Opinion
X06UWYCV146025333
01-16-2018
Robin Sherwood et al. v. Stamford Health System, Inc. dba Stamford Hospital
UNPUBLISHED OPINION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 176, 201, 208, 215, & 302 AND PLAINTIFFS’ OBJECTION EN 190, 191, 193, 203, 220, 300, & 301
Court docket Entry Number.
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. The plaintiffs object.
EN 167.
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 from Dr. Gee, a urogynecologist in Hartford, Connecticut, regarding her problems with the Ethicon Prolift. Id. at 147.
16. In approximately June 2008, Ms. Sherwood met with Dr. Surrells, a urogynecologist in Norwalk, Connecticut, who " wanted to take out the mesh." Id. at 154. When asked whether Dr. Surrells told Ms. Sherwood " why he wanted to take out the Prolift, " Ms. Sherwood testified: " [n]ot in medical terms, just because it was getting- it was shrinking. And causing me problems. By this time, I had a complaint that I felt like my vagina was shortening." Id. at 155.
17. She also consulted with Dr. Bercik who recommended that she have surgery to either release or remove the Prolift. Id. at 160. That consult occurred in March 2008. Id. at 161.
18. These physician visits took place between January and June 2008.
19. Ms. Sherwood testified that " all of the doctors were telling" her that she " needed to take the Prolift out." Id. at 156. Ms. Sherwood was very upset by these consults with Dr. Staskin, Dr. Porges and Dr. Bercik. She testified: " I was sort of in a state of like what am I going to do, what am I going to do. The sky is falling." Id. at p. 146.
20. By 2010 Ms. Sherwood testified she’d developed a spot on the right side of the introitus of her vagina that was textured " like a there was screendoor wire in it(.)", Id., at p. 163, tightness, a shortened vagina, bone pain, pain in groin, pain down the right leg worsened by activities and other symptoms and signs, Id. at p. 164, attributed by her and her treating physicians to the mesh implantation.
21. Ms. Sherwood finally had the Prolift surgically removed by Dr. Schlomo Raz, at the UCLA Medical Center, in February 2011. Id. at 19, 181, 184. She testified:
a. Q. All right. So in November- just so I understand this, November 2010 you met with him, he diagnosed your problems, recommended some tests and you scheduled the surgery; is that right?
b. A Yeah. He gave me great confidence.
c. Q And the surgery we’re talking about is the complete removal of the Prolift, the Ethicon Prolift; is that right?
d. A Yes. Id. at 181.
22. Ms. Sherwood sued Ethicon in West Virginia federal court in April 2013. Id. at 194.
23. The suit alleges Ethicon sold an unreasonably dangerous and defective mesh product, to wit: the Prolift kit implanted in her on April 12, 2006, proximately harming her.
24. The summons in our case was signed on August 13, 2014 and served on the defendant on August 14, 2014.
25. Ms. Sherwood testified she first learned in June or July of 2014 she had a right of action against Stamford Hospital:
Q All right. Was it- I know Attorney Fusco suggested it was sometime shortly before the complaint was filed ... I didn’t hear that testimony from you before, but is that- is that the timing?
A I believe that I talked to Attorney Wells sometime in June of 2014 and he inquired about my health and that he wondered- he knew about a case and they were talking about it somewhere and he knew me, and he said, would you be willing to be a witness. And I agreed to that. So maybe I came in July 2014. I’m not sure. I could have come in June, so I’m very much guessing. But it was after the surgery in 2014 that he and I talked about me being a witness.
Q All right. Did he tell you that you had a potential claim against Stamford Hospital?
A I think I might have asked him because I was surprised when I was listening to the briefing about what this claim was to say, you know, did I make the right claim.
Q All right. So did you ask him if you had a potential claim against Stamford Hospital?
A That’s my best recollection. And what did he tell you?
A I think he made a call and got back to me later.
Q And what did he tell you when he got back to you?
A I think he told me that I did.
Q And that was sometime in the summer of 2014?
A To my best recollection.Id. at 199-200.
26. Ms. Sherwood avers in her October 31, 2016 affidavit opposing Stamford’s summary judgment motion: " Although I was having issues after the implant surgery I did not know that the issues were caused by 1) a defect in the product; 2) by Stamford Hospital’s conduct; or 3) that they constituted actionable harm by Stamford Hospital." EN 191.
27. Ms. Sherwood avers she did not know that the mesh product was experimental (as she claims in her Amended Complaint), Stamford was conducting studies on the mesh product and seeking compensation to promote the mesh product, Stamford approved purchase of the mesh product without proper clearance from the FDA and supporting long-term studies regarding long-term complications associated with the mesh product, relied upon Dr. Hines and Stamford to inform her of this information prior to implant of the mesh products, and, had she known of the experimental nature and/or the other information, she would not have consented to implant the mesh products during the April 12, 2006 surgery at Stamford. Id.
28. Ms. Sherwood avers that following the April 12, 2006 surgery neither Dr. Hines nor Stamford communicated results of a study within the Stamford Hospital concluding the mesh caused dyspareunia in 27% of the women, a FDA Public Health Notice in 2008 warned of numerous complications associated with transvaginal mesh placement, Dr. Hines’ 2009 conclusion that the specific mesh product, Prolift, implanted in her was unsafe, or the FDA warned in 2011 that complications from pelvic organ prolapse products like the Prolift (trade name of the mesh product implanted in Ms. Sherwood) produced serious complications that were not rare and that mesh used in transvaginal POP (pelvic organ prolapse) repair introduced risks not present in traditional non-mesh surgery for POP repair. Id.
