Opinion
No. CV044001615S.
November 24, 2006.
MEMORANDUM OF DECISION
FACTS
On July 20, 2006, the plaintiffs, Maria Silva and her daughter, Michelle Silva, filed a four-count amended complaint against the defendants, Walgreen Company, Walgreen Eastern Company, Inc., and Walgreen New England Company. This action arises out of injuries and losses that the plaintiffs allegedly sustained when a pharmacy owned by the defendants provided Maria Silva with the wrong prescription medication, and she took one tablet of the medication.
The plaintiffs filed the amended complaint after the defendants filed their motion for summary judgment. Nevertheless, the defendants' failure to object to the plaintiffs' amended complaint constitutes their consent. Practice Book § 10-60. In any event there are no substantive differences between the amended complaint filed on July 20, 2006, and the previous amended complaint filed on June 22, 2005, except that the plaintiffs indicate that counts one and two are pleaded as alternatives to count four.
In the first and second counts of the complaint, which are pleaded as alternatives to count four, Maria Silva alleges claims for negligence and negligent infliction of emotional distress, respectively, against the defendants. In the third count, Michelle Silva, by and through her mother, Maria Silva, alleges a claim for bystander emotional distress arising from her contemporaneous sensory perception of the immediate injury to her mother due to the defendants' negligence.
Finally, in count four, Maria Silva alleges that the defendants violated the Connecticut Product Liability Act, General Statutes § 52-572m et seq.
Previously, the defendants filed a motion to strike count four on the ground that they cannot be held liable under the Product Liability Act because a pharmacy does not qualify as a product seller under the act. According to the defendants, a pharmacy, in filling a prescription, is primarily engaged in providing a service to the consumer, and not in selling the product. The plaintiffs objected asserting that the defendants are product sellers under the act because the principal part of the transaction between the parties was the sale of the medication and not the provision of services.
On October 25, 2005, the court, (Radcliffe, J.), denied the motion. According to the court, the plaintiffs had pleaded sufficient facts to support a cause of action under that act in that the facts, as pleaded, indicated that the essence of the relationship between Maria Silva and the defendants was that of buyer and product seller. The defendants then filed an answer in which they deny the material allegations of the complaint, and state, inter alia, that they do not have sufficient information or knowledge to determine whether they were engaged in the distribution or retail selling of the prescription medicine that was given to Maria Silva.
On June 21, 2006, the defendants filed a motion for summary judgment as to counts one, two and three on the ground that the Connecticut Product Liability Act is the exclusive remedy for product liability claims. Their motion was accompanied by a memorandum of law. On July 20, 2006, the plaintiffs filed an objection to the motion with an accompanying memorandum of law. The parties did not submit any affidavits or other documents in support of their respective positions on the motion.
DISCUSSION
"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." (Internal quotation marks omitted.) Colangelo v. Heckelman, 279 Conn. 177, 182, 900 A.2d 1266 (2006). "The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006).
The defendants' motion for summary judgment is premised solely on their contention that because Maria Silva alleges a claim against them under the Product Liability Act in count four, and the act is the plaintiffs' exclusive remedy for claims falling within the scope of the statute, the plaintiffs other common-law claims are barred as a matter of law. They do not ask the court to determine whether they are product sellers under the Product Liability Act or whether they are liable to the plaintiffs under the act nor do they or the plaintiffs present any evidence as to either of these issues. Regarding counts one and two, the plaintiffs counter that Connecticut permits plaintiffs to plead alternative causes of action even when a statute provides the exclusive remedy for injuries falling within its scope. The plaintiffs acknowledge that Maria Silva cannot recover under theories of both negligence and product liability. They maintain, however, that the issue of whether the defendants are product sellers is a question of fact that cannot be properly resolved in the context of the defendants' motion for summary judgment. As to count three, the plaintiffs assert that Michelle Silva's claim for bystander emotional distress is separate from Maria Silva's claims and pertains to injuries to a third party. They argue that third party injuries do not fall within the scope of the Product Liability Act.
Section 52-572n(a) provides that "[a] product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572r, inclusive, and 52-577a 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." (Emphasis added.) In Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 471, 562 A.2d 517 (1989), the Supreme Court decided that in enacting the statute, "[t]he legislature clearly intended to make our products liability act an exclusive remedy for claims falling within its scope." "It is now beyond dispute that this provision provides the exclusive remedy for a claim falling within its scope, thereby denying a claimant the option of bringing common law causes of action for the same claim." (Internal quotation marks omitted.) Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 800, 756 A.2d 237 (2000).
