Opinion
No. CV 07-60001429 S
November 21, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE (Motion #119.00)
FACTS
On July 24, 2007, the plaintiffs, Mark Basso and Stephanie Basso, filed an eight-count complaint against the defendants Boston Scientific Corporation (Boston Scientific) and Greenwich Hospital (the hospital). The complaint alleges product liability claims against Boston Scientific (counts one and two) and the hospital (counts three and four), as well as intentional and negligent spoliation of evidence. The intentional spoliation of evidence claims are located in counts five and six, and the negligent spoliation of evidence claims are found in counts seven and eight. The plaintiff's wife has also pleaded facts attempting to establish a cause of action for loss of consortium in counts six and eight.
Since Mark Basso is the plaintiff who underwent surgery in this matter, his wife, Stephanie Basso's claims are all derivative. Consequently, for clarity, Mark Basso will be known as "the plaintiff" and Stephanie Basso as "the plaintiff's wife."
By memorandum of decision dated October 6, 2008, the court has already denied the hospital's motion to strike count five for intentional spoliation of evidence.
This matter arises out of the events surrounding an allegedly unsuccessful cystourethroscopy and laser lithortripsy procedure performed on the plaintiff at the hospital. The operation involved using a device known as a Bagley Helical Basket (basket), which was manufactured by Boston Scientific, to remove portions of a kidney stone from the plaintiff's ureter. During the procedure, a portion of the basket broke inside the plaintiff, and the surgeon incised and traumatized the plaintiff's ureter while removing the basket. In counts three and four, the plaintiff alleges that the hospital was engaged in the sale of medical products such as the basket used during his surgery, that the hospital made a profit when it sold the basket to the plaintiff and that the basket was in an unreasonably dangerous condition when the surgeon used it.
Counts five through eight further allege that following the incident, the plaintiff's surgeon turned over the basket to the hospital and reported the incident to Margaret Towner, who is the hospital's director of risk management. The plaintiff's wife proceeded to notify Towner of the plaintiff's injuries, and asked the hospital to maintain possession and preserve the basket. Towner agreed to this request. Nevertheless, the plaintiff alleges that the hospital either lost or intentionally destroyed the basket, even though it had knowledge of impending litigation. As a result of the missing basket, the plaintiff contends that he is unable to prove his product liability claim against both defendants.
On January 8, 2008, the hospital filed a motion to strike counts three through eight of the complaint. The hospital has filed a memorandum of law in support of its motion. On September 19, 2008, the plaintiff filed a memorandum of law in opposition. By request of the court, the hospital filed an additional reply memorandum on October 6, 2008, and the plaintiff also filed a reply memorandum on October 21, 2008. This matter was heard at short calendar on November 10, 2008.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Consequently, "[t]he proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gutlack v. Gutlack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993), citing Practice Book § 10-39. In a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Therefore, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Homgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). Indeed, "in determining the sufficiency of a complaint challenged by a defendant's motion to strike . . . pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). Consequently, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). Finally, "[a] motion to strike is the proper procedural vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Rich v. Foye, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 06 5003443 (August 28, 2006, Cremins, J.) (44 Conn. L. Rptr. 184, 186).
I. PRODUCT LIABILITY
In its memorandum of law, the hospital argues that counts three and four in product liability must be stricken because, as a matter of law, hospitals are not product sellers, and therefore cannot be subject to liability under Connecticut's Product Liability Act. In response, the plaintiff states that it is inappropriate for the court to decide whether this particular hospital is a product seller on a motion to strike, and that such a determination is better made at the summary judgment stage.
In Connecticut, a "product liability claim includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product." (Internal quotation marks omitted.) General Statutes § 52-572m(b). "A product liability claim . . . may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product." General Statutes § 52-572n(a). This statutory language makes clear that in order for a defendant to be held liable under a product liability theory, it must be engaged in the business of selling products. Giglio v. Connecticut Light Power Co., 180 Conn. 230, 234, 429 A.2d 486 (1980). A "product seller" is statutorily defined as "any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products where the sale is for resale or for use or consumption. The term `product seller' also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products." General Statutes § 52-572m(a). According to the Connecticut Supreme Court, in addition to demonstrating that the defendant was a "product seller," a successful product liability plaintiff must prove that "(2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of sale; and (5) the product was expected to reach . . . the consumer without substantial change in the condition." Giglio v. Connecticut Light Power Co., supra, 234.
