Opinion
FSTCV146023001S
10-20-2016
Michael Mihok v. Medtronic, Inc
October 20, 2016, Filed
UNPUBLISHED OPINION
MEMORANDUM OF DECISION re MOTIONS TO STRIKE (#157.00 AND #163.00)
Kenneth B. Povodator, J.
Procedural Background
This proceeding is generally a product liability lawsuit, but as a result of the medical nature of the product, the ability to maintain the action at all is at the forefront of issues needing resolution. The plaintiff, as executrix of the injured party and in her own right claiming loss of consortium, has asserted six causes of action against the Medtronic defendants and three additional (if related) claims directed to Greenwich Hospital.
Medtronic, Inc., Medtronic Neuromodulation, a Division of Medtronic, Inc. (which as an identified-by-plaintiff division of Medtronic is claimed, by Medtronic, not to have a separate legal existence), and Medtronic Puerto Rico Operations.
Plaintiff alleges that her late husband, Michael Mihok, was injured in 2012 by a failure of his InDura 1P Model 8709 Intrathecal Catheter, a Class III prescription medical device that is part of and used in conjunction with the SynchroMed® II Programmable Drug Infusion System (the " SynchroMed® II Infusion System"). The SynchroMed® II Infusion System is a Class III medical device that treats certain medical conditions by delivering medication (in this case, baclofen) via an implanted pump and catheter directly to the " intrathecal" area where fluid flows around the spinal cord.
The plaintiff does not appear to dispute--and seemingly agrees--that the Food and Drug Administration (" FDA") approved the SynchroMed® II Infusion System--including Mr. Mihok's Model 8709 catheter--under its Premarket Approval (" PMA") process, a rigorous standard for medical devices. Under the relevant statutes as interpreted by the U.S. Supreme Court, there is both express and implied preemption of most product liability claims that might otherwise arise under state law--there is a narrow scope of parallel claims that can be asserted without running afoul of the explicit statutory preemption and the related implied preemption.
The Medtronic defendants have moved to strike all of the claims directed to them, and defendant Greenwich Hospital also has filed a motion to strike all of the claims directed to it. In the Medtronic motion (which will be the framework for almost all of the discussion that follows), the defendant contends that the plaintiff's product liability claims against Medtronic are legally insufficient--barred--and therefore should be stricken because they are expressly preempted under 21 U.S.C. § 360k(a) (to the extent they are based on state law) and impliedly preempted under 21 U.S.C. § 337(a) (to the extent they are attempting to enforce federal law regarding the device). Medtronic also contends that the plaintiff has failed to state a sufficient claim under CUTPA, and her loss-of-consortium claim must be stricken because it is merely derivative of her barred substantive claims. As noted in footnote 2, Greenwich Hospital generally adopts the same arguments in its motion to strike.
As identified below in connection with the motion filed by Greenwich Hospital, Greenwich Hospital effectively summarizes and adopts Medtronic's arguments. Therefore, except in connection with the discussion of Greenwich Hospital's motion, references to " defendant" are intended to refer to the Medtronic defendants.
Except as specific principles need to be identified, the court will not recite the well-established framework governing the court's resolution of motions to strike. See, e.g., R.S. Silver Enterprises, Inc. v. Pascarella, 148 Conn.App. 359, 364-65, 86 A.3d 471 (2014).
The plaintiff contends that she has asserted a legally-sufficient product liability claim that successfully navigates the narrow channel between the legal Scylla and Charybdis created by the U.S. Supreme Court's analysis of federal statutory preemption of product liability claims under state law with respect to regulated medical devices (express and implied preemption), that her CUTPA claim is legally sufficient, and to the extent that her consortium claim depends on the viability of the product liability claim, that claim also should survive.
Further, the plaintiff raises procedural issues relating especially to the product liability claim. The court will address the procedural issues, after first reciting the factual background based on the allegations of the operative complaint (#154.00).
Factual Background
The defendant summarizes the factual history, as recited in the complaint, as follows:
" On December 11, 2006, Mr. Mihok underwent surgery to implant the SynchroMed® II Infusion System to control muscle spasticity caused by multiple sclerosis." (Compl. ¶ 65-66.) " For several years, " the device worked " effectively, " " allowed Mr. Mihok to maintain his autonomy and independence, " and " improv[ed] Mr. Mihok's quality of life, both professionally and socially." (Id., ¶ 67.)
