Summary
collecting three cases in which the Connecticut Superior Court denied motions to strike CPLA claims where plaintiff pled that the defendant hospital was a “product seller”
Summary of this case from Gallinari v. KlothOpinion
No. CV 03-0100932
June 27, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The plaintiff in this action seeks damages from the defendants, Middlesex Hospital, Howmedica, Inc., and Smith Nephew, Inc., as a result of injuries he alleges that he sustained after a rod (technically, a "Russell-Taylor femoral locking nail"), which had been inserted into his femur during surgery in 1999, broke the following year. The counts against each of the three defendants are based on claims that the defendants are "product sellers" under the Connecticut Products Liability Act, General Statutes § 52-572m et seq. (the "Act"). The defendant, Middlesex Hospital, has now moved for summary judgment, contending that the undisputed facts demonstrate that, as a matter of law, it is not a "product seller" within the meaning of the Act and that it is therefore entitled to a judgment in its favor as to the first count of the complaint, in which it is named as the defendant.
Under Connecticut law, 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." General Statutes § 52-572m(b). Pursuant to General Statutes § 52-572m(a), however, product liability claims may only be asserted against "product sellers." Hines v. JMJ Construction Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 506329, (January 11, 1993, Miano, J.) ( 8 Conn. L. Rptr. 232), citing Regal Steel, Inc. v. Farmington Ready Mix, Inc., 36 Conn.Sup. 137, 139 (Super.Ct. 1980). Thus, to recover under the Act, a plaintiff must prove that the defendant was engaged in the business of selling the product. Giglio v. Connecticut Light Power Co., 180 Conn. 230, 234, 429 A.2d 486 (1980). "Whether [a] defendant is a `product seller' for purposes of the Product Liability Act is a matter of law for the court to determine." Hines v. JMJ Construction Co., supra, citing Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 72, 579 A.2d 26 (1990). See also Arroyo v. UBE Industries America, Inc., Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 449078 (April 13, 1993, Langenbach, J.) ( 9 Conn. L. Rptr. 25).
The Hospital and the plaintiff agree that there is no genuine issue as to any of the following material facts. The Hospital provided the "Russell-Taylor femoral locking nail" exclusively for the purpose of its insertion into the plaintiff during a surgical procedure that took place at the hospital. The surgery that was performed at the Hospital on April 25, 1999 included the insertion of this device, which was used for the purpose of the intra-medullary rodding of the plaintiff's right femur. At all times relevant to this action, the Hospital did not keep an unlimited supply of the rods in stock. Instead, a manufacturer's representative left one rod in each of the available sizes at the Hospital on a "consignment" basis. An orthopedic physician requiring such a device would advise the Hospital's supply department the day before the surgery to assure its availability. The manufacturer's representative would replenish the item after its surgical placement in the patient. The Hospital neither marketed, advertised nor solicited the sale of these devices, nor did it participate in their research, development or manufacture. The rod could not be purchased by a patient directly from the Hospital but would only be supplied to the patient's physician in connection with a surgery to be performed there.
"Pursuant to Practice Book § 384, 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." Scinto v. Stamm, 224 Conn. 524, 530, 620 A.2d 99, cert. denied, U.S., 114 S.Ct. 176, 126 L.Ed.2d 136 (1993). "A `material' fact . . . [i]s a fact which will make a difference in the result of the case." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). "The test is whether a party would be entitled to a directed verdict on the same facts." State v. Goggin, 208 Conn. 606, 616, 546 A.2d 250 (1988). "Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Burns v. Hartford Hospital, 192 Conn. 451, 344, 472 A.2d 1257 (1984). "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." Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). "It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. `Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380.'" Burns v. Hartford Hospital, supra, 192 Conn. 455, quoting Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 12, 459 A.2d 114 (1983).
No appellate court in Connecticut has specifically addressed the issue of whether a hospital can be deemed a "product seller" under the Act. The defendant, however, and indeed most of the judges of the Superior Court who have adopted the defendant's point of view in earlier cases, rely for much, although not all, of their support on Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403-05, 528 A.2d 805 (1987), which ruled that, because the provision of blood is a medical service rather than a `sale' of a product, the Act does not apply. The Zichichi court went on to hold that "[o]nce 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."
