Opinion
No. X06-CV-04-4000639 S
December 7, 2004
MEMORANDUM OF DECISION
The issue before the court is whether the product liability law of New Jersey or that of Connecticut governs a product liability claim brought by a Connecticut resident who was injured in Connecticut by a product manufactured by a pharmaceutical company located in New Jersey. I conclude that under the circumstances of this case the Connecticut Product Liability Act, General Statutes § 52-572m et seq., governs such a claim.
The plaintiff Jeanne Campofiore, who is a resident of Stratford, Connecticut, alleges that on June 10, 1999 she was seriously injured after ingesting Robitussin CF, an over-the-counter cough and cold medicine. Robitussin CF was manufactured and distributed by WhiteHall-Robins, a division of American Home Products Corporation, which is now known as Wyeth. Wyeth is a Delaware corporation with its principal place of business in Madison, New Jersey. Campofiore alleges that, at the time she ingested Robitussin GE, it contained phenylpropanolamine (PPA) which she claims is known to cause inter cerebral hemorrhages and which caused her to have such a hemorrhage. In her complaint, the plaintiff alleges violations of the Connecticut Product Liability Act, General Statutes § 52-572m et seq., as well as violations of the New Jersey Product Liability Act, N.J.S.A. 2A:C-1 et seq., and the New Jersey Consumer Fraud Act, N.J.S.A. 5b:8-1 et seq. The defendant has moved to strike counts two and three of the plaintiff's complaint which assert claims under the New Jersey Product Liability Act and count four which asserts a claim under the New Jersey Consumer Fraud Act on the grounds that, under controlling choice of law principles, the substantive law of Connecticut, not New Jersey, applies to the plaintiff's claims in this case.
Raymond Campofiore, the husband of Jeanne Campofiore, has also brought a loss of consortium claim. Since his claim is derivative of the claims of his wife, I will refer to Jeanne Campofiore as the plaintiff.
The law governing the court's consideration of a motion to strike is well established. "The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff." (Citations and internal quotation marks omitted.) Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 214 (1992). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Suffield Devel. Assoc. L.P. v. National Loan Inv., 64 Conn.App. 192, 197 (2001). "The role of the trial court is to examine the complaint construed in favor of the plaintiffs, to determine whether the pleading party has stated a legally sufficient cause of action." Dodd v. Middlesex Mutual Assurance Company, 242 Conn. 375, 378 (1997).
A choice of law issue arises in this case due to the exclusivity provision of the Connecticut Product Liability Act, General Statutes § 52-572m et seq. That provision provides: "A product liability claim . . . may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product." General Statutes § 52-572n(a). "The exclusivity provision makes the product liability act the exclusive means by which a party may secure a remedy for an injury caused by a defective product." Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 126 (2003). In this case, the plaintiff seeks to assert, in addition to a product liability claim, a claim for damages under the New Jersey Consumer Fraud Act, N.J.S.A. 5b:8-1 et seq., due to the defendant's allegedly false and deceptive misrepresentations concerning the safety of Robitussin CF. Both parties agree that such a claim would be barred by the exclusivity provision of the Connecticut Product Liability Act should the substantive law of Connecticut apply to this action.
Compare Gerrity v. R.J. Reynolds Tobacco Co., CT Page 18526 263 Conn. 120, 126 (2003) in which our Supreme Court held that the exclusivity provision of the product liability statute does not bar a claim under the Connecticut Unfair Trade Practices Act for damages resulting from having to pay a higher price for cigarettes due to the tobacco company's misrepresentations because such a claim seeks to "redress merely a financial injury suffered by the decedent, of a kind that has never been regarded as part of the traditional tort remedy for harm caused by a defective product." Id., 129-30. In contrast, the plaintiff here asserts that the defendant misrepresented the safety of the product and seeks to recover under the New Jersey Consumer Fraud Act the cost of her medical care resulting from injuries suffered from using the allegedly defective product. Such a claim is "nothing more than a product liability act claim dressed in the robes of" a consumer fraud claim and is barred by the exclusivity provision of the Connecticut Product Liability Act. Id., 129.