" On July 6, 2012, Mr. Mihok received a replacement SynchroMed® II pump due to the expected and impending expiration of the original pump's battery." (Id., ¶ 69.) The original catheter was disconnected from the expiring pump, which was explanted, and the new pump " was installed, tested and excellent initial flow of cerebrospinal fluid (CSF) was noted." (Id., ¶ 70.) The original catheter was re-sutured to the new pump and thereafter remained in Mr. Mihok's body. (Id., ¶ ¶ 69-70.)
" Within two weeks of the replacement surgery, Mr. Mihok began experiencing drug withdrawal symptoms. (Id., ¶ 71.) On July 26, 2012, a pump study conducted at Stamford Hospital showed that the replacement pump was operating properly and exhibiting " good flow, " but " a large amount of fluid was noted in the cavity surrounding the pump." (Id. ) On September 7, 2012, Mr. Mihok's doctor allegedly discovered that the original Model 8709 catheter implanted in December 2006 had fractured near the pump connection site. (Id., ¶ ¶ 69, 72.) To restore delivery of medication from the pump to Mr. Mihok's intrathecal space, his physician allegedly used a Model 8578 revision kit to attach a new, sutureless pump connector to Mr. Mihok's catheter. (Id., ¶ 73.) Following this catheter revision procedure, " regular administration of Baclofen was continued." (Id., ¶ 74.) Thus, the injuries alleged in this case stem solely from Mr. Mihok's Model 8709 catheter that was implanted in 2006, remained in Mr. Mihok's body when the pump was replaced in 2012, and was allegedly discovered to have fractured near the pump catheter port shortly thereafter. (Id., ¶ ¶ 14, 69, 72, 74.)"
On one level, the statement is correct, but it also is somewhat misleading. Paragraphs 68-69 indicate that the " expected and impending expiration" had been moved up due to perceived problems relating to the previously-expected life and function of the batteries. In other words, to the extent that this formulation of the history suggests a " normal" " expected and impending expiration, " that is not accurate (from the plaintiff's perspective).
The defendant goes on to assert that " [t]he Amended Complaint alleges no other problems with Mr. Mihok's pump or catheter."
Procedural Issues
As noted, the plaintiff directly raises some procedural issues, and others are implicated by the complaint itself.
The plaintiff's first procedural argument is that any issue of preemption cannot be raised at this time but can only be raised after a special defense is filed in which preemption is asserted. The court rejects the plaintiff's blanket contention that because preemption is a matter of defense that must be alleged by way of special defense, the issue cannot be raised by motion to strike. Identifying an issue that must be raised by special defense does not mean that it cannot be raised otherwise; it simply means that a defendant cannot rely upon a denial to raise the issue, and if not otherwise raised, it must be affirmatively asserted in a special defense; Practice Book § 10-50. Perhaps simplistically, the mere fact that it is a defense that must be alleged as a defense--later in the normal order of pleadings--does not preclude the issue being raised at an earlier stage of the proceedings.
There are a number of issues that properly are raised by special defense, but depending upon specific circumstances, can be raised by motion to strike. Thus, governmental immunity and the statute of limitations, when appropriate, can be raised and resolved via a motion to strike; see, e.g., Coe v. Board of Education, 301 Conn. 112, 116, n.4, 19 A.3d 640 (2011); Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171, 544 A.2d 1185 (1988). Similarly, other defenses often are raised by summary judgment, albeit on a different type of record, but without regard to whether a formal defense has been filed--there is no (current) requirement that a special defense be filed prior to assertion of a defense such as res judicata or collateral estoppel as a basis for summary judgment.
A less formalistic but practical approach to the " timing" of raising such issues, however, leads to a different and more substantial concern. Governmental immunity often, but not always, can be addressed by way of motion to strike, but that is dependent upon the nature of the allegations--it is more likely to be amenable to resolution by motion to strike if it involves an issue of existence or extent of duty. The same is true--and perhaps less often true--with respect to the statute of limitations, where the record must present a complete " timetable" to allow such a defense to be resolved on the pleadings, and indeed, some cases state that the plaintiff must effectively agree that the record is complete, before a statute of limitations " defense" can be resolved by way of motion to strike. Forbes v. Ballaro, 31 Conn.App. 235, 239-41, 624 A.2d 389 (1993). In other words, while the effectively absolute rule argued by the plaintiff does not exist, the ability to address defenses by way of motion to strike requires a more individualized and nuanced consideration of the nature of the defense and the completeness of the record (in a pleadings sense) for that purpose.
