Ferrari v. Johnson & Johnson, Inc.

Raymond C. FERRARI v. JOHNSON & JOHNSON, INC., et al.

No. HHDCV166067308S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

November 28, 2017

UNPUBLISHED OPINION

OPINION

CESAR A. NOBLE, J.

Before the court is the motion for summary judgment of the defendants, Johnson & Johnson, Inc., and Synthes, Inc. seeking judgment in their favor against the plaintiff Raymond Ferrari, as to all counts of his complaint. For the reasons set forth below, the defendants’ motion for summary judgment is granted.

I FACTS AND PROCEDURAL HISTORY

On April 7, 2016, the plaintiff filed a four-count complaint against the aforementioned defendants, ^[1] and alleged the following facts. The plaintiff underwent spinal surgery including a posterolateral fusion at Hartford Hospital on August 17, 2012, in which the plaintiff’s surgeon, Dr. Paul Schwartz, implanted various components of the defendants’ product, the Synthes Matrix spinal system (product). This system included stabilizing titanium rods that were used in the fusion of the plaintiff’s spine from T7-8 through L1-2. The plaintiff’s surgery required a junction of the new titanium hardware to a previously placed steel construct at L2- through S1. On April 4, 2013, the plaintiff underwent a second surgery, which revealed a fracture of the left titanium rod at the junction of the new instrumentation with the old steel construct.

The complaint contains four counts. Counts one and two allege product defect claims pursuant to the Connecticut Product Liability Act, General Statutes § 52-572m et seq. ^[2] relating to the failure and fracture of the defendants’ product. The product defects identified in the first two counts are a failure to warn regarding the use of the product in patients of the plaintiff’s size, history of prior spinal fusions, instrumentations and the junction of titanium hardware to stainless steel hardware. Complaint, ¶ 14a and b. The plaintiff broadly also alleges that the product was " designed, fabricated, manufactured, tested, distributed, marketed and or/sold without adequate or proper precautions to prevent the failure and fracture of components once installed in patients." Complaint, ¶ 14c. Counts three and four allege breaches of express and implied warranties.

The deadline for the plaintiff to disclose any expert witnesses was January 15, 2017, pursuant to a mutually agreed-upon scheduling order adopted by the court, Robaina, J. None have been disclosed.^[3] Trial is scheduled to begin on February 8, 2018.

The defendants move for summary judgment on the grounds that: (1) the plaintiff has failed to produce an expert witness; (2) the plaintiff has failed to establish that the product was defective; (3) Comment K of the restatement bars the plaintiff’s claims; (4) the learned intermediary doctrine bars the plaintiff’s claims; and (5) the plaintiff has failed to establish causation. The plaintiff objects to the motion for summary judgment on the basis that a product defect can be inferred from the evidence without expert testimony and that genuine issues of material fact exist as to whether there were adequate warnings.

II STANDARD OF REVIEW

" [S]ummary 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645 (2016). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20 (2013).

" Once the moving party has met its burden ... the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell -Ferri, 317 Conn. 223, 228 (2015).

III DISCUSSION

" All [product liability] claims, whether alleging a design defect, manufacturing defect or failure to warn defect, are governed by the same elements that this court has applied since it adopted § 402A [of the Restatement (Second) of Torts]: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of sale; and (5) the product was expected to and did reach the consumer without substantial change in condition." (Internal quotation marks omitted.) Bifolck v. Philip Morris Inc., 324 Conn. 362, 434, 152 A.3d 1183 (2016); see also Izzarelli v. R .J. Reynolds Tobacco, Co., 321 Conn. 172, 184-85, 136 A.3d 1232 (2016).

The defendants argue that the plaintiff’s failure to disclose an expert is fatal to his claims. Specifically, the defendants argue that the plaintiff’s claim must be analyzed under the risk-utility test because of its complex design and, therefore, expert testimony is needed. Further, the defendants argue that the instructions and warnings included in the product’s packaging were accurate and sufficient and, therefore, the plaintiff’s failure to warn claim is barred by the learned intermediary doctrine. The plaintiff argues that he does not need expert testimony because the jury can infer that a design defect existed from circumstantial evidence, such as the fact that the rod broke. Additionally, the plaintiff contends that the learned intermediary doctrine does not apply because there is a question of fact as to whether the instructions and warnings were diluted by the input of the defendant’s product consultant.

A Design Defect

Our Supreme Court first established duel tests for proving that a design defect is unreasonably dangerous in Potter v Chicago Pneumatic Tool Co., 241 Conn. 199, 220-22, 694 A.3d 1319 (1997). In Potter, the court declined the defendants’ invitation " to abandon the consumer expectation standard and adopt the requirement that the plaintiff must prove the existence of a reasonable alternative design in order to prevail on a design defect claim." Id., 215. The court rejected such a requirement, recognizing that there are circumstances where it would be appropriate for a jury to infer a defect from circumstantial evidence without expert testimony. Id., 217-18. The court also recognized, however, " that there may be instances involving complex product designs in which an ordinary consumer may not be able to form expectations of safety." Id., 219. Therefore, a modified consumer expectation test was adopted that incorporated risk-utility factors, resulting in two tests: the ordinary consumer expectation test and the modified consumer expectation test. Id., 220-22. The court’s decision in Potter left litigants and courts alike uncertain as to when each test was appropriate, with some courts finding that the modified test is reserved for complex products and other court concluding the opposite. See Izzarelli v. R.J. Reynolds Tobacco, Co., supra, 321 Conn. 191-92. This uncertainty was clarified in Izzarelli, where the Supreme Court revisited its decision in Potter, to more clearly set forth when each test should be used. Izzarelli v. R.J. Reynolds Tobacco, Co., supra, 194. Although recognizing that Potter could be read to support the interpretation that the modified consumer expectation test is " reserved exclusively for complex product designs for which an ordinary consumer could not form safety expectations"; Izzarelli v. R.J. Reynolds Tobacco, Co., supra; the court declined to adopt a simple/complex divide. Id., 195.

" We are not persuaded that Potter intended to draw a simple/complex divide. The court in Potter pointed to the problem in proving consumers’ safety expectations for complex products because that concern was implicated in the case before the court and was the most obvious misfit for the ordinary consumer expectation test. Potter involved pneumatic hand tools alleged to be defective because they exposed users to excessive vibration, which in turn caused permanent vascular and neurological damage to the users’ hands ... Notably, although concerns about proof for complex products was foremost in the court’s mind when adopting the modified test, the court stated no limitations on the circumstances in which that test could be applied. Instead, all of the limitations discussed were in reference to the application of the ordinary consumer expectation test." (Citations omitted; footnote omitted.) Izzarelli v. R.J. Reynolds Tobacco, Co., supra, 195-96.

The court therefore held that " the ordinary consumer expectation test is reserved for those limited cases in which a product fails to meet a consumer’s legitimate, commonly accepted minimum safety expectations. Expert testimony on product design is not needed to prove the product’s defect nor is the utility of the product’s design an excuse for the undisclosed defect ... All other...