Smith v. Sarns, Inc. et al, Civil Action No. N-87-93(EEB), U.S. District Court, District of Connecticut, however, has criticized reliance on Zichichi as a basis for finding that hospitals can not be product sellers under the Act. In Smith, the plaintiff suffered a stroke during an emergency procedure required when a catheter broke during coronary bypass surgery. The plaintiff sued, inter alia, Yale New Haven Hospital, under the Act, claiming that the hospital was a product seller. The Hospital moved to dismiss the statutory product liability claims, citing Zichichi and asserting that the plaintiff had failed to state a claim upon which relief could be granted pursuant to F.R.C.P. 12(b)6 because hospitals provide services, not products, and thus, could not be sued in strict product liability under § 52-572m(a). In recommending denial of the Motion to Dismiss, the U.S. Magistrate concluded that this was a misreading of Zichichi because General Statutes § 19a-280, the "blood shield" statute, which indicates that blood and its derivatives are to be considered "services," was the major factor in the Zichichi ruling. The lack of an analogous statute concerning catheters formed the basis for the Magistrate's rejection of the defendant's argument that providing the catheter constituted a service and his recommendation against granting the motion to dismiss.
Three Superior Court decisions appear to suggest that a hospital may be deemed a "product seller" under the Act. See, Skerritt v. Sandoz Nutrition Corp., 4 Conn. L. Rptr. 691, 6 CSCR 688 (1991) (Schimelman, J.), Miller v. Pharmacia Labs, 3 CSCR 773 (1988) (Jacobson, J.), and Taylor v. Staub, 1 CSCR 727 (1986) (Kulawiz, J.). It is important to recognize, however, that akin to the situation in Smith v. Sarns, Inc., supra, 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." These decisions, therefore, give this court little meaningful guidance.
Although the Act does not set forth a specific list of those persons or entities who should be considered product sellers, "[t]he legislative history of the Connecticut statute states that `the definition of product seller is taken verbatim from the draft uniform product liability law, U.S. Department of Commerce.'" Hines v. JMJ Construction Co., supra, quoting 22 S.Proc., Pt. 14, 1979 Sess., p. 4636. The model act expressly "excludes from its coverage the provider of professional services when a product is utilized or sold as part of the rendition of such services." Department of Commerce Model Uniform Product Liability Act § 102(A), quoted in Saccone v. Staub, 1 CSCR 230, 231 (1986) (Mihalakos, J.).
In contrast to the motion to strike cases, every case to date in which a hospital-defendant has challenged a complaint brought against it under the Act by means of a motion for summary judgment at the trial court level has been successful. Wallace v. Gerard Medical, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV00 0274660-S (Apr. 7, 2003, Wiese, J.) ( 34 Conn. L. Rptr. 464), concerned an injury allegedly suffered by the plaintiff when a defective "porta catheter" was surgically placed in him for the purpose of administering chemotherapy medication. The court concluded that the contract with the hospital was for services, not a product, and it granted summary judgment. In Zbras v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 95 0323593 (March 20, 2002, Rush, J.) ( 31 Conn. L. Rptr. 577), the court concluded that "hospitals are not engaged in the business of selling equipment utilized in operative procedures but rather are engaged in the business of providing medical services"). In Ferguson v. FBI Medical Systems, Superior Court, judicial district of New London. Docket No. 527663, (August 1, 1995, Hurley, J.) ( 15 Conn. L. Rptr. 94), a case similar to the present one, the plaintiff was injured because of a defective device known as a "wrist fixator" used in his wrist reduction surgery. This device was not kept in stock by the defendant hospital, but rather was ordered for use in the surgery upon the request of the surgeon. The court granted summary judgment, holding that the defendant hospital "was a provider of services of which the subject wrist fixators were an incidental part, rather than a `product seller' of such fixators under the [products liability act]." Id. In Krawiec v. Olympus Corporation of America, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 85 0420784 (June 15, 1988, Aronson, J.), the plaintiff underwent a procedure at the defendant hospital requiring the use of devices known as an endoscope and a share accessory. The plaintiff allegedly suffered injuries as a result of the malfunction of these devices. The court held that the