29. Ms. Sherwood avers Stamford did not inform her " that in 2012 J&J pulled the dangerous Prolift products from the market." Id.
30. Ms. Sherwood avers she did not know that Stamford’s conduct caused her injuries when she sued Johnson & Johnson, mesh product manufacturer, in April 2013. Id.
31. Ms. Sherwood avers she did not know until after her June 2014 surgery that Stamford caused her injuries and she’d suffered actionable harm.
STANDARD OF REVIEW OF 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 ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... 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 [if the movant has met its burden] the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case ..." (Internal quotation marks omitted.) Dipietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012)." Stuart v. Freiberg, 316 Conn. 809, 820-21 (2015). This evidentiary foundation must be demonstrated with counter-affidavits and concrete evidence. Pion v. Southern New EnglandTelephone, 44 Conn.App. 657, 663 (1997). A party’s conclusory statements may not be sufficient to establish the existence of a disputed material fact, even if in affidavit form. Gupta v. New Britain General Hospital, 239 Conn. 574, 583 (1996).
The court " resolv[es] all ambiguities and draw[s] all factual inferences in favor of the party against whom summary judgment is sought." O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 37 (2nd Cir. 2003).
" Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806 (1996). " Summary judgment is appropriate on statute of limitation grounds when the material facts concerning the statute of limitations are not in dispute." Burns v. Hartford Hospital, 192 Conn. 451, 452 (1984).
Summary judgment is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 11 (1994).
Supporting and opposing affidavits must be made on personal knowledge and must set forth such facts as would be admissible in evidence. PB § 17-46. Indeed, only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. Great County Bank v. Pastore, 241 Conn. 423, 436 (1997). Hearsay statements are insufficient to contradict facts offered by the moving party and if an affidavit contains inadmissible hearsay it will be disregarded. 2830 Whitney Avenue v. Heritage Canal Development, 33 Conn.App. 563, 568-69 (1994).
DISCUSSION
Stamford Hospital is Not a Product Seller Under The CPLA
Connecticut General Statutes § 52-572m(a) defines a " product seller" as " any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption." Whether a defendant is a " product seller" under the CPLA is a question of law for the court and not the jury to decide. Svege v. Mercedes -Benz Corp., 329 F.Supp.2d 272 (D.Conn. 2004); Nazar v. Palli, 10-11, 2013 WL 1867072 (Conn.Super.Ct. Apr. 15, 2013). A predicate of a product liability action under § 52-572m et seq., requires proof the defendant sold the product at issue, Zichichi v. Middlesex MemorialHosp., 204 Conn. 399, 403 (1987). Our appellate and trial courts have repeatedly held hospitals, such as Stamford, are not in the business of selling the products used by the physician during surgery performed at the hospital, Zbras v. St. Vincent’s Medical Center, (March 20, 2002, Rush, J.) , aff’d, 91 Conn.App. 289, cert. denied, 276 Conn. 910 (2005) (holding that hospitals are not in the business of selling equipment utilized in operative procedures but are engaged in the business of providing medical services); Zelle v. Bayer Corp., (Feb. 2, 2012, Brazzel-Massaro, J.) (holding that a hospital is not a " product seller" under the CPLA merely because it charged for contrast dye used in an MRI; the use of contrast dye was incidental to the service performed by the hospital); Lambert v. Charlotte Hungerford Hosp., (November 2, 2006, Brunetti, J.) (concluding that a hospital was not a " product seller" of surgical instruments used in plaintiff’s surgery); Herrick v. Middlesex Hosp., (June 27, 2005, Silbert, J.) (granting summary judgment to defendant hospital, reasoning that the hospital provides surgeons who use the hospital’s facilities for medical operations with needed supplies, including this rod ... the hospital’s primary role is a provider of services and not of products); Wallace v. Gerard Medical, Inc., (April 7, 2003, Wiese, J.) (a hospital is not a " product seller" under § 52-572m(a), but is engaged in providing a medical service); Ferguson v. EBI Medical Systems, (Aug. 1, 1995, Hurley, J.) (" The court finds it persuasive that every superior court decision that has directly addressed the merits of this issue has rejected the proposition that hospitals constitute ‘product sellers’ under the PLA"); Lewis v. Hospital of Saint Raphael, 1988 WL 1519759 (Conn.Super.) (March 15, 1988, Flanagan, J.) (hospital was not " product seller" of fusion wire used in plaintiff’s surgery claimed to be defective); Krawiec v. OlympusCorp., 1988 WL 1519758 (Conn.Super.) (June 15, 1988, Aronson, J.) (hospital was not a " product seller" of allegedly-defective surgical instruments sold to hospital and used by surgeon) and Kenneson v. Johnson & Johnson, Inc., (D.Conn. Apr. 23, 2015) (" It is true that the Connecticut Product Liability Act, Conn. Gen. Stat. § 52-572m et seq. (" CPLA"), applies only to sales of products, not to services, and binding precedent holds that surgical implantation of a medical device is a service." citing Zbras v. St . Vincent’s Med. Ctr., 91 Conn.App. 289, 880 A.2d 999, 1002 (2005)").
