Opinion
No. CV05 500 04 10 S
February 18, 2011
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
FACTS
The case presently before the court involves the malfunction doctrine and is one of first impression in Connecticut. The plaintiff, Mark Hirschbeck, filed the second revised complaint in this action against the defendant, Wright Medical Technology, Inc., on July 20, 2006. In counts one and two of the second revised complaint, respectively, the plaintiff sets forth the following claims against the defendant: (1) violation of the Connecticut Products Liability Act, General Statutes § 52-572m et seq., and (2) punitive damages pursuant to General-Statutes § 52-240b.
Three other plaintiffs are or were involved in this case: Mary Hirschbeck, Federal Insurance Co. and the Office of the Commissioner of Baseball, doing business as Major League Baseball. These additional plaintiffs are not involved in the present motion for summary judgment. Accordingly, Mark Hirschbeck is referred to as "the plaintiff."
John Keggi and Orthopaedic Surgery are also named as defendants in the plaintiff's lawsuit, but neither are involved in the present motion for summary judgment. Thus, Wright Medical Technology, Inc. is referred to as "the defendant."
Counts three, four and five of the plaintiff's second revised complaint are not at issue in the present motion for summary judgment. In counts three and five, Mary Hirschbeck alleged causes of action for loss of consortium against the defendant and John Keggi. These counts were withdrawn on January 25, 2008. In count four, the plaintiff alleges a claim of negligence against Keggi.
The allegations of counts one and two arise out of injuries allegedly suffered by the plaintiff after he underwent a hip procedure performed by John Keggi, involving the installation of a "Transcend Ceramic-on-Ceramic Hip Articulation System." The plaintiff alleges that the defendant "manufactured, designed and/or sold" the device used in the procedure. The plaintiff alleges that "the ceramic acetabular liner," a component of the device, "failed and required removal and revision." The plaintiff alleges that this failure caused his injuries. In a separate count not at issue in the present motion, the plaintiff alleges that his injuries were the result of the negligent care, treatment and supervision by Keggi.
On August 2, 2010, the defendant filed the present motion for summary judgment and a memorandum in support thereof. In support of this motion, the defendant attached three exhibits:(1) a copy of the plaintiff's disclosure of Roland Huet as an expert witness; (2) a copy of the plaintiff's disclosure of Wilson Hayes as an expert witness; and (3) a transcript of the July 21, 2010 deposition of Huet.
On September 22, 2010, the plaintiff filed a memorandum in opposition to the defendant's motion. In support of his memorandum in opposition, the plaintiff attached portions of transcripts of (1) the August 26, 2005 deposition of Keggi; (2) the December 5, 2007 deposition of Keggi; (3) the September 28, 2009 deposition of the plaintiff; (4) the July 21, 2010 deposition of Huet; (5) the May 12, 2010 deposition of Forbes McMullin; (6) the April 24, 2009 deposition of Christopher McDaniel; and (7) the October 14, 2009 deposition of Paul Arrendell.
On November 23, 2010, the defendant filed a reply memorandum. The matter was argued on November 30, 2010.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
"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.) Sherman v. Ronco, 294 Conn. 548, 554, 985 A.2d 1042 (2010). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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 him to judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . 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 § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
I. Count One: The Connecticut Products Liability Act
The defendant argues that it is entitled to summary judgment with respect to count one because the plaintiff cannot meet its burden of establishing that the product in question was defective and that a defect in the product caused the product failure. Specifically, the defendant argues that both of these elements of the plaintiff's products liability claim must fail because they must be supported by expert testimony and the plaintiff's own expert was unable to identify any specific defect in the product.
In response, the plaintiff argues that expert testimony is not required here because a product defect may be proven by circumstantial evidence. Specifically, the plaintiff points to evidence showing that Keggi, the doctor who performed the surgery on the plaintiff, did not install the device negligently and the expert testimony of Huet who could not rule out a defect as the cause of the product failure. The plaintiff argues that a finder of fact crediting that evidence could infer that the plaintiff's injuries were caused by a product defect.
In response, the defendant argues that the circumstantial evidence submitted by the plaintiff is insufficient in two ways. First, the defendant argues that to use circumstantial evidence to prove that a defect was the cause of the product failure, the plaintiff must negate other causes and the plaintiff cannot do so. Second, the defendant argues that the plaintiff may not rely on circumstantial evidence here because the plaintiff's expert relied on "direct evidence," and that circumstantial evidence is only applicable where no such direct evidence exists. Without sufficient circumstantial evidence, the defendant argues, the plaintiff must submit expert testimony.