Connecticut has traditionally adhered to the doctrine of lex loci delicti, that is that the substantive rights and obligations arising out of a tort controversy are determined by the law of the place of injury. O'Connor v. O'Connor, 201 Conn. 632, 637 (1986). In O'Connor, however, our Supreme Court decided it was time to "abandon categorical allegiance to the doctrine of lex loci delicti in tort actions." Id., 648. The court determined that the guidelines of the Restatement (Second) of Conflict of Laws should be used as the governing principles for "those cases in which application of the doctrine of lex loci would produce an arbitrary, irrational result." Id., 650. The Supreme Court has subsequently utilized the criteria set forth in the Restatement in resolving conflict of laws issues involving uninsured motorist coverage, Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359 (1994), and the existence of a duty in the absence of a physician-patient relationship in a medical malpractice action, Dugan v. Mobile Medical Testing Ser., 265 Conn. 791 (2003). Our Supreme Court has also expressly abandoned in contract cases the lex loci principle in favor of the "most significant relationship" test of the Restatement (Second) of the Conflict of Laws. Reichhold Chemicals, Inc. v. Hartford Acc. Indem., 243 Conn. 401, 413 (1997). In light of this clear trend toward a full embrace of the conflict of laws principles established by the Restatement, it is appropriate to utilize those principles in deciding the choice of law issue presented here.
Section 145 of the Restatement which sets forth the general principles governing conflict of laws regarding tort issues provides in subsection (1) that "The rights and liabilities of the parties with respect to an issue are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6." In subsection (2), § 145 further provides that "Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue." Section 6 of the Restatement provides "(1) A court, subject to Constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protections of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied."
The defendant contends that Connecticut has the most significant relationship to the occurrence and parties. It maintains that, since the plaintiff, a Connecticut resident, was injured in Connecticut by a product sold in Connecticut, Connecticut has a strong policy interest in maintaining the exclusivity of its product liability statute. The plaintiff argues that the parties' contacts to Connecticut and New Jersey do not weigh heavily toward either state. She contends that New Jersey's interest in deterring the manufacture of unsafe products by businesses located within the state and Connecticut's interest in insuring that its residents are fully compensated for their injuries compel the use of New Jersey product liability law. I agree with the plaintiff that. Connecticut's relationship to the mishap and the parties is more significant than that of New Jersey. I begin my analysis with the contacts outlined in Section 145(2) of the Restatement Second as they relate to this case. Connecticut is the plaintiff's residence and the place where she was injured. New Jersey is the place of business of the defendant. The place where the conduct causing the injury occurred is more problematic. The plaintiff's complaint is silent as to where the cough medicine ingested by the plaintiff was manufactured. Although the complaint also asserts violations of the New Jersey Product Liability Act based on a failure to warn and the New Jersey Consumer Fraud Act based on misrepresentations as to the product's safety, the complaint is similarly silent as to the place where the product's labeling was applied. Finally, the relationship between the parties was a limited one. According to the complaint, it consisted of a single purchase of Robitussin CF by the plaintiff. To the extent one existed, the relationship was centered in Connecticut as that is where the medicine was purchased.
At oral argument, plaintiff's counsel indicated that he did not know where the medicine was manufactured.
In light of these contacts, Connecticut's relationship to this litigation is centered around the fact the plaintiff is a Connecticut resident who was injured in Connecticut by an allegedly defective product sold in Connecticut. New Jersey's relationship to this case is based on the fact that it involves the manufacture and distribution of an allegedly defective product by a business based in New Jersey. The question remains which of these relationships is the more significant in light of the particular tort issue involved in this case, that issue being whether the Connecticut Product Liability Act with its exclusivity provision or the New Jersey Product Liability Act which lacks an exclusivity provision should govern the product liability claim asserted by the plaintiff. That answer can be found by reviewing the factors set forth in Section 6 of the Restatement Second as they relate to each state's contacts and the tort issue involved.