" To maintain a product liability action under § 52-572m et seq., the plaintiff must establish and prove, inter alia, " that ... the defendant was engaged in the business of selling the product [and] the defect existed at the time of the sale ..." (Emphasis added.) Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 234, 429 A.2d 486 (1980); Coe-Park Donuts, Inc. v. Robertshaw Controls Co., 1 Conn.App. 84, 86, 468 A.2d 292 (1983); 2 Restatement (Second), Torts § 402A. Once a particular transaction is labeled a " service, " as opposed to a " sale" of a " product, " it is outside the purview of our product liability statute." Zichichi v. Middlesex Mem’l Hosp., 204 Conn. 399, 403 (1987).
Movant argues, and this court’s research efforts confirm, " [f]urthermore, courts on a national basis also do not hold hospitals liable for defective products used during surgery." According to the Restatement 3d of Torts, " in a strong majority of jurisdictions, hospitals are held not to be sellers of products they supply in connection with the provision of medical care, regardless of the circumstances." (Emphasis added.) Restatement 3d of Torts: Products Liability, § 20 " Definition of ‘One Who Sells or Otherwise Distributes, ’ Comment d. The Connecticut Supreme Court has adopted the Restatement analysis and it is binding on Connecticut courts. See Vitanza v. Upjohn Co., 257 Conn. 365, 373, 376 (2001) (Following the Restatement of Torts on Product Liability); see also Giglio v. Connecticut Light & Power Co., 230, 233 (1980) (The court " accepted the principles adopted by the American Law Institute as contained in § 402A of the Restatement (Second) of Torts, establishing the strict liability in torts").
EN 176, p. 27-28.
Summary judgment enters for Stamford on Count One because Stamford is not a " product seller, " as defined by our CPLA. There is no genuine issue of material fact and movant is entitled to judgment as a matter of law.
However, if Stamford is a CPLA " product seller" upon appellate review, because the CPLA is a statutorily exclusive remedy, the Second through Eleventh Counts, seeking only damages for personal injury resulting from a defective and unreasonably dangerous product, are barred. Judgment would enter for Stamford on the Second through Eleventh Counts, if Stamford is a CPLA " product seller."
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. The legislature stated that a product liability claim, as defined by the product liability act, " shall be in lieu of all other claims against product sellers for harm caused by a product." (Emphasis added.) General Statutes § 52-572n(a). We have previously reached this conclusion when interpreting the exclusivity provision. See Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 471, 562 A.2d 517 (1989) (" [t]he legislature clearly intended to make our products liability act an exclusive remedy for claims falling within its scope" [emphasis added]); cf. Daily v. New Britain Machine Co., 200 Conn. 562, 571, 512 A.2d 893 (1986) (" the products liability statute provides an exclusive remedy and ... plaintiffs cannot bring a common law cause of action for a claim within the scope of the statute"). The issue presented by the certified question, therefore, is whether the plaintiff’s CUTPA claim falls within the scope of the product liability act. If it does, then it isprecluded and may not be asserted in conjunction with the product liability act claim. (Italics added.) If, however, the CUTPA claim falls outside the purview of the product liability act, it may be asserted and the exclusivity provision will not serve as a bar. Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 126-27 (2003).
Paragraphs 46-49 inclusive of EN 167 (Amended Complaint), incorporated into all Counts.
If Stamford is a CPLA " product seller, " the court would then consider Stanford’s alternative basis for summary judgment on the First Count: expiration of the statute of limitations, the " discovery" portion of that limitations period, under Connecticut General Statutes § 52-577a(a).
" [S]ummary judgment may be granted where the claim is barred by the statute of limitations ... Summary judgment is appropriate on statute of limitations grounds when the ‘material facts concerning the statute of limitations [are] not in dispute.’ " (Citation omitted.) Romprey v. Safeco Ins. Co. of Am., 310 Conn. 304, 313 (2013). " [I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period ... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." Id. at 321.
" No product liability claim, as defined in section 52-572m, shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered ..."
" The purposes of statutes of limitation include finality, repose and avoidance of stale claims and stale evidence ... These statutes represent a legislative judgment about the balance of equities in a situation involving a tardy assertion of otherwise valid rights: [t]he theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 322-23 (2014).
Connecticut General Statutes § 52-577a (applicable to CPLA claims) and § 52-584 (applicable to medical negligence claims including ‘informed consent’ claims and reckless or wanton misconduct claims) contained two-pronged limitations: a ‘discovery’ limitation and a ‘repose’ limitation.
Lambert v. Stovell, 205 Conn. 1, 5 (1987).
Connecticut General Statutes § 52-577a(a) is the statute of limitations applicable to CPLA claims. Section 52-577a(a) provides: " (a) No product liability claim, as defined in section 52-572m , shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable careshould have been discovered, except that, subject to the provisions of subsections (c), (d) and (e) of this section, no such action may be brought against any party nor may any party be impleaded pursuant to subsection (b) of this section later than ten years from the date that the party last parted with possession or control of the product ."
Connecticut General Statutes § 52-584 provides: " No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
" (T)here is no relevant distinction, except for a difference in the stated limitation periods, between the discovery language contained in § § 52-577a and 52-584." Tarnowsky v. Socci, 75 Conn.App. 560, 569 (2003), aff’d, 271 Conn. 284 (2004).
