Moss v. Wyeth Inc.

• Decision Date: 24 May 2012
• Docket Number: No. 3:04cv1511 (SRU).,3:04cv1511 (SRU).
• Citation: Moss v. Wyeth Inc., 872 F.Supp.2d 162 (D. Conn. 2012)
• Parties: Kenneth MOSS, as executor of the estate of Lynn Gardner Moss, and Kenneth Moss, individually v. WYETH INC., et al.
• Court: U.S. District Court — District of Connecticut

872 F.Supp.2d 162

Kenneth MOSS, as executor of the estate of Lynn Gardner Moss, and Kenneth Moss, individually

v.WYETH INC., et al.

No. 3:04cv1511 (SRU).

United States District Court, D. Connecticut.

May 24, 2012.

Christopher W. Goode, Bubalo Rotman, PLC, Lexington, KY, Frederic S. Ury, Manish Indravadan Shah, Neal Lewis Moskow, Ury & Moskow, Fairfield, CT, Gregory J. Bubalo, Julie Ferraro, Bubalo Rotman, PLC, Louisville, KY, Paula S. Bliss, Steven B. Rotman, Bubalo Rotman, PLC, Louisville, KY, for Kenneth Moss.

Aaron H. Levine, Adrienne D. Gonzalez, Andrew K. Solow, Bert L. Slonim, Kaye Scholer, LLP, Adam Brent Siegel, Freshfields Bruckhaus Deringer U.S. LLP, Tiffany Lee Christian, Eric M. Falkenberry, DLA Piper U.S. LLP, Catherine B. Stevens, Skadden, Arps, Slate, Meagher & Flom, New York, NY, Bonnie J. Beavan, Goodell, Devries, Leeach & Dann, LLP, Baltimore, MD, Daniel Everett Holloway, Boies, Schiller & Flexner LLP, Armonk, NY, Darolyn Hamada, Shook, Hardy & Bacon, L.L.P., Irvine, CA, David E. Dukes, Eric A. Paine, Nelson, Mullins, Riley & Scarborough, Columbia, SC, Eugene A. Arbaugh, Jr., DLA Piper LLP–MD, Tracey Gann Turner, DLA Piper Rudnick Gray Cary U.S. LLP, Baltimore, MD, Genevieve Marie Spires, Porzio, Bromberg & Newman, PC, Morristown, NJ, J. Mark Jones, Nelson, Mullins, Riley & Scarborough, Columbia, SC, James O. Craven, James I. Glasser, Jeffrey R. Babbin, Joseph W. Martini, Wiggin & Dana, New Haven, CT, Jerald Russell Hess, DLA Piper LLP, Michele A. Roberts, Skadden, Arps, Slate, Meagher & Flom, Washington, DC, Kelly A. Evans, Snell & Wilmer LLP, Las Vegas, NV, Michael R. Klatt, Gordon & Rees, LLP, Austin, TX, Pamela Joan Yates, Kaye, Scholer, LLP, Los Angeles, CA, Stephen Christopher Matthews, Porzio, Bromberg & Newman, PC, Morristown, NJ, for Defendants.

MEMORANDUM OF DECISION

STEFAN R. UNDERHILL, District Judge.

DefendantsWyeth, Inc. and Wyeth Pharmaceuticals, Inc.(collectively “Wyeth”) have argued that Connecticut “does not recognize strict liability claims for design defects in prescription drugs” under the Connecticut Product Liability Act (“CPLA”).See Wyeth's Bench Br.Regarding Design Defect Claims Under Connecticut Law(doc. # 295), at 1.That assertion is based on comment k of section 402A of the Restatement (Second) of Torts, which the Connecticut Supreme Court has adopted in principle, but has not yet fully defined in scope and effect.On May 8, 2012, I issued a brief oral ruling on the effect of comment k on strict liability for design defects under Connecticut law.¹Because the viability of a design defect claim directly affects the jury instructions in this case and likely will be the subject of appeal, I am issuing this memorandum of decision to more precisely explain my conclusionthat Connecticut recognizes a claim for design defect in prescription drugs, but would also recognize an affirmative defense to such a claim.

I.Background

This is a products liability action, before this court on diversity jurisdiction, involving combination hormone replacement therapy (“cHRT”) products that allegedly caused breast cancer.The plaintiff is Kenneth Moss, individually and as executor for the estate of his late wife, Lynn Gardner Moss.Lynn Gardner Moss(“Mrs. Moss”) passed away in December 2006 after a protracted battle with breast cancer.Wyeth is a pharmaceutical company that manufactures the hormone therapy drugs Premarin, an estrogren, and Prempro, a combination of Premarin and a progestin, which are both prescribed to combat the symptoms of menopause.The plaintiff claims that Premarin and Prempro were unreasonably dangerous, that Wyeth promoted the drugs without adequate warnings and without adequate clinical trials examining their safety, and that Mrs. Moss's use of the drugs was a substantial contributing factor in her development of breast cancer.