At the same time, however, the Connecticut Supreme Court has held that "[t]o maintain a product liability action under § 52-572m et seq., the plaintiff must establish and prove, inter alia, that .º.º. the defendant was engaged in the business of selling the product .º.º. 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." (Citations omitted; emphasis in the original; internal quotation marks omitted.) Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987).
"Since the statute provides only that it is the exclusive remedy for 'claims against product sellers'; General Statutes § 52-572n(a); we conclude that the statute does not foreclose common law claims against those who are not product sellers .º.º." Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 73, 579 A.2d 26 (2005).
General Statues § 52-572m(a) defines the term "product seller" as, CT Page 21706 inter alia, "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 .º.º." As at least one judge of the Superior Court has noted, "[a] . . . difficult issue is presented by a hybrid sales-service transaction." Wallace v. Gerard Medical, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0274660 (April 7, 2003, Wiese, J.) ( 34 Conn. L. Rptr. 464, 465).
In addressing this issue in Truglio v. Hayes, 66 Conn.App. 681, 685, 785 A.2d 1153 (2001), the Appellate Court noted that, "[b]ecause the legislature, in § 52-572m(a), adopted verbatim the language of § 102(1) [of the Draft Uniform Product Liability Law, 44 Fed. Reg. 2996, 2997-98 (1979)], we look to the commentary to § 102(1) of the draft act for guidance .º.º. The commentary .º.º. provides in relevant part: 'The Act does not address several definitional problem of "product seller." First, it does not address the problem of the product seller engaged in a service .º.º. It is suggested that a party be considered a product seller where a sale of a product is a principal part of the transaction and where the essence of the relationship between the buyer and seller is not the furnishing of professional skill or services.' .º.º. 44 Fed. Reg. 3003." (Emphasis in original.) The Appellate Court then examined the affidavits and other evidence before it and concluded that the defendant, a construction company, was entitled to summary judgment on the plaintiffs' product liability claim because the evidence disclosed that "essence of the relationship between the defendant and the buyer was the furnishing of a service, not the sale of a product .º.º." Truglio v. Hayes, supra, 66 Conn.App. 685.
The commentary of the draft act, as well as the Appellate Court's application of it in Truglio v. Hayes suggests that, as several judges of the Superior Court have stated, "the court may deny a motion for summary judgment when the object of a hybrid transaction raises factual issues .º.º." (Internal quotation marks omitted.) Plas-Pak Industries v. Prime Electric, LLC, Superior Court, judicial district of New London, Docket No. CV 03 0566178 (June 19, 2006, Jones, J.); see also, Travelers Property Casualty v. Ducci Electrical Contractors, Superior Court, judicial district of Litchfield, Docket No. CV 98 0075903 (November 8, 2000, Matasavage, J.); and In re Bridgeport Asbestos Litigation, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. (June 24, 1998, Thim, J.) ( 22 Conn. L. Rptr. 391).
The Connecticut appellate courts have not addressed the question of whether a pharmacy is a service provider, or can be deemed to be a product seller under the Product Liability Act. The judges of the Superior Court have reached different conclusions when examining the issue in the context of motions to strike. For example, in Altieri v. CVS Pharmacy, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 020171626 (December 13, 2002, McWeeny, J.) ( 33 Conn. L. Rptr. 524, 526), the court granted a pharmacy's motion to strike the plaintiff's product liability claim, which, like the present case, was premised on allegations that the pharmacy misfilled a prescription, on the ground that the pharmacy was "engaged in a service when filling a prescription." The court relied on the following rationale, as set out in Murphy v. E.R. Squibb Sons, Inc., 40 Cal.3d 672, 678-79, 710 P.2d 247, 221 Cal. Rptr. 447 (1985): "[T]he pharmacist is engaged in a hybrid enterprise, combining the performance of services and the sale of prescription drugs. It is pure hyperbole to suggest .º.º. that the role of a pharmacist is similar to that of a clerk in an ordinary retail store. With a few exceptions, only a licensed pharmacist may dispense prescription drugs, and .º.º. there are stringent educational and professional requirements for obtaining and retaining a license. A pharmacist must not only use skill and care in accurately filling and labeling a prescribed drug, but he must be aware of problems regarding the medication, and on occasion he provides doctors as well as patients with advice regarding such problems. In counseling patients, he imparts the same kind of information as would a medical doctor would about the effects of the drugs prescribed. A key factor is that the pharmacist who fills a prescription is in a different position from the ordinary retailer because he cannot offer a prescription for sale except by order of the doctor. In this respect, he is providing a service to the doctor in acting as an extension to the doctor in the same sense as a technician who takes an x-ray or analyzes a blood sample on a doctor's order." See also Silber v. Walgreen Co., Superior Court, judicial district of New Haven, Docket No. CV 04 4009662 (May 4, 2005, Thompson, J.) ( 39 Conn. L. Rptr. 271, 272) (court granted pharmacy's motion to strike product liability claim premised on misfilled prescription on ground that claim "relates to the service provided rather than defect in the medication.")
