Normandy v. Am. Med. Sys., Inc.

• Decision Date: 09 August 2021
• Docket Number: SC 20500
• Citation: 262 A.3d 698
• Parties: Debra NORMANDY et al. v. AMERICAN MEDICAL SYSTEMS, INC., et al.
• Court: Connecticut Supreme Court

262 A.3d 698

Debra NORMANDY et al.

v.AMERICAN MEDICAL SYSTEMS, INC., et al.

SC 20500

Supreme Court of Connecticut.

Argued December 10, 2020

Officially released August 9, 2021^*

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

Michael G. Rigg, Hartford, for the appellee (defendant Bristol Hospital, Inc.).

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

ROBINSON, C. J.

The principal issue in this appeal is whether a hospital that purchases, stocks, and supplies a medical device, and then bills a patient for its use during surgery, is a "product seller," as defined by

General Statutes § 52-572m (a),¹ for purposes of imposing strict liability under the Connecticut Product Liability Act (product liability act). See General Statutes § 52-572m et seq. The named plaintiff, Debra Normandy,² appeals³ from the trial court's granting of the motion for summary judgment filed by the defendant Bristol Hospital, Inc.,⁴ with respect to her complaint alleging injuries arising from the defendant's violations of, inter alia, the product liability act, the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and the common law. On appeal, the plaintiff contends that the trial court incorrectly concluded that (1) the defendant was not a product seller for purposes of imposing strict liability under the product liability act, and (2) her CUTPA and common-law claims were time barred because the statutes of limitations applicable to those claims were not tolled. We conclude that the defendant, as a hospital, is not a product seller for purposes of imposing strict liability pursuant to the product liability act under the circumstances of this case, in which the defendant provided general information

regarding various medical procedures on its website and did not significantly participate in placing the medical device at issue into the stream of commerce. We further conclude that the statutes of limitations governing the plaintiff's CUTPA and common-law claims were not tolled. Accordingly, we affirm the judgment of the trial court.

The record, viewed in the light most favorable to the plaintiff, reveals the following facts and procedural history. In 2009, Amy S. Breakstone, an obstetrician and gynecologist who is a member of the CCOG Women's Health Group (practice group), diagnosed the plaintiff with stress urinary incontinence. To treat the plaintiff's condition, Breakstone recommended the surgical implantation of the Monarc Subfascial Hammock pelvic mesh sling (Monarc mesh sling), which was manufactured by American Medical Systems, Inc. See footnote 4 of this opinion. On December 2, 2009, Breakstone performed that surgery on the plaintiff at the defendant hospital. Breakstone is not an employee of the defendant, but she has privileges to practice there.

The defendant maintains a website on which it provides information about its affiliated physicians, including Breakstone, as well as various procedures that are available to patients. The practice group of which Breakstone is a member maintains its own webpage that provides information about incontinence therapies, including specific treatment devices. The practice group's webpage provides a hyperlink titled "Monarc," which is the brand of pelvic sling implanted in the plaintiff. The Monarc mesh sling implanted in the plaintiff was stocked by the defendant at the request of some its physicians; the defendant paid American Medical Systems, Inc., $900 for the Monarc mesh sling and then billed the plaintiff's health insurance carrier $4230 for it.

Although physicians have utilized pelvic mesh products containing a "monofilament polypropylene mesh,"

like the Monarc mesh sling, to treat stress incontinence surgically, "there is scientific evidence that suggests that this material is biologically incompatible with human tissue and should not be used in the pelvic region." On January 24, 2014, the plaintiff was diagnosed with a "mesh exposure" that caused her discomfort and ultimately required surgical removal of the Monarc mesh sling.

The plaintiff brought this action on March 9, 2015, via a two count complaint, alleging, inter alia, violations of the product liability act and CUTPA. Subsequently, the plaintiff filed a request for leave to amend the complaint, seeking to add five new counts against the defendant, alleging common-law claims for negligence, breach of express warranty, breach of implied warranty, recklessness, and civil conspiracy in the third through seventh counts, respectively.⁵ The defendant objected to the plaintiff's request to amend the complaint and moved for summary judgment, arguing, inter alia, that the defendant is not a product seller under the product liability act and that the plaintiff's CUTPA and common-law claims were time barred.

