Opinion
No. X04 MMX CV04 4003261 S
December 22, 2005
MEMORANDUM OF DECISION
The plaintiffs are Barbara Miller, the administrator CTA of the estate of Leonard Klein, and Florence Klein, the widow of Leonard. They have brought an action sounding in medical malpractice against a cardiothoracic surgeon, his medical group, and Hartford Hospital. After the original action was filed, the plaintiff added three counts against CryoLife, Inc., which provided a human allograft heart valve which was transplanted into Leonard Klein's body. The three counts sound in products liability, loss of consortium and recklessness. The products liability count includes a clause to the effect that should the products liability count be found inappropriate, then a wrongful death action pursuant to § 52-555 is alleged. The counts, greatly summarized, allege that the valve was infected with a fungus which ultimately caused Mr. Klein's death. Cryolife has moved to strike the counts for two fundamental reasons: It argues that the valve is not a product for purposes of the products liability act and that any action pursuant to § 52-555 is barred by that statute's internal statute of limitations.
We first carefully consider the facts asserted in Count Ten, which purports to assert the administrator's products liability and wrongful death actions against Cryolife. After introducing the players, the count recites at some length a history of the Cryolife company and some problems encountered by the company in California. Though interesting, and perhaps of some relevance to some of the claims, the history has little to do with the issues presented in this motion. It is relevant that Cryolife allegedly was at all times engaged in the business of obtaining from human cadavers tissues, including aortic heart valve tissues, processing them, and forwarding them for implantation as transplants. On about March 2, 2002, such a valve was shipped and on March 4, 2002, it was transplanted into Leonard Klein. Various procedures were allegedly not appropriately performed, and the valve was contaminated with aspergillus. The contamination ultimately caused the death of Mr. Klein on November 11, 2002. (¶¶ 36-40.) The complaint goes on to allege causes of action pursuant to General Statutes §§ 52-472m et seq., the Connecticut Products Liability Act ("CPLA"). The count had previously stated (¶ 3) that "[i]n the alternative, if it is determined that the allegations of the complaint do not fall under . . . (CPLA) for any reason, then this is a wrongful death claim being brought pursuant to Connecticut General Statutes § 52-555."
The eleventh count incorporates the allegations of the tenth count and claims loss of consortium on behalf of the plaintiff Florence Klein. The twelfth count alleges reckless disregard for the safety of the product, and asserts punitive damages pursuant to General Statutes § 52-240b on behalf of the administrator.
I. Is a Human Heart Valve a "Product"?
Cryolife has moved to strike the products liability aspects of the complaint on the ground that an allograft from a cadaver is not a product for the purpose of the product liability act. The argument is premised principally on General Statutes § 19a-280, which provides that:
The implied warranties of merchantability and fitness shall not be applicable to a contract for the sale of human blood, blood plasma, or other human tissue or organs from a blood bank or reservoir of such other tissues or organs. Such blood, blood plasma, and the components, derivatives or fractions thereof, or tissue or organs shall not be considered commodities subject to sale or barter, but shall be considered as medical services.
Cryolife contends that the plain language of the statute compels the granting of the motion to strike: The complaint itself alleges that the transplanted valve is human tissue, and, according to Cryolife, thus ought not be considered a product for purposes of the product liability act. While the question of whether it is "from a . . . reservoir" remains somewhat less strikingly resolved, Cryolife seems to suggest that the allograft must come from a supply or inventory of tissues, and thus fits the definition.
The plaintiffs suggest that the analysis is not quite so straightforward. The plaintiffs argue that § 19a-280 does not apply to shield out-of state for-profit enterprises from being considered product sellers, but Coffee v. Cutter Biological and Miles Laboratories. Inc., 809 F.2d 191 (2d Cir. 1987), holds quite vehemently to the contrary. Coffee held that transactions involving Koate, a blood product processed by the defendant, were intended by the legislature to be considered provisions of services rather than sales of a product; the intent was to distinguish transactions involving products derived from human tissue from ordinary commercial transactions. Id., 193-94. It didn't matter whether the context was commercial or non-profit.
It is true, as noted by the plaintiffs, that Coffee is not binding authority, because the Second Circuit affirmed United States District Judge Burns, who was applying Connecticut law. A federal court's determination of state law is not binding on the state court. I find the decision persuasive nonetheless, and there is no decision that I found to the contrary.
