Sherwood v. Stamford Health System, Inc.

• Decision Date: 16 January 2018
• Docket Number: X06UWYCV146025333
• Parties: Robin Sherwood et al. v. Stamford Health System, Inc. dba Stamford Hospital
• Court: Connecticut Superior Court

Robin Sherwood et al. v. Stamford Health System, Inc. dba Stamford Hospital

No. X06UWYCV146025333

Superior Court of Connecticut, Judicial District of Waterbury, Waterbury, Complex Litigation Docket

January 16, 2018

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Zemetis, Terence A., J.

ORDER RE STAMFORD’S MOTION FOR SUMMARY JUDGMENT EN ^[1] 176, 201, 208, 215, & 302 AND PLAINTIFFS’ OBJECTION EN 190, 191, 193, 203, 220, 300, &amp 301

TERENCE A. ZEMETIS, J.

The defendant Stamford Health System, Inc., dba Stamford Hospital, Stamford, moves for summary judgment on all Counts One through Eleven inclusive, in the plaintiff’s September 23, 2016 Amended Complaint.^[2] The plaintiffs object.

Oral argument was held on January 10, 2018, long delayed by the parties’ requests for further discovery prior to argument. Jury selection, initially scheduled to begin in January 2017 was delayed at counsels’ request until January 9, 2018 and delayed again until January 17, 2018 to permit the oral argument and the court to issue an order.

The operative pleadings are: Amended Complaint of September 23 2016, EN 167, Answer and Special Defenses of March 29, 2017, EN 227, and Reply to Special Defenses of January 8, 2018, EN 298. The Amended Complaint alleges harm to plaintiffs in eleven counts. The Answer denies all allegations. The two Special Defenses assert the defendant is not a product seller as defined by the Connecticut Products Liability Act, addressing the First Count of the Amended Complaint, and that all counts are barred by the statute of limitations. The Reply denies the material allegations of both Special Defenses and asserts a tolling of the statutes of limitation by the doctrines of continuing course of conduct and fraudulent concealment.

BASIS FOR THE MOTION

Plaintiffs allege: on April 12, 2006 Dr. Brian Hines, M.D., employee of Stamford, implanted pelvic mesh products into Ms. Sherwood harming her. Ms. Sherwood seeks compensation for resulting personal injuries suffered. Greg Hoelscher, spouse of Ms. Sherwood, seeks compensation for loss of consortium.

Plaintiffs seek compensation from Stamford for harm caused by alleged violation of the Connecticut Products Liability Act (CPLA), negligence, breach of express warranty, breach of implied warranty, recklessness, civil conspiracy, lack of informed consent, innocent misrepresentation, negligent misrepresentation, intentional misrepresentation, and/or violation of the Connecticut Unfair Trade Practices Act (CUTPA).

Stamford moves for summary judgment because the statutes of limitation bars each claim. And Stamford asserts the CPLA is inapplicable to Stamford as it is not a statutorily defined product seller. Similarly Stamford asserts Sherwood’s claims for breach of express or implied warranties are inapplicable as Stamford is not a product seller. Stamford moves for summary judgment, if the court finds Stamford is a " product seller, " on Second through Eleventh Counts because the CPLA is the exclusive remedy for damages allegedly arising out of harm caused by a defective product. Finally, Stamford moves for summary judgment that all counts are barred by the operative statutes of limitation.

The plaintiffs object to Stamford’s motion for summary judgment. First, plaintiffs assert the CPLA applies because Stamford is a " product seller" under the CPLA and the lawsuit timely filed, but, if the CLPA is inapplicable, then the non-CPLA claims, Second through Eleventh Counts, are timely filed because the operative statutes of limitation are tolled by Ms. Sherwood’s delayed discovery of actionable harm and continuing course of conduct and/or fraudulent concealment doctrines.

FACTS

1. On April 12, 2006 Dr. Brian Hines, M.D., Director of Division of Urogynecology and Pelvic Reconstruction Surgery of Stamford Hospital, acting within the scope of his employment surgically implanted pelvic mesh products in Ms. Sherwood.

2. On August 14, 2014 service of the writ of summons and complaint were served upon Stamford.

3. Ms. Sherwood’s deposition testimony, Ex. 1, in EN 176, established:

a. in 1998, when she was pregnant with her fourth child, Logan, she started experiencing symptoms from a prolapsed uterus. Sherwood deposition at pp. 56-67.

b. Those symptoms continued, intermittently, and Ms. Sherwood used a pessary, as directed by her gynecologist, to treat the symptoms from her prolapse. Id. at 58.

c. By 2005-06, the pessary was not " satisfactory" to Ms. Sherwood because she was having problems with the pessary. Id. at 69.

d. Ms. Sherwood consulted with Dr. Komarynsky, her gynecologist, and Dr. Grey, another gynecologist about treatment options. Id. at 71-72.