defendant hospital "was a provider of services and not a product seller as defined by [General Statutes § 52-572m(a)]." In Lewis v. Hospital of St. Raphael, Superior Court, judicial district of New Haven, Docket No. 242951 (March 15, 1988, Flanagan, J.), the defendant hospital was found not liable under the Act where the plaintiff was injured because of a defective "fusion wire" used in surgery to his neck. In Uzar v. Browne, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 85 0077603 (September 22, 1987, Lewis, J.), the court concluded that the hospital was not a product seller under the product liability act in a case where the plaintiff was injured during surgery because of a defective drape. Saccone v. Staub, Superior Court, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 221737 (April 10, 1986, Mihalakos, J.), involved a motion to strike, rather than summary judgment. But the court nonetheless found in favor of the defendant on the ground that a hospital is not included in the definition of "product seller". See, also, Burke v. Planned Parenthood of Connecticut, Inc., Superior Court, judicial district of New London, Docket No. 082186 (August 20, 1987, Hurley, J.), which involved not a hospital but the provision by the defendant of allegedly defective birth control devices. The court concluded that the "defendant is a medical provider not subject to liability under the products liability statute"; and Altieri v. CVS Pharmacy, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 02 0171626 (December 13, 2002, McWeeny, J.) ( 33 Conn. L. Rptr. 524) (defendant was engaged in a service when filling a prescription, and therefore is not subject to the Act). In short, all trial courts to have addressed this issue on summary judgment have found as a matter of law that hospitals, as providers of medical services, rather than sellers of the products and equipment they furnish in the performance of their primary function of health care service, should be deemed exempt from liability under the Act.
Moreover, in a variety of other non-medical contexts, Connecticut courts have looked at the fundamental nature of what is being provided under the contract between the parties to determine whether the defendant was a product seller. In Truglio v. Hayes Construction Co., 66 Conn.App. 681, 684-85, 785 A.2d 1153 (2001), the court used the commentary of the Draft Uniform Products Liability Law for guidance as to the meaning of "product" and "product seller." The court favorably cited the suggestion in the commentary 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." Id., 685. In applying this standard, the court held that the construction of a sidewalk was the furnishing of a service, not the sale of a product. Id. See also Paul v. McPhee Electrical Contractors, 46 Conn.App. 18, 23, 698 A.2d 354 (1997) (defendant electrician was not a product seller where that electrician merely installed a light fixture and was not responsible for placing it into the stream of commerce).
Similar results are to be found at the trial court level. When the contract "is basically one for the rendition of services, and the materials are only incidental to the main purpose of the agreement, the contract is not one for the sale of goods . . ." Hines v. JMJ Construction Co., supra (a concrete subcontractor who designed, constructed, prepared, assembled, installed and/or placed a sidewalk did not place "goods" in the "stream of commerce" and, therefore, is not a "product seller" under the Act), quoting Gulash v. Stylarama, Inc., 33 Conn.Sup. 108, 111 (1975) (installation of a defective swimming pool is not a sale of goods under the Uniform Commercial Code), and citing Epstein v. Giannattasio, 25 Conn.Sup. 109, 114 (1963) (hair treatment by a beautician is not a sale of goods under the Uniform Commercial Code); Dumitrie v. Fernap, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 288824, (April 25, 1994, Pittman, J.) ( 11 Conn. L. Rptr. 449) (one in the business of constructing sidewalks is engaged in the performance of a service rather than a sale of a product under the Act); Eagen v. Harnischfeger Corp., 2 Conn. L. Rptr. 662 (1990) (Lewis, J.) (a general contractor is not a product seller within the meaning of the Act); Mount St. Joseph Academy Corp. v. Johnson Controls, Inc., 9 CLT No. 20, p. 13 (1982) (Hammer, J.) (action under the Act does not lie against architects and engineers who provide professional services, because said individuals are not responsible for placing defective products in the marketplace); Colangelo v. Norwalk YMCA, 2 CSCR 732 (1987) (Emmett, J.) (the Act does not encompass the professional services rendered by an architect to an individual customer).
