Opinion
No. CV00 0274660-S
April 7, 2003
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
I
PROCEDURAL HISTORY
This case concerns an injury allegedly suffered by the plaintiff, Daniel Wallace, when a porta catheter (porta cath) was surgically placed in him for the purpose of administering chemotherapy medication. It is alleged that the porta cath that was furnished to him was defective in that it allowed the chemotherapy medication to leak out of the device, thus causing an extravasation injury to the surrounding and previously healthy tissue. Subsequent to this injury, Wallace commenced suit against the defendants, Gerard Medical, Inc., and Veteran's Memorial Medical Center (VMMC), claiming a violation of the Connecticut Products Liability Act, General Statutes § 52-572m et seq. VMMC now moves for summary judgment on the ground that, because it is not a vendor, it cannot be held liable under § 52-572m et seq.
In his complaint, Wallace mistakenly refers to the Connecticut Products Liability Act as § 52-572 (n) et seq. This will be treated as a scrivener's error.
As alleged in Wallace's complaint, Gerard is a foreign corporation that is engaged in the business of manufacturing and selling medical devices, including the porta cath. Its principle place of business is Charlton, Massachusetts. VMMC is a health care facility located in Meriden, Connecticut. It was at this facility, on December 19, 1997, that Wallace underwent the procedure to place the porta cath in his right subclavian vein. A short time after this procedure, in January of 1998, Wallace underwent his first round of chemotherapy. Because of the leakage of medication that took place during this treatment. Wallace was required to undergo additional surgical procedures whereby the wound was debrided. It is alleged that VMMC was engaged in the business of selling porta caths manufactured by Gerard.
On November 8, 2000, Wallace filed a two-count complaint against Gerard and VMMC. Count one of this complaint is directed towards both defendants and alleges that, pursuant to § 52-572m et seq., they breached an express warranty that the device in question was safe for its intended use, and that this breach was a substantial factor in causing Wallace's injuries. This count also alleges a breach of various implied warranties. Count two of this complaint is also directed towards both defendants and alleges recklessness. A revised complaint was thereafter filed on April 1, 2002. This complaint separates the allegations against the two defendants. Counts one and three are directed toward Gerard individually, and sound in products liability and recklessness respectively. Counts two and four are directed toward VMMC individually, and also sound in products liability and recklessness respectively. A second revised complaint was filed on April 25, 2002, in which counts three and four, alleging recklessness, were deleted. Wallace died subsequent to the commencement of this action. On February 19, 2002, Pauline Wallace, executrix of Daniel Wallace's estate, was substituted as the party plaintiff.
On October 7, 2002, VMMC filed a motion for summary judgment as to count two of the amended complaint. VMMC moves on the ground that there are no genuine issues of material fact and it is entitled to judgment as a matter of law pursuant to § 52-572m et seq. because, as a hospital, VMMC is not a product seller with regard to the alleged defective porta cath, which is merely incidental to the medical services provided. In support of its motion, VMMC submits a memorandum of law; a reply memorandum: a supplemental reply: and a signed and sworn affidavit of Margaret Sherwood, who is the director of perioperative services at VMMC.
Wallace filed an objection on December 9, 2002, which is also the date that this matter appeared on the short calendar. Wallace argues that summary judgment should not be granted because genuine issues of material fact exist as to whether VMMC may be considered a product seller as defined by the products liability act. Wallace also argues that the products liability act has never been held to exclude hospitals beyond the Superior Court level, and that public policy reasons dictate against excluding hospitals. In support, Wallace submits a memorandum of law. Wallace has submitted no evidence in opposition to this motion for summary judgment.
II DISCUSSION
"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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Gaynor v. Payne, 261 Conn. 585, 590, 840 A.2d 170 (2002). When a party moves for summary judgment and there are no contradictory affidavits, the court can properly decide the motion by looking only to the sufficiency of the movant's affidavits and other proof. Heyman Associates No. 1 v. Insurance Company of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995). "[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).
A products 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). Products liability claims also include "all actions based on . . . breach of warranty, express or implied." Id.
A products liability claim may only be asserted, however, against one who is a product seller. See General Statutes § 52-572m (a); Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987). A product seller is "any person or entity . . . who is engaged in the business of selling such products whether the sale is for resale or for use and consumption." General Statutes § 52-572m (a). The products liability act does not apply, therefore, to the furnishing of a professional service. "Once a particular transaction is labeled a `service,' as opposed to a `sale' of a `product,' it is outside the purview of our products liability statute." Zichichi v. Middlesex Memorial Hospital, supra, 204 Conn. 403. Whether the defendant is a product seller is a question of law for the court to decide. Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 72, 579 A.2d 26 (1990).