The plaintiffs also seek to establish, through legislative history, that the legislature did not intend to except from the definition of "product" cadaver transplant organs provided by commercial establishments. Although much of the testimony before the legislature was offered on behalf of non-profit enterprises such as hospitals, there appears to be no effort to exclude commercial enterprises. Indeed, as noted in Coffee and in Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 405 (1987), the legislative history suggests that the intent was to define as services the provision of all human tissue. Indeed, according to Zichichi, supra, the statement of purpose introducing 1971 Public Act No. 397, ultimately codified as § 19a-280, stated: "The furnishing of blood, blood plasma or tissue is a medical service and should not be construed in the same manner as the sale of ordinary merchandise." Id.
A reading of the Restatement (Third) of Torts, Product Liability, is instructive. In § 19(c), it is specifically stated that the definition of product excludes human blood and tissue. Comment c observes that the various jurisdictions, virtually unanimously, whether by statute or by case law, have determined that human tissue is not to be considered a product for the purpose of product liability law, even though a mechanistic application of the definitions of "product" might yield an opposite result.
See also the cases collected in the comment, such as Kirkendall v. Harbor Insurance Co., 887 F.2d 857 (8th Cir. 1989).
There is scant, if any, specific authority for the proposition that an aortic valve, transplanted from a human cadaver into a living human, is to be considered a product for the purpose of the application of product liability law. I note, however, that the decisions cited above arise most often in the context of a motion for summary judgment. It appears to me that this would be the prudent course to follow in this case: A motion to strike is to be denied, of course, if any set of facts admissible under the pleadings could result in relief being granted, and perhaps some issue of fact might appear such that the general proposition, as stated in § 19a-280 and the vast majority of the case law, may be questioned. The motion to strike is denied, then, on the issue as to whether the valve in question can possibly be deemed to be a product under the pleadings, with the understanding that the legal issue has not been determined adversely to Cryolife at this point.
At oral argument, the plaintiffs' attorney handed up a copy of a public health notification from the federal Food and Drug Administration, which suggests that for the purpose of the duty of organizations to report events to the FDA, allograft heart valves are considered to be medical devices rather than tissues. I am not sure how far a federal agency's notice regarding reporting of adverse events takes us on the issue of whether the provision of such valves is a product or a service for the purpose of applying product liability law.
The plaintiffs refer in their brief to Burwell v. American Edwards Laboratory, 574 N.E.2d 1094 (Ohio App. 1989). This case, however, involves a porcine (pig) valve, and, though it was treated as a product in this case, there apparently was never an issue raised as to whether it should be a product or a service.
I should note that the plaintiffs have claimed that § 19a-280a, which prohibits the sale of human organs, supports their position regarding application of the "shield" law to commercial enterprises. Cryolife argues that the statute strengthens its position that the provisions of human valves must be a service. After analyzing § 19a-280a, I don't think that it especially helps or hurts either position.
II. If Deemed a Wrongful Death Action, is it Time-barred?
It may be recalled that the plaintiffs alleged in the alternative that if the valve was deemed not to be a product, then Count Ten was being brought as a wrongful death action pursuant to General Statutes § 52-555. Referring to § 52-555's internal time limitation and cases such as Ecker v. West Hartford, 205 Conn. 219, 231-32 (1987), Cryolife urges that any action based on the wrongful death statute must be stricken. I agree.
The timing of the relevant events appears in the pleadings and related court documents. According to the complaint, death occurred on November 11, 2002 (Count 10, ¶ 40). Cryolife was served on February 28, 2005. The action was "brought," then, more than two years but less than three years from the date of death. Ordinarily, then, there would seem to be little doubt that the action is barred. Ecker, supra; Lynn v. Haybuster Mfg. Co., 226 Conn. 282, 295 (1993).
The plaintiffs raise several arguments in opposition. They claim that because the administrator-plaintiff was appointed on May 25, 2004, the time to bring the action was extended by virtue of General Statutes § 52-594. This section provides:
If the time limited for the commencement of any personal action, which by law survives to the representatives of a deceased person, has not elapsed at the time of the person's death, one year from the date of death shall be allowed to his executor or administrator to institute an action therefor. In computing the times limited in this chapter, one year shall be excluded from the computation in actions covered by the provisions of this section.
The traditional interpretation and application of § 52-594 has been to allow time for an executor or administrator of an estate to serve an action which survives a decedent where otherwise the time would expire relatively shortly after death. To take perhaps an oversimplistic example, if A has a contract action which accrued on February 1, 2000, a six-year statute of limitations governs the action, and A dies on January 15, 2006, then the representative of A's estate has until January 15, 2007, to bring the action. As stated, usually succinctly, the statute has the effect of extending the statute of limitations for one year after the death of the person who originally "owned" the cause of action. See Leahy v. Cheney, 90 Conn. 611, 613 (1916); Manjuck v. Stamford Hall Co., 16 Conn.Sup. 434, 437 (1948). The first sentence of § 52-594, then, would serve only to allow suit to be brought for a year after death, which is of course less than the two years specifically allowed pursuant to § 52-555. In any event the two-year period is not extended.
