of malpractice as to Landesman and The Heart Physicians, P.C., and recklessness, product liability, and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., as to the defendant. In August, 2004, the defendant filed a motion for summary judgment, which was granted by the trial court, Rogers, J. The plaintiff filed an appeal shortly thereafter, and we transferred the appeal from the Appellate Court to this court. In Hurley, we concluded that the trial court properly had rendered summary judgment for the defendant on the plaintiff's CUTPA claim, but we reversed the judgment with respect to the plaintiff's product liability claim, finding that an issue of material fact existed as to whether Kling's words and actions were in derogation of the pacemaker's technical manual. Hurley v. Heart Physicians, P.C., supra, 278 Conn. at 308-309, 898 A.2d 777.

After our remand, a jury trial began in November, 2007, and, after approximately twenty-six days of testimony, the jury returned a verdict in favor of the defendant. The trial court rendered judgment in accordance with the verdict, and this appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the trial court improperly failed to follow this court's remand order from Hurley. Specifically, the plaintiff claims that the trial court improperly required her to prove that Kling's advice and conduct “actually contradicted,” and therefore “vitiated” and “nullified” the warnings in the manual. She contends that she should have been required to prove only that Kling's actions were “inconsistent” with the manual, which she contends is a less onerous requirement than the one applied by the court. ⁶ The defendant responds that the trial court properly interpreted this court's remand from Hurley. The defendant specifically asserts that the trial court properly stated both the scope of the issues and the burden of proof for the subsequent trial pursuant to the remand, and did not improperly limit the plaintiff's ability to present her case. ⁷ We agree with the defendant.

The following additional undisputed facts are relevant to this discussion. In Hurley, the plaintiff appealed from the trial court's summary judgment rendered in favor of the defendant on the plaintiff's failure to warn product liability claims based on the learned intermediary doctrine.

Hurley v. Heart Physicians, P.C., supra, 278 Conn. at 307-308, 898 A.2d 777. The plaintiff's claim before the trial court was based on the assertion that Kling, as the defendant's representative, had made statements to Landesman, the plaintiff's treating physician, and had engaged in conduct, namely, recommending that the pacemaker's function level be reduced and setting the pacemaker to work at that reduced level, which nullified the warnings regarding battery replacement that were contained in the pacemaker's technical manual. Id., at 307, 898 A.2d 777. The plaintiff claimed that, because Kling's statements and conduct nullified the pacemaker's adequate published warnings about the risks inherent in setting the pacemaker at a reduced level, the defendant had failed to warn her of the potential risks caused by reducing the pacemaker's function in lieu of replacing the battery. Id. In its subsequent motion for summary judgment, the defendant asserted that the learned intermediary doctrine ⁸ shielded Kling from liability....