The plaintiff also argues that his case falls within a class of cases "where it has been held that the burden of proof rests with the defendants to prove their lack of culpability for the plaintiff's injuries." In its reply, the defendant argues that the burden of proof does not shift to the defendant, but always remains with the plaintiff. At oral argument, counsel for the plaintiff stated, "I concede that the plaintiff, for purposes of setting up a prima facie case has to prove traditional elements of tort law . . . I have no problem with that. We're not claiming the burden shift as being related to disposition of the summary judgment motion." (Oral Argument, November 30, 2010, p. 10.) For this reason, the court will not address the plaintiff's argument regarding any shift in his burden on proof.
"[I]n order to recover under the doctrine of strict products liability in tort the plaintiff must prove that: (1) the defendant was engaged in the business of selling the product; (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 the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition." (Internal quotation marks omitted.) Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 214, 694 A.2d 1319 (1997). "In a products liability action, the plaintiff must plead and prove that the product was defective and that the defect was the proximate cause of the plaintiff's injuries." (Internal quotation marks omitted.) Haesche v. Kissner, 229 Conn. 213, 218, 640 A.2d 89 (1994).
The Connecticut Supreme Court has derived its "definition of `unreasonably dangerous' from comment (I) to § 402A [of the Restatement (Second) of Torts], which provides that the article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." (Internal quotation marks omitted.) Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 214-15.
The plaintiff bears the burden at trial of proving the elements of a prima facie case under the Connecticut Products Liability Act. Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 214. On a motion for summary judgment, however, the burden rests with the moving party to show that no genuine issues of material fact exist. Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 10-11. Thus, the defendant has the burden of demonstrating that the plaintiff cannot establish a prima facie case under the Connecticut Products Liability Act. In cases where expert testimony is required for proof of a plaintiff's cause of action, a defendant moving for summary judgment may meet its burden by demonstrating that the plaintiff lacks the requisite expert testimony. See, e.g., Dimmock v. Lawrence Memorial Hospital, Inc., 286 Conn. 789, 814-15, 945 A.2d 955 (2008); Pekera v. Purpora, 80 Conn.App. 685, 691, 836 A.2d 1253 (2003), aff'd on other grounds, 273 Conn. 348, 869 A.2d 1210 (2005).
In support of its assertion that the plaintiff cannot establish the existence of a defect in the present case, the defendant cites the deposition of one of the plaintiff's experts, Roland Huet, an engineering and materials expert. (Defendant's Exhibit C, attached to Defendant's Memorandum in Support of Motion for Summary Judgment.) Huet testified to the following: his "main opinion is that the liner was not installed correctly into the shell. It was installed misaligned or cockeyed, if you will. And that's the most likely cause of the failure of the liner. Also, the liner . . . it is so shattered that you cannot pinpoint where the first cracking occurred. And so you do not know if there was or not a defect in the liner itself at that location." (Deposition of Roland Huet, p. 26.) Also, "the pattern of cracking is really most consistent with a highly localized stress at the rim of the liner, and that indicates a misalignment. And third, the fact that this occurred relatively shortly after the operation . . . is also consistent with an installation error or a manufacturing defect rather than an abnormal loading from outside source." (Deposition of Roland Huet, pp. 28-29.)
Huet was unable to identify a specific product defect. He noted, however, that although a product defect was less likely than misalignment by the surgeon, he could not rule it out completely. (Deposition of Roland Huet, pp. 33-34.) He stated that "[t]he most probable cause is misalignment." (Deposition of Roland Huet, p. 35.) Huet later affirmed these statements, testifying that he could neither find any evidence of a product defect nor identify a specific defect, but that it was possible that a defect existed. (Deposition of Roland Huet, pp. 74-76.) Huet answered affirmatively to the question, "In order to know whether product defect, some defect in the ceramic, played a role in this failure, you would have to first identify the origin of the failure?" He then testified that he could not reach this point in his analysis because he could not identify the point of origin. (Deposition of Roland Huet, p. 113.)