As previously noted, the factors recognized by Section 6 as relevant to the choice of applicable law are as follows: (a) the needs of the interstate and international systems; (b) the relevant policies of the forum; (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue; (d) the protections of justified expectations; (e) the basic policies underlying the particular field of law; (f) certainty, predictability and uniformity of result; and (g) ease in the determination and application of the law to be applied. This court is not aware of the need in this instance to protect justified expectations or to apply basic policies underlying product liability law and the parties have not made me aware of any such need. Nor does ease in the determination and application of the law to be applied have any particular applicability here. In contrast, the relevant policies of the forum, Connecticut, and of other interested states, in this case, New Jersey, and the need for uniformity of result are important factors to consider in determining which state's product liability law to apply. It is to a review of these factors that I now turn.
The policies underlying New Jersey's product liability statute are (1) to provide full and fair compensation to the injured party and (2) to insure the defect-free design and manufacture of a product. Deemer v. Silk City Textile Machinery Co., 193 N.J. Super. 643, 650-51, 475 A.2d 648 (1984). Since the plaintiff was a resident of Connecticut and "New Jersey has no interest in protecting the compensation rights of a non-domiciliary resident," Id., 649, New Jersey's interest in applying its product liability law in this case is limited to deterring tortious conduct of businesses located in New Jersey. The Supreme Court of New Jersey has recognized such an interest to be significant one. "We conclude that this State has a strong interest in encouraging the manufacture and distribution of safe products for the public and, conversely, in deterring the manufacture and distribution of unsafe products within this state." Gantes v. Kason Corporation, 145 N.J. 478, 490; 679 A.2d 106 (1995). As the place where the business is located which manufactured the allegedly defective product and which failed to adequately warn of the product's dangers, New Jersey has an interest in seeing that Wyeth is deterred from manufacturing defective products or inadequately warning consumers.
This interest remains a significant one notwithstanding the fact that the plaintiff here has not alleged that the product was manufactured in New Jersey. A state's interest in deterrence extends to businesses which have their principal place of business within that state but which have their manufacturing site out of state because final decision-making authority regarding important business decisions rests at corporate headquarters.
It is not necessary however for New Jersey's product liability act to apply to this case for New Jersey's interest in deterrence to be served. In Gantes, supra, the New Jersey Supreme Court stressed New Jersey's interest in deterring the manufacture of dangerous products by businesses located there in holding that the New Jersey's statute of limitations, rather than Georgia's statute of repose, applied to the product liability action. In that case, New Jersey's interest in deterrence was substantial because the plaintiff who was injured by an allegedly defective product would have had no remedy available to him if the New Jersey statute of limitations failed to apply. Here, the issue is which state's product liability act applies. Under Connecticut's product liability act, the plaintiff will be able to recover damages for injuries caused by any defects in the product or by inadequate warnings and New Jersey's interest in deterring the manufacture of unsafe products will be served.
What the plaintiff will lose through the application of Connecticut's product liability statute is the ability to seek remedies beyond those offered by that statute. Because it lacks an exclusivity provision, application of New Jersey's product liability statute would allow the plaintiff to seek treble damages and attorneys fees under the New Jersey Consumer Fraud Act. Connecticut's product liability statutes allow for the award of punitive damages in an amount not to exceed twice the damages awarded the plaintiff, General Statutes § 52-240b, and the plaintiff has filed such a claim in this case. Consequently, New Jersey's actual interest in this case is not preserving its ability to deter tortious conduct but in gaining some added measure of deterrence that is acquired through the ability to recover attorneys fees and treble damages, rather than double damages. The latter interest is merely incremental and lacks the substantial weight of the former interest.