Both statutes require suing for personal injury within specified time limit from the date when the injury is first sustained or discovered or in exercising reasonable care should have been discovered. The CPLA action must be initiated within three years while a negligence or reckless misconduct claim must be initiated within two years from the date the injury is sustained, discovered, or reasonably should have been discovered.
Neither statute defines " injury."
" Our Supreme Court has defined " injury" in § 52-584 to be an event that occurs when the plaintiff suffers actionable harm. Rivera v. Double A Transportation, Inc., supra, 248 Conn. at 26-27, 727 A.2d 204. In determining when a plaintiff has suffered actionable harm, a court must focus " on the plaintiff’s knowledge of facts, rather than on discovery of applicable legal theories." (Internal quotation marks omitted.) Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987). " A breach of duty by the defendant and a causal connection between the defendant’s breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence ... They are therefore necessary ingredients for actionable harm." (Citations omitted; internal quotation marks omitted.) Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986). Tarnowsky v. Socci, 75 Conn.App. 560, 565 (2003), aff’d, 271 Conn. 284 (2004). " Actionable harm occurs when the plaintiff discovers ... that he or she has been injured and that the defendant’s conduct caused such injury ... The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof ... The focus is on the plaintiff’s knowledge of facts, rather than on discovery of applicable legal theories." Wojtkiewicz v. Middlesex Hospital, 141 Conn.App. 282, 287 (2013).
Ms. Sherwood’s deposition testimony and medical records, recounted above in summary and documented in exhibits appended to EN 176, recount her awareness of dyspareunia, mesh-related pelvic pain and alteration of her vaginal architecture due to mesh shrinkage, and other signs and symptoms of adverse reaction to the mesh implantation, from the fall of 2006 through 2008. And because of those symptoms, Ms. Sherwood consulted with Drs. Hines, Bercik, Gee, Serrelles, Porges, Komarynsky, Staskin, Surrells and Grey before the middle of 2008. Ms. Sherwood understood her physicians, other than Dr. Hines, diagnosed her complaints of pelvic pain, dyspareunia, alteration of vaginal architecture, and other harm as caused by the mesh product implantation in the April 12, 2006 surgery. In February 2011 Ms. Sherwood had Dr. Raz remove the Ethicon Prolift mesh product implanted on April 12, 2006.
Plaintiffs assert Ms. Sherwood’s injury occurred in June or July of 2014 when she avers she first became aware, through discussion with her legal counsel, Stamford’s conduct caused her actionable harm.
Stamford asserts Ms. Sherwood’s " injury" occurred in the fall of 2006 or at the latest February 2011. The movant established no genuine issue of material fact exists but that Ms. Sherwood was injured by the April 12, 2006 mesh implantation. Ms. Sherwood’s deposition testimony, quoted in brief above, establishes that she knew of injury caused by the mesh implant by mid-2008 due to her self-examination, observation, and perceptions, and, the opinions and advice of her treating and consulting physicians. Her testimony and the medical records confirm that the mesh was surgically removed in February 2011.
" There is no genuine issue of material fact that, during these dates from late 2006 to 2008, plaintiff repeatedly recognized that she was suffering harm and knew that the harm was caused by the Ethicon Prolift. The Plaintiff eventually had the device removed in February 2011, which, at the absolute latest was when the statute of limitations began to run." EN 176, p. 16.
However, movant has not established there is no genuine issue of material fact Ms. Sherwood knew the Stamford Hospital breached a duty causing her harm. Ms. Sherwood’s knowledge the mesh caused her harm, the need for the mesh to be " released" within the vagina, or even entirely removed, was not knowledge that the mesh was defective, a sine qua non of the CPLA claim, or not as impliedly or expressly warranted, a sine qua non of the warranty claims. As plaintiff cogently argues, " A poor medical result is not, in itself, evidence of any wrongdoing by the health care provider." Connecticut Civil Jury Instructions, 3.8-3, http://www.jud.ct.gov/ji/civil/Civil.pdf. The fact of a product accident does not necessarily establish either the existence of a defect or that the manufacturer is responsible, both of which must be proven in product liability cases. (Quotation marks deleted.) Metro. Prop. & Cas. Ins. Co. v. Deere & Co., 302 Conn. 123, 136, 25 A.3d 571, 581 (2011). Defendant conflates injury and adverse results with knowledge of a defect.
DE, 190, p. 1.
The missing element of actionable harm requirement is that Ms. Sherwood did not know, until she was advised by counsel in 2014, whether Stamford breached a duty of care causing her harm.
In Jackson v. Tohan, 113 Conn.App. 782, 788 (2009), the plaintiff was told by a consulting physician " something had gone wrong during (her first) surgery and that she needed another surgery to repair the resulting problem" and she was also told in November 2003 her surgeons had " messed up" - " (o)n that basis, the plaintiff knew or should have known no later than November 2003, that she had sustained an injury as a result of the actions of her health care providers."
Movant has not offered evidence that Ms. Sherwood was told by anyone (before her 2014 legal consultation with her counsel), or that she otherwise learned, that the product was defective or not as warranted, the hospital or its employee " messed up" - or that Stamford Hospital otherwise breached a duty of care owed to Ms. Sherwood. " The plain language of the statute does not, therefore, impose any specific affirmative duty on the plaintiff to investigate a potential claim of malpractice. Rather, the sole inquiry, in this context, is whether, in the light of all relevant circumstances, the plaintiff exercised reasonable care in the discovery of her injury." Taylor v. Winsted Memorial Hospital, 262 Conn. 797, 805 (2003). Absent that evidence, there remains a genuine issue of material fact on whether Ms. Sherwood sued within two years from the date when the injury was first sustained or discovered or in the exercise of reasonable care should have been discovered.