A more difficult issue is presented by a hybrid sales-service transaction. In determining whether a particular transaction falls under the products liability statute, one factor that courts take into consideration is "whether the service of the defendant or the product transmitted was the principal thing bargained for." W. Prosser W. Keeton, Torts (5th Ed. 1984) § 104, p. 720. "Where 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." Luthy v. The Eagle Leasing Co., Superior Court, judicial district of New Haven, Docket No. CV 97 0403340 (August 7, 2001, Munro, J.). In Truglio v. Hayes Construction Co., 66 Conn. App. 681, 684-85, 785 A.2d 1153 (2001), the court looked to 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." (Emphasis in original.) 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).
The issue of whether a hospital is a product seller pursuant to the products liability statute has not yet been decided by the appellate courts. There are several Superior Court decisions, however, addressing this issue. When this issue has been presented by way of a motion for summary judgment, the Superior Courts have held that a hospital is not a product seller, and is therefore not subject to the products liability act.
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 suffered injuries as a result of the malfunction of these devices. The court held that, under the facts of that case, the defendant hospital "was a provider of services and not a product seller as defined by [General Statutes § 52-572m (a)]" Id. There are several other Superior Court decisions also addressing this issue on motions for summary judgment. Lewis v. Hospital of St. Raphael, Superior Court, judicial district of New Haven, Docket No. 242951 (March 15, 1988, Flanagan, J.) (defendant hospital not liable under products liability act where plaintiff was injured because of defective "fusion wire" used in surgery to his neck); Uzar v. Browne, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 85 0077603 (September 22, 1987, Lewis, J.) (hospital is not a product seller under the products liability act where the plaintiff was injured during surgery because of a defective drape); 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) ("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"); Burke v. Planned Parenthood of Connecticut, Inc., Superior Court, judicial district of New London, Docket No. 082186 (August 20, 1987, Harley, J.) ("defendant is a medical provider not subject to liability under the products liability statute"). See also Saccone v. Staub, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 221737 (April 10, 1986, Mihalakos, J.) (granting motion to strike on the ground that a hospital is not included in the definition of "product seller"); 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 products liability act).
In addition to these Superior Court cases, a leading treatise has stated: "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 principle thing bargained for is not the product transmitted but the professional services of the defendant." W. Prosser W. Keeton, supra, § 104, p. 720.
This court is in agreement with those decisions holding that a hospital is not a "product seller" pursuant to § 52-572m (a), but rather is engaged in providing a medical service. In the present case, the evidence submitted shows that VMMC keeps only 1-2 porta caths of the type manufactured by Gerard on hand for emergency use. (VMMC's Memorandum of Law, dated October 4, 2002, Exhibit A: Margaret Sherwood Affidavit, ¶ 5.) Otherwise, if a physician wishes to use a porta cath manufactured by Gerard, that physician must request that VMMC obtain it. (Sherwood Affidavit, ¶ 5.) Furthermore, VMMC does not market, advertise or solicit the sale of porta caths manufactured by Gerard. (Sherwood Affidavit, ¶ 4.) Wallace has submitted no evidence to contradict that this is the practice of VMMC. These actions on the part of VMMC do not constitute being "engaged in the business of selling" porta caths, as is required by § 52-572m (a). The porta caths were merely kept on hand, or ordered per the request of a physician, to aid VMMC in the rendering of medical services. The dominant aspect of the transaction between Wallace and VMMC was the provision of a service, the use of the porta cath was merely incidental to that service. VMMC, therefore, is not a product seller of porta caths, and cannot be held liable for their defects in accordance with 52-572m et seq. VMMC's motion for summary judgment as to count two of the amended complaint is granted.
The affidavit of Margaret Sherwood (VMMC's Exhibit A) states in paragraph three that the porta cath furnished to Wallace was used "in a manner that was incidental to VMMC's primary function of providing medical services as a hospital." This paragraph states a legal conclusion, and therefore will not be considered. See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
III CONCLUSION
For the reasons set forth above, VMMC's motion for summary judgment is granted.
BY THE COURT
Peter Emmett Wiese, J.