Huet's testimony can be summarized as follows: the most likely cause of the failure of the hip system was a misalignment of the acetabular liner, a component of the hip system designed by the defendant. Such a misalignment would be attributable to the physician who performed the hip replacement procedure, John Keggi. Huet, however, could not rule out the possibility that the hip system failed because of a product defect.
Because Huet could not point to any specific defect that caused the plaintiff's injury and testified that the product failure was most likely the result of a misalignment of the product by Keggi rather than any defect in the product, the defendant is correct that Huet's testimony does not demonstrate that the plaintiff's injuries were the result of any specific defect. It does not necessarily follow from this, however, that Huet's failure to identify a specific defect is fatal to the plaintiff's products liability claim. "Connecticut courts . . . have consistently stated that a jury may, under appropriate circumstances, infer a defect from the evidence without the necessity of expert testimony." Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 218. Consequently, contrary to the defendant's assertion, "[i]t is not necessary that the plaintiff in a strict tort action establish a specific defect as long as there is evidence of some unspecified dangerous condition. In the absence of other identifiable causes, evidence of malfunction is sufficient evidence of a defect . . ." Living Learning Centre, Inc. v. Griese Custom Signs, Inc., 3 Conn.App. 661, 664, 491 A.2d 433 (1985). "In such cases, since the product is no longer available for inspection and the inference based on circumstantial evidence is permitted without predicate of expert testimony but is just based on the nature of the accident, it seems to go without saying that expert testimony need not be produced by the plaintiff to make out a prima facie case." O'Connor v. General Motors Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 89 028104 (April 25, 1997, Corradino, J.) ( 21 Conn. L. Rptr. 151, 151).
Several Connecticut Superior Court decisions have held that expert testimony is not required when a plaintiff presents sufficient circumstantial evidence of a product defect. See, e.g., DeBartolo v. Daimler Chrysler Corp., Superior Court, judicial district of New Haven, Docket No. CV 03 0482725 (December 22, 2005, Munro, J.) ( 40 Conn. L. Rptr. 503); Kroll v. Mazda Motor of America, Inc., Superior Court, judicial district of Milford, Docket No. CV 97 0060070 (March 28, 2000, Grogins, J.) ( 26 Conn L. Rptr. 472); Woods v. General Motors Corp., Superior Court, judicial district of Hartford, Docket No. CV 92 0516326 (January 26, 1996, Wagner, J.) ( 16 Conn. L. Rptr. 63). Moreover, "[c]ases in other jurisdictions espousing this malfunction theory of liability have also found that a prima facie case of products liability can be made out despite the fact that no expert testimony was presented of a specific defect . . ." (Citations omitted.) O'Connor v. General Motors Corp., supra, 21 Conn. L. Rptr. 152.
Thus, the court must determine whether the plaintiff has submitted sufficient circumstantial evidence of both the existence of a product defect and causation to establish a prima facie case under the Connecticut Products Liability Act. If the plaintiff has submitted such evidence, he is not required to produce expert testimony on the existence of a specific defect.
"Section 3 of the Restatement (Third) of Torts, Products Liability is entitled `Circumstantial Evidence Supporting Inference of Product Defect' and provides `[i]t may be inferred that the harm . . . was caused by a product defect . . . without proof of a specific defect, when the incident . . . (a) was a kind that ordinary occurs as a result of product defect; and (b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.' . . . Comment b to this Restatement section elaborates that `[s]ection 3 claims are limited to situations in which a product fails to perform its manifestly intended function, thus supporting the conclusion that a defect of some kind is the most probable explanation.' . . . Comment c explains further that there is `[n]o requirement that [the] plaintiff prove what aspect of the product was defective. The inference of defect may be drawn under this Section without proof of the specific defect. Furthermore, quite apart from the question of what type of defect was involved, the plaintiff need not explain specifically what constituent part of the product failed.' . . . Some courts refer to the rule in this section as the `malfunction doctrine.'" (Citations omitted.) Fallon v. The Matworks, 50 Conn.Sup. 207, 215, 918 A.2d 1067 (2007).
