Opinion
No. X07 CV 03 4027734 S
July 21, 2008
MEMORANDUM OF DECISION
I
The plaintiff, Angele M. Vandermark, has brought the instant action seeking damages for a second or third degree burn and/or laceration on her lower lip allegedly sustained while having her wisdom teeth removed on July 31, 2002. In her fourth amended complaint, filed December 14, 2005, she claims the defendants, two dentists performing the dental surgery, Jonathan Goldman, D.M.D., and Eli Ferneini, D.D.S., and their employer, Hartford Hospital, were negligent for a variety of reasons related to the overheating of a drill which allegedly caused the plaintiff's injuries. Pursuant to the Connecticut Product Liability Act, General Statutes § 52-572m, et seq., and the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a, et seq. (CUTPA), the plaintiff also alleges product liability and CUTPA counts against the defendants Zimmer, Inc. in counts two and three and Linvatec Corporation (collectively, Zimmer) in counts four and five. Zimmer is the manufacturer of the type of drill, a Surgairtome Two model, at issue here. In counts six and seven, the plaintiff asserts product liability and CUTPA counts against Ace Surgical Supply Co., Inc. (Ace), the manufacturer of the bur guard utilized on the drill. Finally, in counts eight and nine, the plaintiffs allege a product liability and a negligence claim against Hayes Handpiece of Hartford, Inc. (Hayes), an alleged repairer of the bur guard.
In the plaintiff's motion to cite in Linvatec Corporation, filed July 21, 2005, she alleges that Linvatec Corporation purchased Zimmer's line of surgical drills on or around 1997 and then manufactured the same or similar drills. Because the specific drill at issue here has not been identified and since the drill may have been made after 1997, the plaintiff sues both Zimmer, Inc. and Linvatec Corporation.
On April 26, 2006, Hayes filed an apportionment complaint against Nuell, Inc. (Nuell), pursuant to General Statutes §§ 52-102b and 52-572h alleging that any damages suffered by the plaintiff were caused by Nuell's negligent repair of the bur guard. On May 30, 2006, the plaintiff filed a direct complaint against Nuell. On June 30, 2006, Ace cross claimed against Hayes and Nuell pursuant to General Statutes §§ 52-572o and 52-577a seeking contribution and an allocation of fault if Ace is found liable.
Meanwhile, on February 15, 2006, Ace filed a motion to strike the CUTPA count of the plaintiff's complaint (count seven) on the grounds that it is precluded by the exclusivity provision of General Statutes § 52-572n. Hayes moved for summary judgment on March 29, 2006 on the plaintiff's two counts against it (counts eight and nine) arguing that both the product liability claim and the negligence claim are barred by the statute of limitations. On September 18, 2006, the court, Jones, J., granted the summary judgment motion as to the negligence count (count nine) but denied the motion as to the product liability count (count eight).
Section 52-572n(a) provides: "A product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product."
On April 28, 2006, Zimmer moved for summary judgment on the CUTPA counts (counts three and five) on the same grounds as Ace and on the product liability counts (counts two and four) asserting that the plaintiff could not prove that there was a defect in the drill that caused her injury or that it was defective when sold. On July 17, 2006, Nuell moved to dismiss the Hayes' apportionment complaint for lack of personal jurisdiction on the grounds that it was untimely because it was not served within 120 days of the original return date, i.e., October 7, 2003, pursuant to § 52-102b. Nuell also moved to dismiss the plaintiff's direct complaint and Ace's cross claim arguing that, since they were derivative of the Hayes' apportionment complaint, they must similarly fail. Finally, on May 10, 2007, Hayes moved for summary judgment on the plaintiff's product liability count (count eight) arguing that it was not a seller as defined by the product liability act. The court heard oral argument on these motions on April 7, 2008.
II A.
Ace filed a motion to strike and Zimmer filed a motion for summary judgment challenging the CUTPA counts against them. They argue that, pursuant to § 52-572n(a), actions brought under the product liability act "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." The plaintiff counters that the CUTPA counts of her complaint may be construed to fall outside of the product liability act and contain allegations that are separate and distinct from the product liability counts.
In Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 122, 818 A.2d 769 (2003), the court addressed the issue of "whether a plaintiff, who seeks damages under the Connecticut Product Liability Act, General Statutes § 52-572m et seq., for injuries caused by an allegedly defective product, may also assert a claim under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., for damages alleged to have been caused by the product seller's deceptive scheme to misrepresent and conceal the product defect." The court found that "[t]he exclusivity provision makes the product liability act the exclusive means by which a party may secure a remedy for an injury caused by a defective product . . . The issue . . . therefore, is whether the plaintiff's CUTPA claim falls within the scope of the product liability act. If it does, then it is precluded and may not be asserted in conjunction with the product liability act claim. If, however, the CUTPA claim falls outside the purview of the product liability act, it may be asserted and the exclusivity provision will not serve as a bar." (Citations omitted.) Id., 126-27. Thus, "[t]he language of the exclusivity provision . . . 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." (Internal quotation marks omitted.) Id., 128.
Ultimately, the court held that the CUTPA claims in Gerrity were not barred by the exclusivity provision of the product liability act because the plaintiff was seeking redress for a financial injury as opposed to a remedy for a personal injury. Id., 129-31. Specifically, the court found that "[t]he plaintiff alleged that the decedent was forced to pay a higher price for the defendants' cigarettes than she would have had to pay in the absence of the wrongful course of conduct allegedly engaged in by the defendants." Id., 130. The court concluded that this alleged financial injury "cannot reasonably be construed to be a claim for personal injury, death or property damage." (Internal quotation marks omitted.) Id., 131.
See also Fiorentino v. A to Z Rental Co., Superior Court, judicial district of New Haven, Docket No. CV 02 0465508 (October 16, 2003, Harper, J.) (allowing plaintiff-renter to pursue CUTPA and product liability causes of action because plaintiff-renter sought economic redress for rental of defective scaffolding).
In the present case, as noted by the defendants, the plaintiff's damages allegations are exactly the same for the product liability and CUTPA counts. The claimed injury is that "the plaintiff sustained a severe second or third degree burn and/or laceration to her lower lip, with a loss of feeling to her lower lip. This burn and/or laceration required treatment in the Hartford Hospital Emergency Room, treatment with an oral maxillofacial surgeon, and she continues to undergo follow-up treatment." See fourth amended complaint, second count, ¶ 11; third count, ¶ 12; fourth count, ¶ 11; fifth count, ¶ 12; sixth count, ¶ 11; seventh count, ¶ 12. The other allegations are all similar: "the patient has suffered and continues to suffer great pain, disfigurement and embarrassment;" "the plaintiff was and is required to spend various sums of money for medical care;" "the plaintiff has been unable to enjoy many of the social and recreational activities to the extent she formerly was able;" and, finally, "the plaintiff lost time from her employment." All of these allegations unequivocally illustrate that the plaintiff seeks compensation for personal injuries caused by the drill and/or bur guard. See Hurley v. Heart Physicians, P.C., 278 Conn. 305, 326, 898 A.2d 777 (2006) (upholding trial court's granting of motion to strike CUTPA count as plaintiff alleged only personal injuries caused by pacemaker). Hence, the plaintiff's CUTPA claims are barred by the exclusivity provision of the product liability act. Therefore, Ace's motion to strike the seventh count is granted and Zimmer's motion for summary judgment, which the plaintiff did not oppose, as to the third and the fifth counts is also granted.
B.
Zimmer also moves for summary judgment on the product liability counts asserting that the plaintiff cannot prove that the drill was defective or that it contained a defect when it was sold. Zimmer argues that, according to the Hartford Hospital employees, the bur guard was defective, not the drill itself, and that, once the subject bur guard was removed and another substituted, the drill was placed back into service where it has been utilized continuously since July 31, 2002 without incident. The plaintiff does not rebut this. Moreover, Zimmer argues that, because the specific drill involved in the event has not and cannot be identified and because the plaintiff's experts have never inspected the drill, there is simply no material fact at issue that supports the claim that the drill was defective.