In addition to these Superior Court cases, a leading torts treatise has observed: "Hospitals, medical doctors, and other professionals who provide health care services have not generally been held strictly liable even when, in the course of rendering health care services, defective products are transmitted. They are not regarded as the kind of enterprisers, akin to the producer of mass products, that can conveniently bear the costs of accidents attributable to defective things used and transmitted. Moreover, the principal thing bargained for is not the product transmitted but the professional services of the defendant." W. Prosser and W. Page Keeton, Prosser and Keeton on Torts, § 104, at 720 (5th Ed. 1984).
An admittedly less than exhaustive survey suggests that the majority of states which have considered this issue have adopted a similar approach to construing their own product liability legislation. See, e.g., Cafazzo v. Central Medical, 430 Pa.Super. 480, 635 A.2d 151 (1993) (neither physician nor hospital a "product seller" with respect to defective prosthetic device placed in plaintiff's jaw); Johnson v. Mountainside Hospital, 239 N.J.Super. 312, 571 A.2d 318 (App.Div. 1990), (for purposes of product liability law, a hospital cannot be held strictly liable for a latently defective product supplied to it by another for its use in rendering treatment); Murphy v. E.R. Squibb Sons, Inc., 40 Cal.3d 672, 677 (1985) (strict products liability law does not apply to services); Gagne v. Bertran, 43 Cal.2d 481, 487 (1954) (those who sell services not liable in absence of negligence or intentional misconduct); Pierson v. Sharp Memorial Hospital, Inc., 216 Cal.App.3d 340, 345 (1989) (law of negligence, not strict liability, governs services). See, also, Restatement 3d Torts, Products Liability, § 19, subd. (b) ("Services, even when provided commercially, are not products"). But see Dubin v. Michael Reese Hospital, 74 Ill.App.3d 932, 393 N.E.2d 588 (1979) ("we hold that the supply of X-radiation for absorption into a patient for treatment purposes by a hospital, for which a charge is made, places such hospital in the business of introducing such X-radiation in the stream of commerce").
Recognizing that the weight of at least trial court authority was solidly against him, the plaintiff conducted extensive discovery in an effort to establish that the facts of his case were sufficiently different from those of the Superior Court cases previously cited such that there are issues in genuine dispute concerning the hospital's status as an alleged product seller. The court has reviewed the voluminous documentation provided by the plaintiff, including depositions of the Director of Surgical Services from Middlesex Hospital, the Director of Budget and Reimbursement from Middlesex Hospital, and the Purchasing Manager from Middlesex Hospital, the plaintiff's own affidavit, and various bills, invoices and photographs which reference the rod in question. Despite the plaintiff's exhaustive efforts to distinguish his case from those previous cited, however, the undisputed facts demonstrate that the hospital is in the business of providing a service and that its ancillary role in providing surgeons who use the hospital's facilities for medical operations with needed supplies, including the rod in question, does not undermine the hospital's primary role as a provider of services and not of products.
The plaintiff places great emphasis on the fact that the Hospital appears to have made a substantial profit when it billed the patient for the Russell-Taylor device, but he offers no authority for the proposition that the amount of profit should be a factor in determining whether a provider of a professional service should be deemed a product seller. Moreover, the undisputed evidence shows only that the defendant charged the defendant a significantly higher price than it paid for the rod. The plaintiff offered no evidence concerning such issues as overhead and collectibility that could have a significant impact on the amount of "profit," if any. Thus, even if the issue of profit were relevant to the determination the court must make as to the defendant's status as a product seller, the plaintiff has submitted no convincing evidence that the defendant in fact profits from the sale of this or any other materials it furnishes to surgeons performing operations at its facilities.
Because the undisputed facts demonstrate that Middlesex Hospital is not a product seller within the meaning of the Connecticut Products Liability Act, the defendant hospital's motion for summary judgment as to the first count is granted.
Jonathan E. Silbert, Judge