During oral argument movant’s counsel agreed to provide the court with the portion of Ms. Sherwood’s deposition transcript wherein she testified she was told by Dr. Schlomo Raz, the UCLA Medical Center surgeon who removed the mesh from Ms. Sherwood in February 2011, that the mesh product was " defective." Neither counsel nor the court was able to locate that testimony.
Ms. Sherwood also prosecutes several misrepresentation claims: lack of informed consent and innocent/negligent/intentional misrepresentation.
Movant argues Sherwood knew the risks, benefits, and alternatives as Dr. Hines informed her, she experienced several medical problems of which she testified she was not informed, but the movant offered no evidence that the medical problems she experienced were risks of the procedure of which she should have been informed . The movant offered no evidence that Ms. Sherwood would have withheld consent to the surgery had she been properly informed. Absent that evidence, there remains a genuine issue of material fact on whether Ms. Sherwood sued within two years from the date when the injury was first sustained or discovered or in the exercise of reasonable care should have been discovered.
Plaintiffs’ misrepresentation claims pivot on information allegedly withheld from Sherwood by Stamford. Some information was allegedly withheld prior to surgery and some information after surgery. Ms. Sherwood’s testimony was she did not learn of the " withheld" information until 2014. Movant offered no evidence that Ms. Sherwood learned of the " withheld" information before 2014. Absent that evidence, there remains a genuine issue of material fact on whether Ms. Sherwood sued within two years from the date when the injury was first sustained or discovered or in the exercise of reasonable care should have been discovered. Whether movant had a duty to disclose the " withheld" information was not an issue raised/briefed by the litigants.
Sherwood’s products liability lawsuit versus Johnson & Johnson was not part of the documentation in support of this motion.
The movant has failed to prove there is no genuine issue of material fact on when Ms. Sherwood discovered Stamford had caused her actionable harm before Ms. Sherwood’s legal consult in 2014.
Statute of Repose
" It bears noting that our holding does not put the defendant in infinite jeopardy of stale claims. The plaintiff’s complaint was filed within the alternate three year time requirement also contained in § 52-584." The " actionable harm test" applies only to " causes of action not barred by the repose portion of § 52-584 which bars suit brought more than three years from [the date of] the act or omission complained of." (Internal quotation marks omitted.) Catz v. Rubenstein, supra, 201 Conn. at 50, 513 A.2d 98. Because the plaintiff served the defendant within three years of the date when the injury occurred, his complaint complied with the three year requirement." Tarnowsky v. Socci, 75 Conn.App. 560, 569 (2003), aff’d, 271 Conn. 284 (2004).
" It is well established that " the relevant date of the act or omission complained of, as that phrase is used in § 52-584, is the date when the negligent conduct of the defendant occurs and ... not the date when the plaintiff first sustains damage." (Internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994). Therefore, an action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations contained in § 52-584, regardless of whether the plaintiff had not, or in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period. Stein v. Katz, 213 Conn. 282, 285, 567 A.2d 1183 (1989)." Witt v. St . Vincent’s Med. Ctr., 252 Conn. 363, 369 (2000).
As the patient-physician relationship was mutually terminated in December 2007, and no further communications occurred between the parties, though the initial surgery implanting the vaginal mesh occurred on April 12, 2006, a revision surgery was done by Dr. Hines in the fall of 2007, and the last communication and interaction between the parties occurred in December 2007, then December 2007 is the latest date the act or omission complained of occurred.
The negligence, recklessness, and lack of informed consent claims are governed by § 52-584. This statute provides a three-year statute of repose.
The civil conspiracy and three misrepresentation counts are all tort claims governed by the three-year statute of limitations in § 52-577.
Sec. 52-577. Action founded upon a tort. No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.
CUTPA has a three-year statute of limitations. General Statutes § 42-110g(f). sale of a product. Because the Stamford Hospital is not a product seller, no UCC warranties are imposed on Stamford. However, should the Stamford Hospital be a product seller, the sale of goods took place on April 12, 2006. The statute of limitations for any alleged breach of warranty expired on April 12, 2010, subject to the tolling provisions of C.G.S. § 42a-2-725(4).
Sec. 42-110g. Action for damages. Class actions. Costs and fees. Equitable relief. Jury trial.
The breach of warranty claims are governed by the four-year statute of limitations in the Connecticut Uniform Commercial Code, General Statutes § 42a-2-725. Breach of warranty claims run at the time of
Sec. 42a-2-725. Statute of limitations in contracts for sale.
The movant has established that the repose section of all statutes of limitation would bar each cause of action alleged.
However, plaintiffs’ Reply to the Special Defense asserts the repose portion of the limitations statutes are tolled by operation of the doctrines of continuing course of conduct and fraudulent concealment. The plaintiff must raise a genuine issue of material fact that tolling provisions apply. " Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Citations omitted.) Golden v Johnson Memorial Hosp., Inc., 66 Conn.App. 519 (2001).