"Under the malfunction doctrine, a plaintiff may establish a prima facie case of product defect by proving that the product failed in normal use under circumstances suggesting a product defect. Put otherwise, a product defect may be inferred by circumstantial evidence that (1) the product malfunctioned, (2) the malfunction occurred during proper use, and (3) the product had not been altered or misused in a manner that probably caused the malfunction. The malfunction doctrine may be described less formally as providing that a plaintiff need not establish that a specific defect caused an accident if circumstantial evidence permits an inference that the product, in one way or another, probably was defective." (Internal quotation marks omitted.) Fallon v. The Matworks, supra, 50 Conn.Sup. 217.
"[T]he very purpose of the malfunction doctrine is to allow a plaintiff to prove a case by circumstantial evidence when there simply is no direct evidence of precisely how or why the product failed. Sometimes the specific cause of a malfunction disappears in the accident when the product blows up, burns up, is otherwise severely damaged, or is thereafter lost. Not infrequently, however, products simply malfunction, and mysteriously so, leaving no tangible trace of how or why they failed. In all such situations, where direct evidence is unavailable, the courts have properly refused to require the plaintiff to prove what specific defect caused the product to malfunction." (Internal quotation marks omitted.) Fallon v. The Matworks, supra, 50 Conn.Sup. 217.
"While courts have applied the malfunction doctrine in many cases to help plaintiffs get to the jury when evidence of a specific defect is unavailable, plaintiffs have lost many other cases in which they have relied unreasonably upon this type of circumstantial proof. The doctrine presents a seductive but faulty shelter for plaintiffs with insufficient proof of defect and causation, and the law reports brim with decisions that recite the propriety of the doctrine as a general proposition but hold it inapplicable to the facts. The opinions in such cases frequently note that, while the malfunction doctrine provides a method for plaintiffs in proper cases to establish defectiveness and causation, the law will not allow plaintiffs or juries to rely on guess, conjecture, or speculation.
"Although the malfunction doctrine may come to a plaintiff's rescue when circumstances fairly suggest the responsibility of a product defect, it is hornbook law that proof of a product accident alone proves neither defectiveness nor causation. Nor does further proof that the accident was caused by a malfunction suffice to prove these elements. The crucial additional showing required of a plaintiff in a malfunction case is the negation of causes for the malfunction other than a product defect." (Emphasis added; internal quotation marks omitted.) Fallon v. The Matworks, supra, 50 Conn.Sup. 218, citing D. Owen, "Manufacturing Defects," 53 S.C. L. Rev. 851, 871-74 (2002).
For a product defect and causation to be inferred under the malfunction doctrine, the plaintiff's circumstantial evidence must demonstrate that the hip system malfunctioned during proper use and that the system had not been altered or misused in a manner that probably caused the malfunction. Fallon v. The Matworks, supra, 50 Conn.Sup. 217. In addition, the plaintiff must show that the incident was not solely the result of causes other than product defect existing at the time of sale or distribution. Restatement (Third), Torts, Products Liability § 3 (1998).
As circumstantial evidence of a product defect, the plaintiff has submitted the deposition testimony of Keggi and of Paul Arrendell, as well as portions of the deposition of Huet submitted by the defendant described above. In his capacity as a medical expert, Keggi explained how he performed the plaintiff's hip replacement surgery and defended his work, explaining that he performed the plaintiff's surgery just as he was supposed to. (Plaintiff's Exhibits A and B, attached as supporting evidence to Plaintiff's Opposition to the Defendant's Motion for Summary Judgment.) In other words, Keggi testified that he was not negligent in his care and treatment of the plaintiff.
The plaintiff also submitted the deposition testimony of Paul Arrendell, an employee or agent of the defendant. (Plaintiff's Exhibit G, attached as supporting evidence to Plaintiff's Opposition to the Defendant's Motion for Summary Judgment.) There, Arrendell explained that "a defect in some of the mating components" and "installation error" could have caused the failure of the hip system. (Deposition of Paul Arrendell, p. 92.) He added that, were the cause a product defect, the defect would be "internal fractures that would not be observable to the naked eye or even under magnification." (Deposition of Paul Arrendell, p. 93.) Last, Arrendell added that a "burr on the acetabular shell itself could result in a scratch that could initiate a crack" and confirmed that the existence of a burr would necessarily imply a defect. (Deposition of Paul Arrendell, p. 93.)