The trial court granted the plaintiff's request to amend the complaint, treating it as the operative complaint in considering the defendant's motion for summary judgment. In granting the defendant's motion for summary judgment, the trial court concluded that there was no genuine issue of material fact that the defendant was not a product seller as a matter of law, deeming it "clear from the evidence submitted that the essence of the relationship between [the plaintiff] and the defendant ... was the provision of medical services, by way of surgery to implant the [Monarc mesh sling]." The trial court further concluded that "[t]he defendant did not

place the [Monarc mesh sling] into the stream of commerce but, rather, was a user or consumer of [the sling], as it is of all equipment and products used to provide medical services and [to] treat patients." (Footnote omitted.) In so concluding, the court determined that the majority of Connecticut trial courts, sister state courts, and leading treatises agree that hospitals are not product sellers for purposes of strict product liability. The court also granted the defendant's motion for summary judgment as to the remaining CUTPA and common-law claims, concluding that they were time barred. In doing so, the court concluded that neither the continuing course of conduct nor the fraudulent concealment doctrine tolled the applicable statutes of limitations. Accordingly, the court rendered judgment for the defendant on all counts of the amended complaint. The court denied the plaintiff's subsequent motion for reconsideration. This appeal followed.

On appeal, the plaintiff contends, inter alia, that the trial court incorrectly concluded that (1) the defendant was not a product seller as a matter of law, and (2) the continuing course of conduct and fraudulent concealment doctrines did not toll the applicable statutes of limitations. We address each claim in turn.

Before turning to the plaintiff's specific claims, we note the well settled standard of review governing summary judgment motions. " 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. ... 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 ... and the party opposing such a motion must provide an evidentiary

foundation to demonstrate the existence of a genuine issue of material fact. ... [T]he scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary." (Internal quotation marks omitted.) Rutter v. Janis , 334 Conn. 722, 729, 224 A.3d 525 (2020).

I

We begin with the plaintiff's claim that the trial court incorrectly concluded that there was no genuine issue of material fact as to whether the defendant is a product seller for purposes of the product liability act. The plaintiff argues that the defendant "was engaged in the business of selling mesh slings and that the primary, if not sole, purpose of its relationship with [the plaintiff] was providing the sling to be implanted by ... Breakstone." The plaintiff asserts that evidence of the defendant's regularly stocking pelvic mesh products, marketing the Monarc mesh sling on its website, and selling that device at a markup created a genuine issue of material fact as to whether the defendant was engaged in the business of selling the Monarc mesh sling. In response, the defendant argues that the trial court correctly concluded that it is not a product seller under the product liability act because it was "not engaged in the business" of selling the Monarc mesh sling and because the essence of the relationship between the defendant and the plaintiff "was that of medical service provider and patient." We agree with the defendant and conclude that there is no genuine issue of material fact as to whether it was a product seller of the Monarc mesh sling.

In 1965, Connecticut adopted, as a matter of state common law, § 402A of the Restatement (Second) of Torts. Garthwait v. Burgio , 153 Conn. 284, 289, 216 A.2d 189 (1965) ; see 2 Restatement (Second), Torts § 402A, p. 347 (1965). "Section 402A recognized an action for strict product liability in tort without the

requirement of privity between the seller and the consumer or proof of manufacturer fault." Izzarelli v. R.J. Reynolds Tobacco Co. , 321 Conn. 172, 184, 136 A.3d 1232 (2016). "In 1979, our legislature adopted our product liability act. ... That liability act required all common-law theories of product liability to be brought as a statutory cause of action." (Citation omitted.) Id., at 187, 136 A.3d 1232. Thus, "all claims or actions brought for personal injury ... caused by the ... marketing ... of any product" are brought under the product liability act. General Statutes § 52-572m (b). The product...