In contrast, in Stanko v. Bader, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No, CV 03 0193669 (October 7, 2003, D'Andrea, J.) ( 35 Conn. L. Rptr. 605, 606), the court denied the pharmacy's motion to strike a product liability claim that was also premised on a misfilled prescription. The court noted that, "[o]n its face, [the definition of product seller in § 52-572m] encompasses the defendant's retail pharmacy business because the defendant's business involves retail sales of prescription medication to consumers." Id. Although the court acknowledged that in Altieri v. CVS Pharmacy, Inc., supra, the court decided that the pharmacy was primarily furnishing a service and thus not subject to the product liability act, it found that decision "unpersuasive" for two reasons.
First, it was premised on a case, i.e., Murphy v. E.R. Squibb Sons, Inc., supra, 40 Cal.3d 672, "that specifically excluded from its holding cases involving pharmacies that fail to exercise due care." Stanko v. Bader, supra, 35 Conn. L. Rptr. 606. Second, the court noted that in Truglio v. Hayes Construction Co., supra, 66 Conn.App. 684, the Appellate Court relied on language that "suggested that 'a party be considered a product seller where a sale of a product is the principal part of the transaction and where the essence of the relationship between the buyer and seller in not the furnishing of professional skill or services.'º" (Emphasis in original.) Stanko v. Bader, supra, 35 Conn. L. Rptr. 606. Applying this rationale, the court noted that in the case before it, "the plaintiff went to the pharmacy to purchase a prescription drug and nothing more. Although the filling of a prescription may involve some service, such as checking for conflicts in medication, it seems clear that the plaintiff primarily expected to receive . . . a drug prescribed by his doctor. This court finds that the defendant pharmacy is a 'product seller' under the CPLA, because the principal part of the transaction was the sale of medication." Id.
In the present case, the defendants have failed to meet their burden of demonstrating that there is no genuine issue as to any material fact. In order to prevail on their motion, the defendants must, as a preliminary matter, show that they are "product sellers" as that term is used in the statute. For, if the defendants are not "product sellers," the plaintiffs' common-law claims against them would not fall within the scope of the act. Here, neither party has presented any evidence on the question of whether the defendants are "product sellers" or service providers. Moreover, there is no appellate authority upon which the court can rely to categorize pharmacies or pharmacists as either "product sellers" or service providers.
Indeed, the defendants do not admit in their answer that they are "product sellers."
Although this issue is a question of law to be decided by the court, it must, in the context of a motion for summary judgment, be decided on the basis of undisputed facts regarding the nature of the defendants' relationship to Maria Silva and to the transaction at issue. See Zichichi v. Middlesex Memorial Hospital, supra, 204 Conn. 403. The record in this case is insufficient, however, for the court to make such a determination. Therefore, the defendants' motion for summary judgment should be denied as to counts one and two. Similarly, the defendants have not met their burden as to count three. In their memorandum, the defendants fail to articulate why Michelle Silva's bystander emotional distress claim falls within the scope of the Products Liability Act. Instead, they appear to argue that the mere presence of Maria Silva's product liability claim in the complaint precludes Michelle Silva's common law claim. The record is insufficient for the court to determine whether Michelle Silva's bystander distress claim falls within the scope of act. Accordingly, the defendants' motion as to count three is denied.