Opinion
UWYCV196047852
01-10-2020
Carla Caceres et al. v. American Medical Systems et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Bellis, Barbara N., J.
MEMORANDUM OF DECISION RE DEFENDANTS’ MOTION TO STRIKE #114
Barbara Bellis, J.
PROCEDURAL HISTORY
The plaintiffs, Carla and Marco Caceres, commenced this action on January 15, 2019, against several parties allegedly involved in the surgical implantation of pelvic mesh products into Carla Caceres. The plaintiffs allege that the pelvic mesh products were defective and seek to hold the parties liable. On February 25, 2019, the plaintiffs filed a twelve count amended complaint (Docket Entry #107), asserting claims for: violations of the Connecticut Product Liability Act (CPLA), pursuant to General Statutes § 52-572m et seq., in the first count; violations of the Connecticut Unfair Trade Practices Act (CUTPA), pursuant to General Statutes § 42-110b et seq., in the second count; lack of informed consent in the third count; innocent misrepresentation in the fourth count; negligent misrepresentation in the fifth count; intentional misrepresentation in the sixth count; negligence in the seventh count; breach of express warranty in the eighth count; breach of implied warranty in the ninth count; recklessness in the tenth count; civil conspiracy in the eleventh count; and loss of consortium in the twelfth count. The present motion to strike is brought by five of the defendants: Surgical Care Affiliates, Inc.; Surgical Care Affiliates, LLC; SCA, Inc. d/b/a Surgical Care Affiliates of Connecticut, Inc.; Connecticut Surgery Center, LP d/b/a Connecticut Surgery Center; and Connecticut Surgical Center, LLC.
Any references to the defendants in this memorandum of decision refer exclusively to these five defendants.
On April 25, 2019, the defendants filed a motion to strike the second, seventh, eighth, ninth, tenth, and eleventh counts of the plaintiffs’ amended complaint and a supporting memorandum of law. (Docket Entry ##114 and 115.) The defendants move to strike these counts on the grounds that the CPLA is the plaintiffs’ exclusive remedy and the amended complaint fails to allege claims that are beyond the scope of the CPLA and, therefore, the CUTPA and common law claims must be stricken. Further, the defendants move to strike the tenth and eleventh counts on the ground that they are insufficiently pleaded and fail as a matter of law. The plaintiffs filed an objection to the defendants’ motion to strike on June 25, 2019. (Docket Entry #130.) The plaintiffs argue that they have appropriately pleaded common law claims in the alternative and have alleged a financial injury that supports their CUTPA claim.
FACTS
In their amended complaint, the plaintiffs allege the following facts relevant to the present motion. On January 22, 2016, pelvic mesh products were implanted into Carla Caceres by her doctor, Kenneth Borkowski, at an outpatient surgery center operated by the defendants. The defendants "furthered the marketing of the ... pelvic mesh products that were implanted into Plaintiff ... to [Borkowski] who made the final delivery of the product to the end user, Plaintiff Carla Caceres." Am. Compl., ¶6. The defendants "were engaged in the business of placing medical devices into the stream of commerce for resale, use and/or consumption by distributing, manufacturing, marketing, packaging, repackaging, labeling, selling and/or reselling, installing or otherwise preparing the product for implantation and use, including the pelvic mesh products that were implanted into the Plaintiff, Carla Caceres." Am. Compl., ¶4. The defendants were aware that the pelvic mesh products were defective, and they either misrepresented or failed to disclose this knowledge. Carla Caceres has suffered various injuries following the implantation of the pelvic mesh products, all of which she attributes to the products’ defective nature. Among these harms, the plaintiffs allege that "[a]s a result of the [defendants’] misrepresentations and nondisclosures, [she] paid a higher price for the product than she otherwise would have, if she had paid anything at all." Am. Compl., Count 2, ¶87.
DISCUSSION
Practice Book § 10-39(a) provides in relevant part: "A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint ..." "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... It is fundamental that in determining the legal sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
The defendants argue that the CPLA is the plaintiffs’ exclusive remedy and bars all of the challenged counts alleged in the amended complaint against them. Moreover, the defendants argue that, notwithstanding that these counts are barred by the exclusivity provision of the CPLA, neither the civil conspiracy nor the recklessness counts of the amended complaint are sufficiently pleaded. The plaintiffs contend that it has properly pleaded its common law claims and the CUTPA claim in the alternative, if these claims are not barred by the CPLA.
I. CPLA Exclusivity
"The exclusivity provision of the product liability act provides: ‘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)." (Footnotes omitted.) Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 125-26, 818 A.2d 769 (2003). Therefore, the product liability act is the exclusive means by which the plaintiffs may secure a remedy against a product seller for injuries caused by a defective product. See id.; Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 72-73, 579 A.2d 26 (1990).