Leahy makes it clear that § 52-594 does not shorten the time within which to serve a cause of action. That is, in the hypothetical situation mentioned above, if A died on January 1, 2001, the statute of limitations would not expire one year from death, on January 1, 2002.
The plaintiff seems to argue that the second sentence serves to add a year to the statute of limitations when a person dies. The second sentence is somewhat difficult to fathom, as pointed out in the persuasive discussion by Judge Underhill in Fenton v. United Technologies Corp., 204 F.Sup.2d 367, 373 (2002). In Fenton, as here, the plaintiff suggested that the second sentence of § 52-594 has the effect of adding a year to every statute of limitations governing every case in which a plaintiff dies. Judge Underhill rejected that contention as being irrational and not consistent with the first sentence. He concluded that the "second sentence, though somewhat ambiguous and possibly redundant, further clarifies that the exclusion of one year [the maximum allowed by the first sentence] from the underlying statute of limitations applies only to statutes of limitations found in Chapter 926 and only to cases that are covered by the provisions of section 52-594." Id.
I agree with the analysis of Judge Underhill and disagree with the analysis in the Superior Court decision of Slater v. Mount Sinai Hospital, 1997 Ct.Super 1614 (L.P. Sullivan, J.). See also Girard v. Weiss, 43 Conn.App. 397, 418 (1996) ("Section 52-594 provides that if the limit of time to bring the decedent's action has not elapsed at the time of the death, an action may be instituted within one year from the date of death"). In the circumstances of this case, I do not believe that § 52-594 effectively extends the statute of limitations. Pursuant to § 52-555 and Ecker, supra, the motion to strike is granted as to the wrongful death claim.
Ordinarily, counts may not be stricken in part. In the fairly unusual circumstances of this case, however, it seems appropriate to do so, and the issues have been in a manner conducive to doing so.
Several observations may be appropriate. First, the entire discussion of the effect of the second sentence of § 52-594 is probably academic, because the limitation sought to be extended does not appear in Chapter 926 of the General Statutes ("this chapter"). Rather, the limitation appears in the statute which authorizes the wrongful death action, § 52-555, which appears in Chapter 925 of the General Statutes. Second, the inequity which § 52-594 seeks to address is the loss of causes of action in the confusion and unsettled state of affairs following a death. Because wrongful death actions by definition arise from that death, and the legislature provided for a specific statute of limitations running from the time of death, the "savings" provisions of § 52-594 would seem to be logically unable to save anything in the context of a wrongful death action. A plaintiff already has two years from the time of death in which to bring an action.
Finally, the plaintiffs claim that they are entitled to bring antemortem claims under the savings statute. If antemortem claims are severable from postmortem claims, then the position may have merit. It seems clear, though, that § 52-555 merges antemortem damages into the exclusive statutory cause of action. Section 52-555(a) reads as follows:
In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.
(Emphasis added.)
The statute applies to causes of action for injuries resulting in death. Our appellate authority holds that any action for pre-death injuries are merged into the statutory wrongful death action if the decedent dies as a result of those injuries:
To avoid misunderstanding, it perhaps should be pointed out that where damages for death itself are claimed in an action based on our wrongful death statute, recovery of any ante-mortem damages flowing from the same tort must be had, if at all, in one and the same action.
Floyd v. Fruit Industries, Inc., 144 Conn. 659, 669 (1957). See also Lynn v. Haybuster Mfg. Co., supra, 294 n. 10 ("If the injuries were not fatal, the victim's action survives his death . . . If the injuries were fatal, an action for wrongful death allows the victim to recover damages suffered before death as well as after. General Statutes § 52-555."); Kling v. Torello, 87 Conn. 301 (1913).
Additionally, the present pleading does not differentiate antemortem injuries from postmortem injuries. As such, whatever benefit might be provided by cases such as Foran v. Colangelo, 153 Conn. 356, 363 (1966), and Doucette v. Bouchard, 28 Conn.Sup. 460 (1970), is unavailing. I do not at this point endorse the holding of Doucette, which appears to support the plaintiffs' position, because it is contradicted by a number of subsequent Superior Court cases. Doucette gives little importance to the language of § 52-555 which states that any action surviving to the representative for injuries resulting in death must be brought pursuant to § 52-555.
III. Other Counts.
Rulings as to the loss of consortium claim in Count Eleven are the same as those relating to Count Ten, because loss of consortium claims are derivative. The viability of Count Twelve depends on the reasoning applied to Count Ten. The motions to strike both are at this point denied, subject to the observations made in connection with the rulings on Count Ten.