In the present case, the plaintiff has not conceded that the record is complete for purposes of this motion, and has contended that more extensive discovery is necessary in order to fully analyze the preemption claims asserted by the defendants. (The court notes that a number of cases cited by the defendant in its brief, including Mullin v. Guidant Corp., 114 Conn.App. 279, 287-90, 970 A.2d 733 (2009), were decided via summary judgment, i.e. on the basis of evidence actually presented to the court.) The court in this case initially deferred any action on the motions to strike until such time as some level of discovery was permitted, specifically for these purposes, but there is no suggestion that it was comprehensive, and the plaintiff contends that full discovery should be allowed prior to considering potentially dispositive motion practice. The court must recognize that the existence of any remaining factual issues, not adequately addressed in the pleadings per se, might well justify reluctance in granting a motion to strike.
An unnecessarily complicating factor is that the first 30+ pages of the complaint--ostensibly applicable to all claims and counts (under a heading " FACTUAL ALLEGATIONS APPLICABLE TO ALL COUNTS")--contains much that seemingly has nothing to do with the threshold issue of the existence of an actionable product defect (specifically an actionable claimed defect in the catheter. The court does not need to opine as to whether the allegations are wholly superfluous, but it is sufficient to note that characterization of all of the facts in those first 30+ pages as applicable to each count can only interfere with any attempt to determine the sufficiency of allegations as to any particular count (especially since all of the allegations purportedly apply to Greenwich Hospital, also).
As a ripple effect, the defendant inserted a 2 1/2-page table in its brief, identifying the claimed irrelevance of many of the allegations relating to other claimed problems with the device, as recited in the complaint.
An additional procedural issue, discussed below, is the absence of any separate analysis of the Minnesota-based claims asserted by the plaintiff against the Medtronic defendants. Absent any separate analysis, the court seemingly is compelled to apply, to the extent possible, the outcome(s) relating to Connecticut-based claims.
Controlling Legal Framework for Preemption
The plaintiff discusses Medtronic, Inc. v. Lohr, 116 S.Ct. 2240, 518 U.S. 470, 135 L.Ed.2d 700, 64 U.S.L.W. 4625 (1996), in some detail, perhaps because the decision contains broadly-permissive language relating to the interaction between state product liability claims and federal law. The problem is that that decision may have great historical and contextual relevance but little in the way of controlling influence. Rather, Riegel v. Medtronic, Inc., 128 S.Ct. 999, 552 U.S. 312, 169 L.Ed.2d 892 (2008), appears to be far more important, as in Riegel, the court discussed why situations such as the present one were to be treated as exceptions to the broader aspects of the Lohr holding. In particular, the court identified the previously referenced narrow path to a potential state law claim, applicable when, as here, the product was subject to the FDA's PMA process. In such a situation, a state law claim can only be pursued if the state law claim does not impose any new or different obligations on the manufacturer, but at the same time it cannot be the equivalent of an attempt to enforce the applicable federal statutes and regulations; there must be a parallel state-law claim. " The rule that emerges from [the Supreme Court's MDA preemption] cases is that the MDA does not preempt a state-law claim for violating a state-law duty that parallels a federal-law duty under the MDA." Williams v. Smith & Nephew, Inc., 123 F.Supp.3d 733, 741 (D.Md. 2015) (internal quotation marks and citation, omitted).
" Thus, the attributes that Lohr found lacking in § 510(k) review are present here." 552 U.S. 312, 323, 128 S.Ct. 999, 169 L.Ed.2d 892.
The defendant has cited a recent case that summarizes that concept:
The Ninth Circuit has adopted the Eighth Circuit's description of the " narrow gap" through which a plaintiff's state-law claim must fit to escape preemption by the FDCA: " The plaintiff must be suing for conduct that violates the FDCA (or else his claim is expressly preempted by § 360k(a)), but the plaintiff must not be suing because the conduct violates the FDCA (such a claim would be impliedly preempted under Buckman )." Perez v. Nidek Co., 711 F.3d 1109, 1118 (9th Cir. 2013) (quoting In re Medtronic, Inc., Sprint Fidelis Leads Prods. Liab. Litig., 623 F.3d 1200, 1204 (8th Cir. 2010)). Frere v. Medtronic, Inc., No. EDCV1502338BRODTBX, 2016 WL 1533524, at *6 (C.D.Cal., April 6, 2016) (emphasis as in cited case).