" It is well established that " the relevant date of the act or omission complained of, as that phrase is used in § 52-584, is the date when the negligent conduct of the defendant occurs and ... not the date when the plaintiff first sustains damage." (Internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994). Therefore, an action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations contained in § 52-584, regardless of whether the plaintiff had not, or in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period. Stein v. Katz, 213 Conn. 282, 285, 567 A.2d 1183 (1989). As we recently reiterated in Sherwood v. Danbury Hospital, 252 Conn. 193, 202-03, 746 A.2d 730 (2000), a statute of limitations or repose " may be tolled under the ... continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date ... [T]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong ... Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act." (Citations omitted; internal quotation marks omitted.)" Witt v. St . Vincent’s Med. Ctr., 252 Conn. 363, 369-70 (2000).
CONTINUING COURSE OF CONDUCT
" With respect to the continuing course of conduct doctrine, the court must determine " if there is a genuine issue of material fact with respect to whether the defendant: (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty." Witt v. St . Vincent’s Medical Center, 252 Conn. 363, 375 (2000) (emphasis added)." Grey v. Stamford Health Sys., Inc., No. CV010182783S, 2005 WL 1545302, at *5 , aff’d, 282 Conn. 745 (2007).
Plaintiffs allege a variety of " initial wrongs" upon the plaintiff in the Second through Eleventh Counts of the Amended Complaint as recited. Ms. Sherwood’s affidavit creates a genuine issue of material fact on claims of initial wrong sounding in negligence, lack of informed consent, reckless misconduct, and the misrepresentation claims.
Stamford urged the court to carefully examine whether Stamford owed a continuing duty to the plaintiff related to the alleged original wrong- i.e. the second prong of the continuing duty test.
As in Grey, supra, adopting the reasoning in Grey, this court cannot find a " special relationship" existed between Ms. Sherwood and Stamford after the parties mutually agreed to sever the patient-physician relationship in December 2007.
As the plaintiffs have neither pled nor offered proof of a " special relationship" between Ms. Sherwood and Stamford existing after December 2007, the plaintiffs have failed, on this basis, to raise a genuine issue of material fact that the continuing course of conduct doctrine should toll the statute of limitations.
The statue of repose would operate from that date barring all claims in the Second through Eleventh Counts if plaintiffs solely relied upon the " special relationship" to create a continuing duty.
However, plaintiffs rely upon " ... some later wrongful conduct of a defendant related to ‘the prior act(.)" (Citations omitted; internal quotation marks omitted.) Witt v. St . Vincent’s Med. Ctr., 252 Conn. 363, 369-70 (2000), creates a continuing duty to warn plaintiff.
" [I]n the medical treatment context ... continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct ..." (Internal quotation marks omitted.) Id., at 371, 746 A.2d 753. In Sherwood v. Danbury Hospital, 252 Conn. 193, 206, 746 A.2d 730 (2000), a genuine issue of material fact existed as to whether the defendant hospital knew before discharging the plaintiff patient that she had received untested blood that could have contained the human immunodeficiency virus. In Witt, the physician did not inform the patient that the physician was concerned that the lump in the patient’s neck could become cancerous. Witt v. St . Vincent’s Medical Center, supra, 252 Conn. at 372-73, 746 A.2d 753. As the defendants in both cases were aware of the risks at the time that the plaintiffs were discharged, (emphasis added), our Supreme Court held that the three-year statute of repose was tolled until the defendants informed the plaintiffs of such risks. Witt v. St . Vincent’s Medical Center, supra, at 376, 746 A.2d 753; Sherwood v. Danbury Hospital, supra, at 209, 746 A.2d 730. We have held, however, that for a duty to warn to continue beyond the limitation period imposed by § 52-584, there must be probative evidence that the medical care provider actually knew of the risk before discharge . (Emphasis added.) See Hernandez v. Cirmo, 67 Conn.App. 565, 572, 787 A.2d 657, cert. denied, 259 Conn. 931, 793 A.2d 1084 (2002); Nieves v. Cirmo, 67 Conn.App. 576, 587, 787 A.2d 650, cert. denied, 259 Conn. 931, 793 A.2d 1085 (2002)." Neuhaus v. Decholnoky, 83 Conn.App. 576, 581-82 (2004), aff’d in part, rev’d in part, 280 Conn. 190 (2006).
Plaintiffs assert Stamford, acting through Dr. Hines, breached a duty of care owed to Ms. Sherwood, before the April 12, 2006 surgery and before her discharge from his care, by failing to advise her of risks of which he had actual knowledge: 1) the lack of any data regarding Prolift kit; 2) the lack of long-term data regarding the Prolift kit; 3) a 2006 study of mesh product implant patients, co-authored by Dr. Hines, included a finding of 27% of patients reported dyspareunia; and 4) Dr. Hines’ financial relationship with Johnson & Johnson associated with the polypropylene vaginal mesh products.
EN 300, p. 8.
Plaintiffs, during oral argument, posit Dr. Hines knew what he did not know- i.e. items 1 & 2 above- that is: " there were known unknowns" of which he had a duty to warn Ms. Sherwood. Plaintiffs offer no evidence supporting this proposition. Plaintiffs propose physicians have a continuing duty to warn their patients of risks, undefined and unlimited by criteria, after the physician patient relationship ends. Plaintiffs offer no binding precedent for this proposition and this court cannot adopt this position without eliminating the statute of limitations in medical negligence cases based on failure to inform or warn. " This timing restriction with respect to claims of malpractice against a health care provider represents a valid policy choice by the legislature that should be respected in all but the most " exceptional circumstances"; Lagassey v. State, 268 Conn. 723, 752, 846 A.2d 831 (2004); because " any tolling of the statute of limitations may compromise the goals of the statute itself." DeLeo v. Nusbaum, 263 Conn. 588, 596, 821 A.2d 744 (2003)." Neuhaus v. DeCholnoky, 280 Conn. 190, 207 (2006).