The defendant raises two arguments with respect to the plaintiff's invocation of the malfunction doctrine. First, the defendant argues that the plaintiff's expert, Huet, relied on "direct evidence" and the doctrine applies only where no such direct evidence exists. Applied here, this argument is misguided. In Huet's deposition submitted by the defendant, Huet explained that "the liner — the exact area of origin of the liner has been — there is — it is so shattered that you cannot pinpoint where the first cracking occurred. And so you do not know if there was or not a defect in the liner itself at that location." (Deposition of Roland Huet, p. 26.) The malfunction doctrine is designed to work in situations where physical evidence is destroyed or in a condition which renders detection of a defect impossible or infeasible. As previously stated, "the very purpose of the malfunction doctrine is to allow a plaintiff to prove a case by circumstantial evidence when there simply is no direct evidence of precisely how or why the product failed. Sometimes the specific cause of a malfunction disappears in the accident when the product blows up, burns up, is otherwise severely damaged, or is thereafter lost." Fallon v. The Matworks, supra, 50 Conn.Sup. 217; see also O'Connor v. General Motors Corp., supra, 21 Conn. L. Rptr. 151. According to his testimony, Huet could not have relied on direct evidence because of the condition of the acetabular liner when he performed his investigation.
The defendant's second argument with respect to the plaintiff's invocation of the malfunction doctrine is that the plaintiff must negate all other causes for the malfunction other than a product defect and that the plaintiff has failed to do this here. The defendant points out that, in addition to his products liability claim against the defendant, the plaintiff also alleges that the failure of the hip system was caused by the negligence of Keggi.
As noted above, the Restatement provides that the plaintiff must show that the incident that harmed him "was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution." Restatement (Third), Torts, Products Liability § 3 (1998). The Restatement authors explained this by writing that, "[t]o allow the trier of fact to conclude that a product defect caused the plaintiff's harm under this Section, the plaintiff must establish by a preponderance of the evidence that the incident was not solely the result of causal factors other than defect at time of sale. The defect need not be the only cause of the incident; if the plaintiff can prove that the most likely explanation of the harm involves the causal contribution of a product defect, the fact that there may be other concurrent causes of the harm does not preclude liability under this Section. But when the harmful incident can be attributed solely to causes other than original defect, including the conduct of others, an inference of defect under this Section cannot be drawn." Restatement (Third), Torts, Products Liability § 3, comment (d) (1998).
A plaintiff who seeks to use the malfunction doctrine must negate other possible causes of the product failure. Fallon v. The Matworks, supra, 50 Conn.Sup. 218. What this burden entails remains unclear. Research does not reveal any Connecticut appellate authority on point. This requirement appears to stem from the requirement in the Restatement that the plaintiff must show that the incident was not solely the result of causes other than product defect existing at the time of sale or distribution. The Restatement authors commented that "[t]his burden has been interpreted with varying degrees of stringency." Restatement (Third), Torts, Products Liability § 3, Reporter's Note to comment (d) (1998). This requirement is designed to protect against plaintiffs or juries relying on guess, conjecture or speculation in determining whether a product defect exists. See Fallon v. The Matworks, supra, 50 Conn.Sup. 218.
Most courts require a plaintiff who seeks to use circumstantial evidence in this way to negate all other reasonable causes. See, e.g., Mitchell v. Louisville Ladder, Inc., United States District Court, Docket No. 08-1051 (W.D. Ark. April 21, 2009, Barnes, J.); Moores v. Sunbeam Products, Inc., 425 F.Sup.2d 151, 158 (D.Me. 2006). This burden, however, does not require a plaintiff to eliminate with certainty other possible causes of the product failure. "[A] res ipsa type of inference is enough to establish a defect if the plaintiff can show that he was properly using the product and can negative other possible causes of the product failure since it left the manufacturer's control . . . The [plaintiff] need not negative entirely the possibility that the defendant's conduct was not a cause, and it is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than it was not." (Citations omitted; internal quotation marks omitted.) St. Paul Mercury Ins. Co. v. Viking Corp., United States District Court, Docket No. 04-1124 (E.D. Wisc. January 12, 2007, Callahan, J.), aff'd, 539 F.3d 623 (7th Cir. 2008). "To prove a product defective, a plaintiff is not required to eliminate with certainty all other possible causes of an accident, but rather to present evidence sufficient to allow the trier of facts to reasonably infer that it was more probable than not that the product was defective . . . Thus it was for the jury to decide the truth of the matter." (Citations omitted.) Dietz v. Waller, 141 Ariz. 107, 111, 685 P.2d 744 (1984).