The plaintiff counters that Goldman knew the drill was vibrating violently, instructed Ferneini to stop, realized it was hot and saw it resting on the plaintiff's lip. After the drill was taken to Vernon Kwok, the director of the department of dentistry at Hartford Hospital, the bur guard was allegedly removed but the drill was not identified in any way prior to being placed back into use. Nevertheless, the plaintiff's expert, Josef G. Bieber, D.D.S., opined at his deposition that the body of the overheated drill came in contact with the plaintiff causing her burn and that the drill lacked an internal irrigation system which would have prevented it from overheating. The plaintiff's mechanical engineer, John Zamparo, stated in his affidavit that the drill lacked a protective shield which would also have prevented the injury. Thus, the plaintiff argues that there are questions of fact to be determined as to whether, for instance, the drill was defectively designed or whether the drill or the bur guard caused the injury. This court agrees.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Lopes v. Farmer, 286 Conn. 384, 388, 944 A.2d 921 (2008). "The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 403, 944 A.2d 925 (2008).
"The court is required to view the facts presented in a motion for summary judgment in the light most favorable to the party opposing the motion . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Citations omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-03, 842 A.2d 1134 (2004).
Zimmer argues that no genuine issue of material fact exists because the exact drill involved here is still in use and has never been identified or inspected. Nevertheless, Hartford Hospital's failure to identify the specific drill does not rule out the possibility that the plaintiff's injury was caused by one of the hospital's Surgairtome Two drills because of the two design defects suggested by Bieber and Zamparo. Whether a product is unreasonably dangerous is a question of fact to be determined by the jury . . . [T]he jury can draw their own reasonable conclusions as to the expectations of the ordinary consumer and the knowledge common in the community at large." (Internal quotation marks omitted.) Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 225, 694 A.2d 1319 (1997). Notwithstanding Zimmer's allegations, the court finds that there are factual issues extant that preclude granting its motion for summary judgment. Thus, Zimmer's motion for summary judgment as to the second and fourth counts is denied.
C.
As noted, Nuell moved to dismiss Hayes' apportionment complaint, the plaintiff's complaint and Ace's cross claim on the grounds that this court lacks personal jurisdiction over Nuell because the apportionment complaint was not served within 120 days of the original return date of October 7, 2003 pursuant to § 52-102b. Section 52-102b(a), in relevant part, provides: "A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint . . ."
Nuell's motion to dismiss the plaintiff's complaint was previously denied by the court, Hurley, J.T.R., on October 30, 2006. Counsel indicated there has never been a request to reconsider that ruling and, in light of this court's findings, that ruling shall stand.
Nuell argues that the plaintiff's right to serve a complaint on Nuell is contingent upon Hayes' right to serve the apportionment complaint pursuant to § 52-102b. The same argument is made as to Ace's cross claim. Thus, Nuell asserts that, if the court does not have personal jurisdiction over Nuell as to the apportionment complaint, the court also lacks personal jurisdiction over Nuell as to the plaintiff's complaint and Ace's cross claim.
"[N]oncompliance with § 52-102b implicates a court's personal jurisdiction, not subject matter jurisdiction." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 14, 848 A.2d 418 (2004). "[T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction . . . Accordingly, jurisdiction over a person can be obtained by waiver . . . Unlike the situation with subject matter jurisdiction, a party waives the right to dispute personal jurisdiction unless that party files a motion to dismiss within thirty days of the filing of an appearance . . . Personal jurisdiction is not like subject matter jurisdiction, which can be raised at any time and by the court on its own motion . . . Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost." (Internal quotation marks omitted.) Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 415-16, 885 A.2d 768 (2005). "Thus, thirty-one days after the filing of an appearance . . . a party is deemed to have submitted to the jurisdiction of the court." Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).