The Amended Complaint alleges eleven causes of action: failure to warn (Count I); strict liability for a defective product (Count II); negligence (Count III); misrepresentation as to safety and efficacy (Count IV); punitive damages for reckless failure to warn the public (Count V); breach of implied warranty (Count VI); breach of express warranty (Count VII); violation of the Connecticut Unfair Trade Practices Act (“CUTPA”)(Count VIII); wrongful death (Count IX); loss of consortium (Count X); and fraudulent concealment, so as to toll the statute of limitations (Count XI).SeeAm. Compl. ¶¶ 103–69.

I granted summary judgment in favor of Wyeth on the breach of express warranty claim (Count VII) and the CUTPA claim (Count VIII).SeeMot. Hr'g Tr.(Mar. 1, 2012), at 95–96(doc. # 227).I also granted partial summary judgment on plaintiff's alternative design theory of liability due to a lack of admissible expert testimony.²Seeid. at 94–95.I denied summary judgment on the remaining counts, but ruled that each of the separately pleaded claims would be treated as a single cause of action under the CPLA.Seeid. at 87.

Relevant to present purposes, the plaintiff seeks to put before the jury negligence-based theories of failure to warn and test, as well as the following theories of strict liability: (1) defective design; and (2) defective warnings.

II.Discussion

The CPLA, enacted in 1979, was intended to merge the various common law theories of products liability into a single cause of action in order to simplify pleadings and procedures.SeeLynn v. Haybuster Mfg., Inc.,226 Conn. 282, 292, 627 A.2d 1288(1993)(summarizing the legislative history of Conn. Gen.Stat. § 52–572m et seq.).However, “the CPLA certainly retains the plaintiff's right to allege the traditional theories of recovery along with the statutory basis for recovery under one unified count denominated as a ‘product liability claim.’ ”Lamontagne v. E.I. DuPont de Nemours & Co., Inc.,834 F.Supp. 576, 587(D.Conn.1993)(internal quotation omitted).

Connecticut law provides for civil damages actions grounded in strict liability for defective products.Conn. Gen.Stat. § 52–572n.In general, Connecticut courts have adopted the strict liability test established in section 402A of the Restatement (Second) of Torts.Garthwait v. Burgio,153 Conn. 284, 289–90, 216 A.2d 189(1965).Section 402A imposes liability only when the product is “unreasonably dangerous” to the ordinary consumer who purchases it.Potter v. Chicago Pneumatic Tool Co.,241 Conn. 199, 211, 694 A.2d 1319(1997)(quoting§ 402A, cmt.(i)).

Within the strict liability rubric, Connecticut recognizes a trifecta of product defects: (1) manufacturing defects; (2) design defects; and (3) warnings defects.SeeVitanza v. Upjohn Co.,257 Conn. 365, 373, 778 A.2d 829(2001)(“A product may be defective due to a flaw in the manufacturing process, a design defect or because of inadequate warnings or instructions.”).Generally speaking, a manufacturing defect is a mistake in the assembly process, which results in a product that differs from the manufacturer's intended result.SeeMiller v. United Technologies Corp.,233 Conn. 732, 779, 660 A.2d 810(1995).A design defect, in contrast, exists when the product is otherwise properly manufactured, but is nonetheless unreasonably dangerous because its attributes can cause unexpected injury.A product is defectively designed if: (1) it failed to perform as safely as an ordinary consumer would expect when used in a reasonably foreseeable manner (the “ordinary consumer expectations” test); or (2) in the case of complex products, the risk of danger inherent in the design of the product outweighs its utility (the “modified consumer expectations” test).SeePotter,241 Conn. at 211–12, 219–20, 694 A.2d 1319.Lastly, a warning defect exists when a product is unreasonably dangerous because it lacks adequate warnings or instructions concerning the product's dangerous propensities.SeeSharp v. Wyatt, Inc.,31 Conn.App. 824, 833, 627 A.2d 1347(1993), aff'd,230 Conn. 12, 16, 644 A.2d 871(1994).In such cases, the failure to warn itself makes the product defective.Id.

A.Comment k

Although section 402A imposes strict liability on a seller who markets a product “in a defective condition unreasonably dangerous” to the consumer, comment k carves out an exception to the strict liability rule in the case of products characterized as “unavoidably unsafe.”Comment k provides:

Unavoidably unsafe products.There 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 Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected.Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are 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.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 as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experienceas there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk.The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to 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...