Typically, in cases where courts hold that a plaintiff failed to negate other causes under the malfunction doctrine, the plaintiffs either fail to submit any such negating evidence or their submissions are woefully inadequate. In one case, the plaintiff alleged that a defect existed in a packet of soup noodles she purchased, since it contained beetle larvae. Campbell Soup Co. v. Gates, 319 Ark. 54, 889 S.W.2d 750 (1994). There, the only evidence introduced by the plaintiff was the existence of beetle larvae in the packet of soup noodles. She did not submit any evidence tending to negate the possibility that the larvae entered the package when it was no longer under the control of the defendant. Id., 61-62. In another case, the plaintiff alleged that a defect existed in her car door, since it flew open while she was driving. Williams v. Smart Chevrolet Co., 292 Ark. 376, 730 S.W.2d 479 (1987). There, the only evidence introduced by the plaintiff to negate other causes was her own testimony that she was certain that she shut and locked her car door. The court held that this evidence did not adequately negate other causes. Moreover, the court in Williams noted that the plaintiff's own expert "could not say that any of the problems he found were defects." Id., 384.
Two illustrations to section three of the Restatement are informative. In illustration seven, the Restatement authors described a situation where a plaintiff purchased an electric power screwdriver. "Two weeks after purchasing the electric screwdriver, Jack believed the tool was making too much noise and brought it to the Acme Tool Repair Shop to check it out. Acme removed the mechanism that held the bit, examined it, and then reassembled it. Finding no problem, Acme returned the tool to Jack. The accident occurred the next day. On direct examination Jack's expert testifies that the accident was caused by a defect existing at time of sale. On cross-examination, however, Jack's expert admits it is equally probable that the problem with the tool was introduced by Acme. An inference that the power tool was defective at the time of sale cannot be drawn under this Section." Restatement (Third), Torts: Products Liability § 3, illustration seven (1998).
Illustration seven is informative because it is distinguishable from the present case. In illustration seven, the only evidence produced by Jack was one expert who opined that the cause of the accident was equally likely to be either a product defect or introduced by Acme, the third party. Jack did not introduce any evidence tending to negate Acme as a cause.
In the present case, the plaintiff introduced the expert testimony of Huet. Huet provided similar testimony to the expert in illustration seven. He testified that the plaintiff's injuries were most likely caused by Keggi's negligence, but also possibly by a product defect introduced by the defendant. Here, however, the plaintiff also introduced the expert testimony of Keggi in which Keggi described in detail his conduct during his care and treatment of the plaintiff and opined that he complied with the appropriate standard of care. This is the "crucial additional showing" the plaintiff is required to make. Fallon v. The Matworks, supra, 50 Conn.Sup. 218. Although this testimony does not definitively eliminate Keggi as a cause of the product failure, it tends to negate his negligence as a cause and, if credited by a fact finder, could lead to a conclusion that Keggi was not negligent during his care and treatment of the plaintiff. Unlike in illustration seven, Campbell Soup Co. v. Gates, supra, 319 Ark. 54, and Williams v. Smart Chevrolet Co., supra, 292 Ark. 376, the plaintiff here has introduced evidence sufficient to negate Keggi's negligence as a cause of the product failure.
The evidence in the present case is more akin to that in illustration six. There, the plaintiff and defendant presented conflicting evidence: the plaintiff's expert testified that a defect was the most likely cause of the accident and the defendant's expert testified that the plaintiff's negligence was the most likely cause. In this situation, the Restatement authors commented that whether an inference of a defect could be drawn depended upon which expert the finder of fact credited. Restatement (Third), Torts: Products Liability § 3, illustration six (1998). Here, there is conflicting evidence: Huet's testimony that a misalignment is the most likely cause of the product failure and Keggi's testimony that he was not negligent. Like in illustration six, whether an inference of a defect will be drawn depends upon what testimony the fact finder credits.
Thus, a plaintiff who intends to use the malfunction doctrine to establish a product defect must introduce evidence that tends to negate other reasonable causes for the product failure. Per this requirement, a plaintiff is not required to eliminate with certainty other causes. Instead, he must proffer evidence sufficient to allow the fact finder to reasonably infer that a product defect was the most likely cause of the product failure. See St. Paul Mercury Ins. Co. v. Viking Corp., supra, United States District Court, Docket No. 04-1124; Dietz v. Waller, supra, 141 Ariz. 111.