The plaintiff has adequately pleaded all of these elements in his complaint. In count three, the plaintiff directly alleges that the hospital was engaged in the business of selling medical devices such as the basket, that the basket "was in a defective and unreasonably dangerous condition when it was used" on the plaintiff, that the "defective and dangerous condition of [the basket] existed at the time the device was provided and sold by [the hospital]," that the basket "was expected to and did reach [the plaintiff] without substantial change in condition," and that the malfunction of the basket caused the plaintiff's injuries.
Despite this facially adequate pleading, the hospital argues that its motion to strike must be granted because hospitals are not "product sellers" under Connecticut law. In support of this position, the hospital cites a litany of cases in its memorandum of law in support of its motion to strike and reply memorandum. A close examination of these cases, however, reveals that the hospital has not cited any authority that establishes that a hospital cannot be a product seller per se. The two appellate cases upon which the hospital relies can be distinguished from the present matter. In Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 528 A.2d 805 (1987), the Connecticut Supreme Court did hold that the plaintiff could not succeed on a claim for strict liability in tort against the defendant hospital, but only because the "product" at issue in that case, blood, is statutorily excluded from being covered by the implied warranties of merchantability and fitness under General Statutes § 19a-280. No similar statute specifically exempts the product at issue in this case. Similarly, the hospital points to Zbras v. St. Vincent's Medical Center, 91 Conn.App. 289, 880 A.2d 999 (2005), cert. denied, 276 Conn. 910, 886 A.2d 424, where the Appellate Court upheld a trial court's decision that the defendant hospital was not engaged in the business of selling products. In Zbras, however, the Appellate Court simply agreed with the lower court's determination, at the summary judgment stage, that the hospital in that particular case was not a product seller. While it is true that the hospital has brought forth many additional Superior Court cases where the court held that a hospital was not a product seller, the majority of these decisions were on summary judgment, where the court had the ability to look at all of the facts surrounding the defendant hospital's operation. Indeed, the hospital has only cited one case where a court held that a hospital was not a product seller on a motion to strike, and in that case the product was a knife blade used during surgery. Saccone v. Staub, Superior Court, judicial district of Fairfield, Docket No. 221737 (April 10, 1986, Mihalakos, J.) (1 C.S.C.R. 230). In Saccone, unlike the present matter, the court does not mention any allegation made by the plaintiff that the hospital was engaged in the business of selling knife blades to its patients, or even that it sold the knife blade used in surgery to the plaintiff.
On the other hand, at least three Superior Court judges have allowed a plaintiff to survive a motion to strike in a lawsuit against a hospital so long as the plaintiff has properly pleaded the elements of a product liability claim. See Skerritt v. Sandoz Nutrition Corp., Superior Court, judicial district of New Haven, Docket No. 305253 (June 28, 1991, Schimelman, J.).(4 Conn. L. Rptr. 691); Miller v. Pharmacia Labs, Superior Court, judicial district of Fairfield, Docket No. 238538 (August 24, 1988, Jacobson, J.) (3 C.S.C.R. 773); Taylor v. Staub, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 83 0014120 (September 2, 1986, Kulawiz, J.) (1 C.S.C.R. 727). The procedural distinction between a motion to strike and a motion for summary was noted by Judge Silbert when he discussed these three cases. He wrote that "[i]t is important to recognize, however, that . . . the matter before each of those courts was a motion to strike, in which the sole inquiry was whether the plaintiff had stated a cause of action by pleading that the defendant hospital was a `product seller.'" Herrick v. Middlesex Hospital, Superior Court, judicial district of Middlesex, Docket No. CV 03 0100932 (June 27, 2005, Silbert, J.) (39 Conn. L. Rptr. 624). Since on a motion to strike a plaintiff is only required to plead all of the elements of a particular cause of action, and the hospital has not provided any authority that establishes that a hospital cannot be a "product seller" as a matter of law, it would be inappropriate to terminate this case at the motion to strike stage. Following discovery, it is possible that the plaintiff would be able to bring forth evidence establishing that this particular hospital was engaged in the practice of selling medical products such as the basket. If the plaintiff fails to make such a showing, this issue can be revisited on a motion for summary judgment, after all of the facts have been determined. Consequently, the hospital's motion to strike counts three and four is hereby denied.