Connecticut has multiple interests which are served through the enactment of its product liability statute. One interest is to compensate individuals for injuries caused by defective products. See Wagner v. Clark Equipment Co., 243 Conn 168, 194 (1997) ("The doctrine [of strict products liability] represents a policy decision that the burden of injuries brought about by a defective product should not be placed upon the individual who uses the product but, rather, should be borne by the manufacturer or supplier, and thus eventually spread among the consuming public.") Another interest is to protect people from harm caused by defective and hazardous products by deterring the manufacture and distribution of such products. See Vitanza v. Upjohn Co., 257 Conn. 365, 381 (2001). See also Potter v. Chicago Pneumatic Tool Company, 241 Conn. 199, 209 (1997). Connecticut's interests in compensating victims and deterring the distribution of defective products will be served in this case regardless of which state's product liability statute applies.
Connecticut also enacted its product liability statute to reduce the prior complexity of pleading which existed at common law and merge the various causes of action, such as negligence, strict liability and warranty, into one statutory cause of action. Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 292 (1993) ("The intent of the legislature was to eliminate the complex pleading provided at common law: breach of warranty, strict liability and negligence.") See also Winslow v. Lewis-Shepard, Inc., 212 Conn. 462 (1989). This interest would be undermined if New Jersey's product liability statute were chosen to apply to this case. Since that act lacks an exclusivity provision, the plaintiff would be free to assert other causes of action, as she has done, and frustrate Connecticut's desire to lessen the burden on the parties and the courts caused by complex pleading.
As noted by our Supreme Court in Lynn v. Haybuster Mfg., Inc., supra, the legislative history of Connecticut's product liability act contains the following exchange: "[Senator Richard C. Bozzuto]: Senator DePiano, as I understand it, adoption of this statute will in effect, wipe out existing case law. Is there any advantage to that as opposed to adopting statutory language? Would you comment?
"[Senator Salvatore C. DePiano]: I wouldn't say we would be abolishing all case law, what we're really abolishing is the various causes of actions that have been brought in cases which we normally would call products liability cases. For example, the theory of strict liability, warranty, negligence and contract. They would all be now merged into one cause of action which has been created by statute." 22 S.Proc., Pt. 14, 1979 Sess., p. 4639.
Section 6 also recognizes that uniformity of result is a factor which should be considered in determining the applicable law. In this case, uniformity of result counsels for application of Connecticut's law. The plaintiff's contention that the place of business of the product seller should control would result in the protections afforded Connecticut's consumers and users becoming dependent on the location of the product seller. Given that Connecticut is served by a wide array of product sellers based in states throughout the nation, the product liability law that applied in any given case would be anything but uniform. Accordingly, uniformity of result is not promoted by application of the product liability law of the state of the product seller. See Rutherford v. The Goodyear Tire and Rubber Company, 943 F.Sup. 789, 792 (1996), in which the court rejected the plaintiff's claim that the product liability law of Kentucky, the place of manufacture, should apply rather than the law of Indiana, the place of injury, finding the "Plaintiff's choice of law theory would result in inconsistency, complexity, and potential unfairness." In contrast, application of Connecticut's product liability law to all product sellers, both in-state and out-of-state, results in uniform liability and protection for every Connecticut resident who purchases allegedly defective products in Connecticut and who is injured here.
Finally, the Restatement also establishes more precise rules regarding the appropriate choice of law for particular tort issues. See §§ 146-155 of the Restatement (Second). In § 146, the Restatement provides that "In an action for personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless with respect to the particular issue, some other state has a more significant relationship under the principles in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied." "This formulation essentially establishes a presumption that the state with the most significant relationship is the state where the injury occurred, absent an overriding interest of another state based on the factors articulated in section 6." Dorman v. Emerson Elec. Co., 23 F.3d 1354, 1358 (8th Cir., 1994). See also McKinnon v. F.H. Morgan Co., Inc., 170 Vt. 422, 750 A. 21026 (2000). As noted previously, New Jersey's interest in applying its product liability statute in this case is limited to the incremental measure of deterrence gained by the availability of treble damages and attorneys fees. I find this interest insufficient to overcome the presumption established by § 146 that the law of the place of injury applies in a personal injury action.
For the aforementioned reasons, the defendant's motion to strike the second, third and fourth counts of the plaintiff's amended complaint is hereby granted.
BY THE COURT
Jon M. Alander Judge of the Superior Court