The plaintiff has submitted sufficient circumstantial evidence under the malfunction doctrine to allow a jury to infer that a product defect existed and caused the product failure. Huet explained that the most likely cause of the product failure was a misalignment of the acetabular liner, indicative of surgeon negligence, but that a product defect could not be ruled out. Arrendell bolstered the possibility that a product defect existed. Keggi testified that he was not negligent in his care and treatment of the plaintiff. The evidence submitted by the plaintiff tends to negate Keggi's negligence, the only other possible cause of the product failure reasonably suggested by the parties and their experts.
Huet testified that "there's always the possibility that the liner might have failed because of an abnormal external trauma, a big overload." (Deposition of Roland Huet, p. 27.) The defendant, however, does not argue that external trauma presents a reasonable possible cause of the product failure that the plaintiff must negate. Neither of the parties have introduced any evidence indicating that any external trauma was a cause of the product failure. Moreover, even if the defendant argued that the plaintiff must offer evidence that tends to negate external trauma as a cause, the plaintiff has satisfied this burden with his testimony that he "followed the [doctor's] instructions" after his surgery and "was laying on the couch" when his injuries occurred. (Deposition of the plaintiff, p. 141, 146.) The defendant has not introduced any evidence to contradict the plaintiff's testimony on when his injuries occurred.
Since the plaintiff has submitted sufficient circumstantial evidence to avail himself of the malfunction doctrine, he is not required to produce expert testimony regarding a specific defect. Thus, the plaintiff's circumstantial evidence, if credited by the fact finder, is sufficient to establish the existence of a product defect and causation under the malfunction doctrine. Ultimately, whether a product defect exists and if so, whether that defect caused the product failure, are questions for the jury to decide.
On a motion for summary judgment, it is the burden of the moving party to show the nonexistence of any issue of fact. Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 10-11. Whether a defect existed in the hip system at the time of sale or distribution is a material fact, as is whether any such defect caused the alleged product failure. A genuine issue of material fact remains since the plaintiff's evidence, if credited by the finder of fact, presents circumstantial evidence under the malfunction doctrine sufficient to establish the product defect and causation elements for a prima facie case under the Connecticut Products Liability Act. Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 214. The defendant's motion for summary judgment is denied with respect to count one of the plaintiff's second revised complaint.
II. Count Two: Punitive Damages CT Page 5562
The defendant argues that the plaintiff is not entitled to punitive damages under § 52-240b because he has failed to submit evidence that would support a finding that the defendant acted with reckless disregard. In response, the plaintiff argues that he is entitled to punitive damages and, moreover, that a motion for summary judgment is the incorrect motion for challenging an entitlement to such relief. The defendant posits that a motion for summary judgment may be used to challenge a claim for punitive damages.
The defendant does not challenge the legal sufficiency of the plaintiff's claim of entitlement to punitive damages. If it did, then the court would have to consider whether such an argument could be raised on a motion for summary judgment instead of a motion to strike. See Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). Instead, the defendant's argument pertains to the sufficiency of the evidence offered by the plaintiff in support of his claim for punitive damages. Such an argument should be raised on a motion for summary judgment, not a motion to strike.
The defendant's argument with respect to the plaintiff's claim of entitlement to punitive damages is that the plaintiff "has failed to offer any evidence that Wright Medical engaged in reckless or outrageous conduct." Thus, the defendant argues that the plaintiff's failure to proffer evidence of the defendant's alleged recklessness precludes any entitlement to punitive damages.
On a motion for summary judgment, it is the burden of the moving party to show the nonexistence of any issue of fact. Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 10-11. "When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." Id., 11. The defendant presents no evidence demonstrating that it did not act with reckless disregard for the safety of its product users, as alleged by the plaintiff. Thus, the plaintiff need not submit any evidence at this time to establish an issue. Simply put, the defendant has failed its burden on a motion for summary judgment since genuine issues of material fact persist with respect to the plaintiff's entitlement to punitive damages. Thus, the defendant's motion for summary judgment with respect to the plaintiff's claim for punitive damages is denied.
III. Conclusion
For the foregoing reasons, the defendant's motion for summary judgment with respect to counts one and two of the plaintiff's second revised complaint is denied.