e. At approximately the end of 2005, Dr. Komarynsky recommended that Ms. Sherwood see Dr. Hines for treatment of her prolapse. Id. at p. 79.

f. Ms. Sherwood testified that at her January 2006 visit, Dr. Hines " presented me that the only option for me was mesh. And that it had wonderful results in people." Id. at 81.

g. At the time of her April 12, 2006 surgery, Ms. Sherwood suffered from pelvic organ prolapse, stress urinary incontinence and mild urinary urgency. Her cervix extended 3cm-4cm beyond the entrance to her vagina, among other issues described in her medical record. EN 176, Exhibit 2.

h. On April 12, 2006, Dr. Hines implanted an Ethicon Prolift into Ms. Sherwood at Stamford Hospital to treat her prolapse. Sherwood Deposition at Pp. 69, 114.

4. Ms. Sherwood went back to see Dr. Hines on April 12, 2007 complaining of dyspareunia (painful sex). EN 176, Exhibit 2 (selective portions of Ms. Sherwood’s medical records).

5. Ms. Sherwood testified she’d experienced discomfort during sexual intercourse about six months after the April 12, 2006 surgery. She reported those symptoms to her gynecologist, Dr. Komarynsky, and returned to Dr. Hines in the spring of 2007 reporting several problems with the mesh.

6. Dr. Hines performed the first surgical revision to remove sutures holding the mesh product in place during the fall of 2007.

7. Ms. Sherwood knew of the mesh causing changes to her pelvic architecture in 2007, she testified:

a. Q ... You were seeing Dr. Komarynsky in 2007 and you had additional symptoms related to the stitches since you also observed them, and you also told her that the mesh was changing in your body and that this was a problem?

b. A She told me on exam she could tell from one time to the next that things were changing inside. I was going- pulled- my architecture was being pulled more to the right. And I also had- I’m sure that’s in everybody’s records. I had a place in the anterior section of my vagina that was not smooth anymore. It had the texture of like a screen door, even though it was, like, flesh covered. It was very rough and it didn’t seem like- it didn’t seem like me. Id., 125-29.

8. In 2007 Ms. Sherwood was fearful and concerned about the severity and gravity of the changes caused by the mesh products implanted in her:

Q Did you discuss treatment options with him? In other words something other than just taking them out? And " him" is Dr. Hines.

A I wasn’t asking him the questions. I was asking him what do I do. You know, I was in the- pretty like what’s happening? Am I going to die? What’s happening to my organs?

Q You were really scared?

A I was really scared. I put my will in order.

Id. at 129-30.

9. Shortly after the August 2007 surgery, Ms. Sherwood elected to treat with physicians other than Dr. Hines because " the mesh was causing me [her] problems." Id. at 132. In response to a question asking why Ms. Sherwood went " back to see him [Dr. Hines], " She answered: " [t]o talk to him and tell him that I was pretty sure, not just as the person who received the mesh, that the mesh was causing me the problems. And that I needed to do something about it. And he emphasized that it is permanent. And I said, well, then I need to- I need to see someone else. So he gave me some names of people to go see. And he said I’m sorry that you’re having problems." Id. at 132.

10. A December 2007 office visit was the last time Dr. Hines treated Ms. Sherwood. " Q And that was the last time you saw Dr. Hines; is that right? A Yes. Q That was in December of 2007, approximately? A That sounds right." Id. at 134.

11. Ms. Sherwood terminated the patient-physician relationship with Dr. Hines in December of 2007. Dr. Hines referred Ms. Sherwood to Dr. Richard Bercik, urogynecologist and professor at the Yale School of Medicine, for further care. Ms. Sherwood did follow up with Dr. Bercik, as well as several other urogynocologists and other medical specialists about the pelvic mesh implant.

12. In late 2007 or early 2008, Ms. Sherwood discussed her condition with her gynecologist, Dr. Komarynsky. Ms. Sherwood summarized Dr. Komarynsky’s medical advice: " I have concerns that this is not going well for you. You have to find somebody who knows something about it. And somebody who has already done this, has already taken it [the Ethicon Prolift] out successfully." Id. at 135.

13. Ms. Sherwood consulted with Dr. Staskin in January 2008 about how to deal with the problems she had with the Ethicon Prolift. Id. at 136. She was " [s]till in terrible [pelvic] pain." Id. She " still had tension, pulling, just feeling that, like, everything was twisting inside of me. I had a 24-hour awareness that- I think I knew just where the mesh was in terms of I can trace the pain." Id. at 137.

14. In 2008, Ms. Sherwood also consulted with Dr. Porges. He was the head of urogynecology at NYU Hospital. Id. at pp. 141-42. Dr. Porges told Ms. Sherwood that her mesh " need[ed] to come out." Id. at p. 143, 145.

15. At approximately the same time, Ms. Sherwood sought an opinion...