" (T)hat the application of the continuing course of conduct doctrine in this context, which essentially implies an application of the doctrine to any failure to warn claim regardless of the actual knowledge possessed by the defendant, effectively would nullify the repose portion of the statute of limitations ..." Neuhaus v. DeCholnoky, 280 Conn. 190, 206 (2006).
Items 3 and 4 above- a 2006 co-authored study of Dr. Hines’ mesh patients and Dr. Hines’ financial relationship with Johnson & Johnson- Prolift mesh manufacturer, is claimed, without medical expert testimony/affidavit support, to be information that should have been provided to Ms. Sherwood prior to her implant surgery. " We have noted that the cases on informed consent require something less than a full disclosure of all information which may have some bearing, however remote, upon the patient’s decision ... Indeed, " the doctrine of informed consent is a limited one." (Citations omitted.) Duffy v. Flagg, 279 Conn. 682, 692-93 (2006). Concerning item 4- " Hines’ financial relationship, " informed consent obligations are limited to " risks associated with the procedure" and clearly the financial relationship of Dr. Hines and J&J is outside that category.
[I]nformed consent involves four specific factors: (1) the nature of the procedure; (2) the risks and hazards of the procedure; (3) the alternatives to the procedure; and (4) the anticipated benefits of the procedure ... We have noted that the cases on informed consent require something less than a full disclosure of all information which may have some bearing, however remote, upon the patient’s decision ... Indeed, " the doctrine of informed consent is a limited one." Duffy v. Flagg, at 692-3.
None of the four items of information Dr. Hines’ knew before the patient-physician relationship terminated in December 2007 created a continuing duty to disclose after the physician-patient relationship ended. Absent a continuing duty to disclose, the statute of limitations is not tolled by the continuing course of conduct doctrine. Plaintiffs assert Dr. Hines had to warn Ms. Sherwood of: 1) the October 20, 2008 FDA notice; 2) Hines’ May 13, 2009 conclusion that the Prolift mesh was unsafe; 3) the July 31, 2011 FDA notice; and 4) the 2012 decision by Johnson & Johnson to withdraw the Prolift mesh product from the market. All four events occur well after Ms. Sherwood was discharged from Dr. Hines’ care. As Dr. Hines did not have " actual knowledge" of these events prior to Ms. Sherwood’s discharge from care, these events cannot support her claim of continuing course of conduct.
EN 191, Ex P.
EN 301, Ex Q.
EN 191, Ex. R.
The continuing course of conduct doctrine does not toll the repose portion of the statute of limitations.
FRAUDULENT CONCEALMENT OF A CAUSE OF ACTION
The plaintiffs assert a genuine issue of material fact exists on whether the hospital and/or Dr. Hines fraudulently concealed the existence of Ms. Sherwood’s cause of action.
Connecticut General Statutes § 52-595 provides: " If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of action, such cause of action shall be deemed to accrue against such person liable therefor at the time when the person entitled to sue thereon first discovers its existence."
" Under our case law, to prove fraudulent concealment, the plaintiff is required to show: (1) the defendants’ actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiff’s cause of action; (2) the defendants’ intentional concealment of these facts from the plaintiff; and (3) the defendants’ concealment of these facts was for the purpose of obtaining delay on the plaintiff’s part in filing a complaint on his cause of action. See Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221 (1995). Fraudulent concealment must be proved by the more exacting standard of clear, precise, and unequivocal evidence ... Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 105, 912 A.2d 1019 (2007)." Id. Macellaio v. Newington Police Dept., 145 Conn.App. 426, 432-33 (2013).
At this juncture, Ms. Sherwood must only raise a genuine issue of material fact that Stamford knew of the facts necessary to establish Ms. Sherwood’s cause of action, had intentionally concealed those facts from the plaintiff, and Stamford’s concealment of those facts was for the purpose of obtaining delay on the plaintiff’s part in filing a complaint on her cause of action. Connell v. Colwell, 214 Conn. 242, 250 (1990).
Plaintiffs assert Stamford/Hines was obliged to seek out and inform Ms. Sherwood of facts necessary for Ms. Sherwood’s timely filing of suit.
Ms. Sherwood argues Stamford/Hines had a fiduciary duty to affirmatively disclose relying upon Fenn v. Yale Univ., 283 F.Supp.2d 615 (D.Conn. 2003). Professor Fenn’s employment contract with Yale University and conditions of employment, including a federal grant through the NIH, imposed a duty on Professor Fenn to inform Yale University of patentable inventions and to answer honestly the university’s inquiries about patent efforts. Professor Fenn’s contractual obligation to report and intentional deception of the university about the state of facts necessary to the university’s cause of action against Fenn, coupled with Fenn’s purpose of delaying Yale’s cause of action form the basis for the finding of a fraudulent concealment tolling. The reasoning and factual basis of Fenn is not analogous to this case. Stamford/Hines had no contractual duty to inform Ms. Sherwood. Unlike Fenn, there was no evidence offered of Ms. Sherwood inquiring of Stamford/Hines and receiving dishonest and/or deceptive answers.