In Connecticut, "the legislature defined a product liability claim to include all claims or actions brought for personal injury, death or property damage caused by [an] allegedly defective product. General Statutes § 52-572m(b). The legislature also provided that the damages are caused by the defective product if they arise from the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. General Statutes § 52-572m(b). In addition, a product liability claim is defined broadly to include, but not be limited to, all actions based on [s]trict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent. General Statutes § 52-572m(b). Finally, the legislature defined [h]arm for purposes of the act to include damage to property, including the product itself, and personal injuries including wrongful death. General Statutes § 52-572m(d). These definitions must be read together, with the understanding that the [liability act] was designed in part to codify the common law of product liability, and in part to resolve, by legislative compromise, certain issues among the groups interested in the area of product liability. The [liability act], however, was not designed to eliminate claims that previously were understood to be outside the traditional scope of a claim for liability based on a defective product. Given this contextual framework, [the Supreme Court] conclude[d] that a product liability claim under the [liability] act is one that seeks to recover damages for personal injuries, including wrongful death, or property damages, including damage to the product itself, caused by the defective product." (Internal quotation marks omitted.) Hurley v. Heart Physicians, P.C., 278 Conn. 305, 324-25, 898 A.2d 777 (2006). "The language of the exclusivity provision, however, suggests that it was not designed to serve as a bar to additional claims, including one brought under CUTPA, either for an injury not caused by the defective product, or if the party is not pursuing a claim for ‘personal injury, death or property damage ...’ General Statutes § 52572m(b)." Gerrity v. R.J. Reynolds Tobacco Co., supra, 263 Conn. 128.
A. Common Law Claims
The defendants first argue that the plaintiffs’ claims for negligence, breach of warranties, recklessness, and civil conspiracy are barred by the exclusivity provision of the CPLA. The defendants argue that all of these causes of action are based on the plaintiffs’ personal injuries suffered as a result of allegedly defective products, bringing them within the scope of the CPLA and, therefore, the CPLA is the plaintiffs’ exclusive remedy. The plaintiffs counter that they have properly pleaded alternative legal theories based upon the same alleged facts.
For each common law claim in their amended complaint against the defendants, except the civil conspiracy claim, the plaintiffs incorporate by reference all of the allegations from the first count, for violations of the CPLA, and add the following allegation: "[t]o the extent [the defendants] conduct described herein is deemed not within the scope of the Products Liability Act, the same constitutes" negligence, breach of express warranty, breach of implied warranty, or recklessness. Am. Compl., Counts 7-10, ¶85. Similarly, as for the civil conspiracy claim, the plaintiffs incorporate by reference all of the allegations from the second count (that had incorporated by reference all of the allegations from the CPLA claim), for violations of the CUTPA, and add the following allegations: "[t]he Defendant, acting in concert with others, conspired to allow, promote, market and sell the Defendant’s pelvic mesh products with known issues that were not disclosed to patients or the FDA" and "Rio the extent [the defendants’] conduct described herein is deemed not within the scope of the Products Liability Act, the same constitutes" civil conspiracy. Am. Compl., Count 11, ¶¶90, 91.
The CPLA is the exclusive remedy for claims falling within its scope. Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 471, 562 A.2d 517 (1989). It does not, however, bar claims outside its scope. Hurley v. Heart Physicians, P.C., supra, 278 Conn. 325-26. "The plaintiff may claim alternative relief, based upon an alternative construction of the cause of action." Practice Book § 10-25; see also Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985) ("[u]nder our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability ... in a single complaint"). In light of the fact that the court’s inquiry pursuant to a motion to strike is limited to a determination of whether the plaintiffs have adequately pleaded claims for negligence, breach of warranties, recklessness, and civil conspiracy; see Practice Book § 10-39; the court cannot make a finding that the defendants are or are not product sellers pursuant to the CPLA at this time. See Mason v. Mercury Fuel Services, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-98-0148477-S (July 20, 2000, Wiese, J.) ("At this stage of the pleadings there are insufficient facts for the court to determine whether the plaintiff’s claims fall within the scope of General Statutes § 52-572n ... Because a motion to strike does not admit legal conclusions, the court cannot assume that the defendants are ‘product sellers’ within the meaning of the statute. The plaintiff may plead its ease in the alternative until such time as it is determined that the products liability counts are improper. Accordingly, the defendants’ motion to strike is denied." [Citation omitted.]). As this key determination cannot yet be made, the defendants’ motion to strike the seventh, eighth, ninth, tenth, and eleventh counts of the amended complaint on the basis of the exclusivity provision of the CPLA, is denied. See Pastrana v. Johnson & Johnson, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-16-6031784-S (May 20, 2019, Bellis, J.) (68 Conn.L.Rptr. 659, 662) ("[s]imilarly, because the court does not presently hold that the hospital is as a matter of law a product seller, the defendants’ motion to strike the plaintiff’s remaining claims against the [defendants] on the basis of the exclusivity provision of § 52-572n(a) is also denied" [emphasis in original]), B. CUTPA
The defendants’ second argument is that the plaintiffs’ CUTPA claim fails because it does not allege any action outside the scope of the CPLA, and the only damages alleged are those arising out of the plaintiffs’ personal injuries caused by a defective product. The plaintiffs argue that they have sufficiently pleaded a CUTPA claim.