"Because § 52-102b implicates personal jurisdiction, a party must object to defective service of process for a claim brought pursuant to the statute within thirty days of the filing of an appearance. Failure to do so waives any such objection." Carpenter v. Law Offices of Dressler Associates, LLC, 85 Conn.App. 655, 662, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004) (holding that apportionment defendants waived any challenge to court's personal jurisdiction because of untimely filing of motion to dismiss).
In the present case, Nuell waived any right to challenge the court's exercise of personal jurisdiction over it. Nuell's counsel filed an appearance on May 18, 2006 and then moved for thirty-day extensions of time to respond to the apportionment complaint and the plaintiff's complaint on June 2, 2006. Nevertheless, Nuell's motions to dismiss were not filed, at the earliest, until July 17, 2006 — two weeks after any extension of time would have expired. Therefore, because Nuell did not file the motions to dismiss on the basis of lack of personal jurisdiction within thirty days of counsel's appearance or during the period requested in the motions for extension of time, the court properly obtained personal jurisdiction over Nuell. As a result, Nuell's motions to dismiss are denied.
While this issue was not raised at oral argument or in the parties' memoranda, all counsel were informed of it during a conference call with the court on July 2, 2008 and given the opportunity to brief it. Counsel for Nuell advised the court, by letter dated July 9, 2008, that it would not be submitting a supplemental brief on the issue.
Nuell's motion for extension of time to respond to the apportionment complaint was granted by the court, Hurley, J.T.R., on October 10, 2006. The court did not act upon Nuell's motion for extension of time to respond to the plaintiff's complaint.
Nuell filed its motions to dismiss the apportionment complaint and the plaintiff's complaint on July 17, 2006 and filed its motion to dismiss Ace's cross claim on July 31, 2006.
Some courts have held that motions to dismiss based upon lack of personal jurisdiction must be filed within thirty days of the filing of an appearance, regardless of the granting of any motions for extension of time. See, e.g., Mazzone v. Carranza, Superior Court, judicial district of New Britain, Docket No. CV 07 5004401 (October 19, 2007; Shapiro, J.) (44 Conn. L. Rptr. 546, 547); Schrobenhauser v. Bielmatik-Leuze GmbH Co., Superior Court, judicial district of Hartford, Docket No. CV 02 0818905 (March 7, 2003, Sheldon, J.) (34 Conn. L. Rptr. 293, 295). Other courts have found a motion to dismiss, even though it was filed more than thirty days after an appearance was filed, to be timely where a motion for extension of time was granted. See, e.g., Medina v. Garcia, Superior Court, judicial district of New Britain, Docket No. CV 06 5000784 (October 31, 2006, Pittman, J.) (42 Conn. L. Rptr. 260, 261); McNamara v. Tournament Players Club of Connecticut, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 00 0093091 (September 4, 2001, Gilardi, J.). This court does not address the issue here as the motions to dismiss were not filed within thirty days from the filing of the appearance nor were they filed within the time requested by the motions for extension of time. See Klair v. Kingery, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0193258 (May 2, 2006, Lewis, J.T.R.) (denying motion to dismiss as it was not filed within time prescribed by extension of time); Gyadu v. Law Office of Eugene Melchionne, Superior Court, judicial district of Waterbury, Docket No. CV 04 4002679 (September 21, 2005, Matasavage, J.) (same).
Even if the motions to dismiss were timely filed, it would be inequitable to grant them. In Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 26, our Supreme Court held that the § 52-102b limitation for service of an apportionment complaint within 120 days of the original return date is mandatory. Nevertheless, the court recently recognized that the 120-day rule "is not without exception" in Pedro v. Miller, 281 Conn. 112, 118, 914 A.2d 524 (2007). Indeed, in discussing Lostritto, the court noted that it had held therein that "[m]andatory time limitations . . . must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties." (Emphasis in original; internal quotation marks omitted.) Id. The court defined the issue as whether the fact that the legal basis for apportioning liability arose only after the 120-day limit already had expired constitutes an equitable reason justifying excusal from compliance with the limit." Id., 118-19. It held that "§ 52-102b was designed to create an effective means of accomplishing apportionment with reasonable certainty . . . Allowing for exceptions to the 120 day limit for equitable reasons is consistent with that goal. The concept of `reasonable' certainty embodies the concept that the ideal of predictability cannot be so rigidly adhered to that the apportionment system must tolerate inequities that are easily avoided by allowing exceptions where equity demands them." (Citation omitted; emphasis omitted.) Id., 121.