Though Dr. Hines and Ms. Sherwood may’ve had a fiduciary relationship governing their physician-patient relationship during that relationship, plaintiff offers no binding precedent requiring Stamford to report to Ms. Sherwood after the physician-patient relationship terminated in December 2007. Unlike Fenn, Stamford had no obligation to affirmatively contact Ms. Sherwood- and the parties had no contact after December 2007- and Stamford, unlike Fenn, did not intentionally deceive Ms. Sherwood of the facts Stamford knew Ms. Sherwood needed to support a cause of action against Stamford for the purpose of delaying Ms. Sherwood’s filing of suit.
Ms. Sherwood argues Stamford, prior to the implant surgery, concealed: 1) the lack of any data regarding Prolift kit; 2) the lack of long-term data regarding the Prolift kit; 3) a 2006 study of mesh product implant patients, co-authored by Dr. Hines, included a finding of 27% of patients reported dyspareunia; and 4) Dr. Hines’ financial relationship with Johnson & Johnson associated with the polypropylene vaginal mesh products.
EN 300, p. 8.
Ms. Sherwood offers no competent evidence supporting Stamford/Hines’ duty to disclose this information, that Stamford/Hines knew the alleged facts were necessary support for Ms. Sherwood’s suit against Stamford/Hines, or that Stamford/Hines’ failure to provide Ms. Sherwood with the alleged facts was for the purpose of delaying Ms. Sherwood’s suit against Stamford/Hines.
After the severance of the patient-physician relationship Ms. Sherwood argues Stamford concealed: 1) Dr. Kuwla’s conclusions in 2008 of a lack of risk-benefit information on the Prolift after studying Dr. Hines’ patients at Stamford Hospital, 2) the 2008 FDA Public Health Notification regarding pelvic mesh products, 3) Dr. Hines’ conclusions in early 2009 that the Prolift was unsafe for women, 4) the 2011 FDA Update, and 5) the removal of the Prolift from the market in 2012.
Clearly items 1, 2, 4, are publications available to the public and item 5 is not information held solely by Dr. Hines- but public knowledge. Ms. Sherwood presented no evidence that Stamford had to affirmatively provide her this information, concealed this information from her, concealed this information knowing that Ms. Sherwood needed these facts to prosecute a cause of action against Stamford and concealed these facts for the purpose of delaying Ms. Sherwood’s lawsuit.
Item 3 is Dr. Hines’ change of opinion about the safety of the Prolift kit product. Ms. Sherwood presents no evidence that Stamford/Hines had to affirmatively provide her this information, concealed this information from her, concealed this information knowing that Ms. Sherwood needed these facts to prosecute a cause of action against Stamford and concealed these facts for the purpose of delaying Ms. Sherwood’s lawsuit.
" While we continue to adhere to the general. principle " that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions"; United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 376, 260 A.2d 596 (1969); Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); it remains, nevertheless, incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists. Multi-Service Contractors, Inc. v. Vernon, 193 Conn. 446, 452, 477 A.2d 653 (1984). In this case, the plaintiff has simply failed to establish any such factual predicate concerning the defendant’s alleged fraudulent concealment." Connell v. Colwell, 214 Conn. 242, 251 (1990).
HOLDING
Summary judgment enters for Stamford on First Count as there is no genuine issue of material fact and Stamford is entitled to judgment as a matter of law, Stamford is not a " product seller" as defined by the CPLA.
Summary judgment enters for Stamford on the Second through Eleventh Counts, inclusive, as there is no genuine issue of material fact and Stamford is entitled to judgment as a matter of law as the statute of repose bars enforcement of the causes of action.
Summary judgment, consistent with the above rulings, enters regarding Greg Hoelscher’s derivative claims for loss of consortium.
(a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.
(b) Persons entitled to bring an action under subsection (a) of this section may, pursuant to rules established by the judges of the Superior Court, bring a class action on behalf of themselves and other persons similarly situated who are residents of this state or injured in this state to recover damages.
(c) Upon commencement of any action brought under subsection (a) of this section, the plaintiff shall mail a copy of the complaint to the Attorney General and the Commissioner of Consumer Protection and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the Attorney General and the Commissioner of Consumer Protection.
(d) In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of, recovery. In a class action in which there is no monetary recovery, but other relief is granted on behalf of a class, the court may award, to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorneys fees. In any action brought under this section, the court may, in its discretion, order, in addition to damages or in lieu of damages, injunctive or other equitable relief.
(e) Any final order issued by the Department of Consumer Protection and any permanent injunction, final judgment or final order of the court made under section 42-110d, 42-110m, 42-110 o or 42-110p shall be prima facie evidence in an action brought under this section that the respondent or defendant used or employed a method, act or practice prohibited by section 42-110b, provided this section shall not apply to consent orders or judgments entered before any testimony has been taken.
(f) An action under this section may not be brought more than three years after the occurrence of a violation of this chapter .
(g) In any action brought by a person under this section there shall be a right to a jury trial except with respect to the award of punitive damages under subsection (a) of this section or the award of costs, reasonable attorneys fees and injunctive or other equitable relief under subsection (d) of this section.
(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued . By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
(3) Where an action commenced within the time limited by subsection (1) is so terminated as to leave available a remedy by another action for the same breach such other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute.
(4) This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action which have accrued before October 1, 1961.