II. NEGLIGENT SPOLIATION OF EVIDENCE
The hospital also moves to strike counts seven and eight on the grounds that Connecticut does not recognize the tort of negligent spoliation of evidence. Although at least two Superior Court judges have ruled that a plaintiff cannot proceed on a claim for negligent spoliation of evidence, see Reilly v. D'Errico, Superior Court, judicial district of New Haven, Docket No. CV 93 0346095 (September 22, 1994, Hartmere, J.) [12 Conn. L. Rptr. 457]; Regency Coachworks, Inc. v. General Motors Corp., Superior Court, judicial district of Hartford, Docket No. CV 95 554389 (June 26, 1996, Wagner, J.) [17 Conn. L. Rptr. 245], no appellate court has directly addressed the issue. Nevertheless, the Connecticut Supreme Court has recently ruled that intentional spoliation of evidence is a cognizable claim in this state. Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165 (2006). Since the previously cited Superior Court cases were both decided before Rizzuto, they are of limited value in assisting this court to determine whether our Supreme Court would now recognize the tort of negligent spoliation of evidence. In Rizzuto, the Supreme Court did not reach the issue of whether a plaintiff could state a claim for negligent spoliation of evidence, but did affirmatively cite the following language from a case from the Sixth Circuit Court of Appeals, Welsh v. United States, 844 F.2d 1239, 1248 (6th Cir. 1988): "When, as here, a plaintiff is unable to prove an essential element of her case due to the negligent loss or destruction of evidence by an opposing party, and the proof would otherwise be sufficient to survive a directed verdict, it is proper for the trial court to create a rebuttable presumption that establishes the missing elements of the plaintiff's case that could only have been proved by the availability of the missing evidence." This cited passage in Rizzuto indicates that, at the very least, the Supreme Court was willing to provide a remedy for victims of negligent spoliation of evidence.
Notably, the Second Circuit Court of Appeals has held that a party seeking an adverse inference instruction due to the destruction of evidence can satisfy the "culpable state of mind" element "by a showing that the evidence was destroyed knowingly, even if without intent to [breach a duty to preserve it], or negligently." (Emphasis in original; internal quotation marks omitted.) Residential Funding Corp. v. DeGeorge Financial, 306 F.3d 99, 108 (2nd Cir. 2002). Similarly, other jurisdictions have recognized a cause of action for negligent spoliation of evidence. See, e.g., Velasco v. Commercial Bldg. Maintenance Co., 169 Cal.App.3d 874, 215 Cal.Rptr. 504 (1985); Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998); Boyd v. Travelers Insurance Co., 166 Ill.2d 188, 652 N.E.2d 267 (1995); Oliver v. Stimson Lumber Co., 297 Mont. 336, 993 P.2d 11 (1999). In approving the existence of a cause of action for negligent spoliation of evidence, the Illinois Supreme Court wrote that "[c]ourts have long afforded redress for the destruction of evidence and, in our opinion, traditional remedies adequately address the problem presented in this case. An action for negligent spoliation can be stated under existing negligence law without creating a new tort . . . To state a cause of action for negligence, a plaintiff must plead the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, an injury proximately caused by the breach, and damages . . . The general rule is that there is no duty to preserve evidence; however, a duty to preserve evidence may arise through an agreement, a contract, a statute . . . or another special circumstance. Moreover, a defendant may voluntarily assume a duty by affirmative conduct . . . In any of the foregoing instances, a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant's position should have foreseen that the evidence was material to a potential civil action." (Citations omitted.) Boyd v. Travelers Insurance Co., supra, 194-95.