In the second count of the amended complaint, the plaintiffs incorporate by reference the allegations of the CPLA count, but then go on to allege that "[t]he [defendants] have engaged in conduct knowing it put numerous members of the public at serious risk of injury for the express purpose [to] maximize its profit and minimizing expenses despite knowing that reasonable efforts would negate or minimize the risk of injury to the public." Am. Compl., Count 2, ¶85. The plaintiffs further allege that "[a]s a result of the [defendants’] misrepresentations and nondisclosures, the [p]laintiff paid a higher price for the product than she otherwise would have, if she had paid anything at all." Am. Compl., Count 2, ¶87. Similar to the plaintiff in Gerrity, the plaintiffs seek to use CUTPA to redress a financial injury rather than a personal injury suffered as a result of the defendants’ conduct. See Gerrity v. R.J. Reynolds Tobacco Co., supra, 263 Conn. 129-30. In Gerrity, the plaintiff alleged that the defendants’ wrongful conduct caused the decedent to pay a higher price for the defendants’ cigarettes than she would have in the absence of such wrongful conduct. Id., 130. As the plaintiffs do not seek a remedy for personal injury, death or property damage; General Statutes § 52-572m(b); the CUTPA claim may be brought in conjunction with a claim under the CPLA. See Gerrity v. R.J. Reynolds Tobacco Co., supra, 130. The defendants’ motion to strike the second count of the amended complaint is therefore denied, II. Other Grounds
A. Recklessness
The defendants also argue that the recklessness count must be stricken for insufficiency, if it is not barred outright by way of the exclusivity provision of the CPLA. The allegations of recklessness, contained in paragraphs 20, 21, 22, 60, 61, 62, 76, and 77 of the tenth count of the amended complaint, by incorporation of paragraphs from the first count, are legally sufficient. A reckless act or omission involves a degree of carelessness well beyond that which characterizes mere negligence because recklessness "requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable [person], and the actor must recognize that his conduct involves a risk substantially greater ... than that which is necessary to make his conduct negligent." (Internal quotation marks omitted.) Bishop v. Kelly, 206 Conn. 608, 614-15, 539 A.2d 108 (1988); see also Doe v. Boy Scouts of America Corp., 323 Conn. 303, 330, 147 A.3d 104 (2016) (same); Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003) ("reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent" [internal quotation marks omitted]). The tenth count, read as a whole and construed most favorably to the plaintiffs, states a claim of recklessness under this legal standard. See Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 398; Hanes v. Solgar, Inc., Superior Court, judicial district of New Haven, Docket No. CV- 15-6054626-S (January 13, 2017, Ecker, J.) (63 Conn.L.Rptr. 728, 730) ("The substance of these allegations sound in the key of negligence, but they are not intended to be heard without accompaniment. They must be understood, rather, in conjunction with the other allegations ... relating to the nature of the conduct at issue and the risk of harm allegedly created by that conduct. A contextualized reading is required not only by the liberal pleading standard applicable to a motion to strike, but also because recklessness can be inferred from the surrounding circumstances."). The defendants’ motion to strike the tenth count of the amended complaint is denied.
B. Civil Conspiracy
The defendants also argue that the civil conspiracy count must be stricken for insufficiency, if it is not barred outright by way of the exclusivity provision of the CPLA. "The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff ..., There is, however, no independent claim of civil conspiracy. Rather, [t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself ... Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort." (Citation omitted; emphasis in original; internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 277 Conn. 617, 635-36, 894 A.2d 240 (2006). "[T]he purpose of a civil conspiracy claim is to impose civil liability for damages on those who agree to join in a tortfeasor’s conduct and, thereby, become liable for the ensuing damage, simply by virtue of their agreement to engage in the wrongdoing." Id., 636. The plaintiffs here have sufficiently alleged a substantive tort, as well as allegations that the defendants committed this tort pursuant to a scheme that resulted in damages to the plaintiffs. See Am. Compl., Count 11, ¶¶90 and 91. Specifically, the plaintiffs allege that the defendants "acting in concert with others, conspired to allow, promote, market and sell the pelvic mesh products with known issues that were not disclosed to patients or the FDA." Am, Compl., Count 11, ¶90. Therefore, the defendants’ motion to strike the eleventh count of the amended complaint must be denied.
CONCLUSION
For the foregoing reasons, the defendants’ motion to strike is denied.