In the present case, the plaintiff did not cause process to be served upon Hayes until December 12, 2005, years after the return date on the original complaint. While Ace allegedly made the bur guard, it was Hartford Hospital that allegedly sent the bur guard to Hayes which then sent it to Nuell to replace some parts. That is not information that was readily available to the plaintiff when this suit commenced. Indeed, Ace argues in its memorandum of law in support of its motion to dismiss, which Hayes adopts, that "Hayes was the party that had the information that Nuell had serviced and repaired the involved equipment replacing all moving parts." With Nuell's involvement not known until years after the original complaint was served in 2003 and in light of the court's holding in Pedro, it would be inequitable to deprive Hayes, and, consequently, the plaintiff and Ace, of the ability to seek relief against Nuell because of a time limit which Hayes never could have met.
D.
Finally, Hayes moves for summary judgment on the plaintiff's product liability count (count eight) on the grounds that there is no genuine issue of material fact that it is not a "product seller" as defined by General Statutes § 52-572m(a) in that it is neither "a manufacturer, wholesaler, distributor or retailer." "The definition of `product seller' provided by § 52-572m(a) is identical to the definition provided by § 102(1) of the Draft Uniform Product Liability Law (draft act), 44 Fed. Reg. 2996, 2997-98 (1979). Also, the draft act, like § 52-572m et seq., does not include a definition for the term `product' . . . Those are not mere coincidences, for, as our Supreme Court previously has stated, the legislature based § 52-572m et seq. on the draft act (not on the model act) . . . Because the legislature, in § 52-572m(a), adopted verbatim the language of § 102(1), we look to the commentary to § 102(1) of the draft act for guidance . . .
Section 52-572m (a) provides: "`Product seller' means any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption. The term `product seller' also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products."
"The commentary to § 102(1) of the draft act provides in relevant part: The Act does not address several definitional problems of `product seller.' First, it does not address the problem of the product seller engaged in a service . . . It is suggested that a party be considered a product seller where a sale of a product is a principal part of the transaction and where the essence of the relationship between the buyer and seller is not the furnishing of professional skill or services." (Citations omitted; emphasis in original; internal quotation marks omitted.) Truglio v. Hayes Construction Co., 66 Conn.App. 681, 384-85, 785 A.2d 1153 (2001). In Truglio, the court examined the essence of the parties' relationship to determine whether it was based on the furnishing of a service or the sale of a product. Id., 685.
In the present case, Paul Cote, Hayes' owner, states in his affidavit that, prior to April 29, 2002, he picked up three bur guards from the hospital and sent them to Nuell for repair and returned them to the hospital. He avers that Hayes has never been in the repair business nor has it ever sold bur guards to the hospital. In response, the plaintiff counters with the deposition of Marisol Rios, a Hartford Hospital clinic employee, who testified that in 2002 she used Hayes "to purchase hand pieces, that is who I am using at the present time" and that she gets her drills from Hayes. Indeed, Rios stated that the hospital purchased two new bur guards from Hayes on August 6, 2002, just six days after the plaintiff was allegedly burned. Viewing these facts most favorably for the plaintiff, the court finds that there is a factual dispute as to whether Hayes may be considered a product seller as opposed to a service provider. Hence, Hayes' motion for summary judgment must be denied.
III
In sum, Ace's motion to strike the seventh count is granted; Zimmer's motion for summary judgment as to the third and the fifth counts is granted but denied as to the second and the fourth counts; Nuell's motions to dismiss the apportionment complaint, plaintiff's complaint and Ace's cross claim are denied; and Hayes' motion for summary judgment as to the eighth count is denied.