Given the fact that our Supreme Court has recently endorsed claims for intentional spoliation of evidence, with quoted language from a negligent spoliation case, as well as the case law supporting negligent spoliation claims from other jurisdictions, this court is willing to allow the negligent spoliation cause of action to continue so long as the plaintiff has properly pleaded the tort's elements. Counts seven and eight of the complaint allege that the plaintiff's wife spoke with the hospital's director of risk management, Margaret Towner, following the plaintiff's surgery and advised her of the incident. The plaintiff's wife then requested that the hospital retain possession of the basket used during the operation. Towner agreed to maintain possession of the basket and assured the plaintiff's wife that it would be safely kept. The hospital has subsequently failed to produce the basket for inspection, and therefore the plaintiff contends that he is unable to establish a product liability claim against either Boston Scientific or the hospital. This court finds that the plaintiff has properly pleaded that the hospital had knowledge of potential impending litigation and voluntarily assumed a duty of care when the hospital's employee agreed to safeguard the basket. Accordingly, the hospital's motion to strike counts seven and eight is denied.
III. LOSS OF CONSORTIUM
Finally, the hospital has moved to strike counts six and eight, where the plaintiff's wife has pleaded claims for loss of consortium. The hospital argues that the plaintiff's wife cannot succeed on counts six and eight because her "inability to pursue a products claim," as a result of the hospital's alleged intentional or negligent spoliation of evidence, is not the type of personal injury upon which loss of consortium can be based. In response, the plaintiff's wife contends that the hospital's characterization of her loss of consortium claim is overly narrow, and that the hospital's alleged spoliation of evidence is actually keeping her from seeking loss of consortium damages under the Product Liability Act.
Under Connecticut law, "[t]he term consortium is usually defined as encompassing the services of the [spouse], the financial support of the [spouse], and the variety of intangible relations which exist between spouses living together in marriage . . . These intangible elements are generally described in terms of affection, society, companionship and sexual relations . . . These intangibles have also been defined as the constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage." (Internal quotation marks omitted.) Berry v. Zanauskas, 81 Conn.App. 586, 592-93, 841 A.2d 282 (2004). A cause of action for loss of consortium is "derivative and inextricably attached to the claim of the injured spouse." (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 380, 773 A.2d 906 (2001). Since it is derivative in nature, a loss of consortium claim is barred when the injured spouse cannot succeed on the underlying claim. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 199, 592 A.2d 912 (1991). Finally, our Supreme Court has expressly held that the spouse of an injured plaintiff has the right to bring a claim for loss of consortium under Connecticut's Product Liability Act. Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 627 A.2d 1288 (1993).
In counts six and eight of the complaint, the plaintiff's wife alleges that "[a]s a result of the injuries to [the plaintiff] as described above, [the plaintiff's wife] has, and in the future will be deprived of the companionship, dependence, society, affection, sharing, aid, support and consortium of her husband." The hospital's memorandum of law and reply memorandum suggest that the only injury that the plaintiff has suffered due to the alleged spoliation is economic harm resulting from inability to bring a potentially lucrative lawsuit. Despite this contention, counts six and eight both specifically incorporate all of the complaint's previous allegations, which include the product liability claims. Therefore, it can be seen that counts six and eight also allege that the plaintiff's wife suffered a loss of consortium as a result of the malfunction of the subject basket. Since a loss of consortium claim is derivative, the plaintiff's wife will be unable to prevail if her husband will not be able to prove his product liability cause of action due to the alleged spoliation by the hospital. As spoliation of evidence could keep the plaintiff from proving his underlying claim, and in turn prevent the plaintiff's wife from recovering for loss consortium, the court denies the hospital's motion to strike counts six and eight.
CONCLUSION
For the above stated reasons, the hospital's motion to strike counts three through eight of the plaintiff's complaint is denied.