Discussion--Preemption
The plaintiff does not dispute that PMA applied to the product(s) in question such that there is a narrow window for permissible claims, but asserts that some or all of her claims manage to satisfy the narrow range allowed.
At this point, the court needs to return to the basic principles of jurisprudence applicable to motions to strike. A motion to strike can be used to challenge the legal sufficiency of a count or an entire complaint, Practice Book § 10-39, which by implication means that it cannot be used to challenge components of a count or cause of action. Thus, in a negligence claim, a motion to strike ordinarily cannot be used to challenge the legal sufficiency of a particular specification.
Section 52-572m(b) of Connecticut's Product Liability Act provides that " 'Product liability claim' includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. 'Product liability claim' shall include, but is not limited to, all actions based on the following theories: Strict 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." Section 52-572n(a), in turn, provides that " [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." The net effect of these two provisions is that claims of strict liability in tort; negligence; breach of warranty; etc., which prior to enactment of the CPLA would have been separate causes of actions and separate counts are now components of a monolithic product liability claim--essentially reduced to the rough equivalence of specifications of negligence.
A consequence of that analysis, however, is the necessity of recognition of an asymmetry, similar to that in summary judgment--in order to prevail on a motion to strike, the moving party has to demonstrate the legal insufficiency of each component of the product liability claim, whereas to defeat a motion to strike, the nonmoving party merely has to demonstrate the legal sufficiency of at least one component. If one component is legally sufficient, then the CPLA claim is legally sufficient as a count or cause of action.
Although the defendant challenges the factual specificity, the plaintiff does claim that she is asserting such narrow, parallel claims, as are permitted under Riegel . Putting aside, for the moment, the court's obligation to construe the allegations of the complaint in a manner favorable to the nonmoving party, at a minimum, the court must confront the issue of whether it is fair to hold a plaintiff to a standard of moderate to high specificity, prior to completion of discovery. Again, the court is aware that some limited discovery took place, preparatory to the filing a motion to strike, but to the extent that discovery is not actively monitored by the court, especially for content, the court does not have any way of assessing the completeness of that discovery process as may affect the ability to allege conduct in a sufficiently narrow or specific manner, as claimed by defendant to be required.
Further, some of the cases addressing preemption issues were based on more complete evidentiary records, e.g., summary judgment (explicitly stated to be after discovery), Walker v. Medtronic, Inc., 670 F.3d 569 (4th Cir. 2012). Others were addressed via motions to dismiss under the Federal Rules of Civil Procedure, under which at least some evidentiary materials might be considered, e.g. Morgan v. Medtronic, Inc., 172 F.Supp.3d 959 (S.D.Tex. 2016). Under Connecticut jurisprudence relating to the motion to strike, the court cannot entertain evidence outside the record. Liljedahl Bros. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149, 151 (1990).
It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited, however, to a consideration of the facts alleged in the complaint. A " speaking" motion to strike (one imparting facts outside the pleadings) will not be granted. Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488 (2005). (Internal quotation marks, omitted.)
Some preemption cases explicitly have recognized the need for allowances based on limited information available to a plaintiff, early on in a case.
While Simoneau's Complaint doubtless would benefit from the type of specificity suggested by the Stryker defendants, the court rejects the need for medical device-related CPLA claims to be pled with that level of detail in order to defeat a Rule 12(b)(6) motion. In so doing, the court is mindful that " much of the critical information, " including PMA specifications for a particular device, " is kept confidential as a matter of federal law" and will, therefore, be unavailable to a plaintiff without discovery. Simoneau v. Stryker Corp., No. 3:13-CV-1200 JCH, 2014 WL 1289426, at *6 (D.Conn. Mar. 31, 2014).
This court also finds that Simoneau is instructive for other purposes.
On the court's liberal reading of the Complaint, such factual allegations, together with all reasonable inferences drawn from them, suffice to state a parallel CPLA claim. Indeed, the Stryker defendants do not explain how a strict liability theory of defective manufacturing imposes duties different from or additional to the federal ones. Rather, they argue that Simoneau's allegations lack the requisite specificity to be parallel, because they do not rest on any PMA specification referring to the Trident Hip Implant itself and rely instead on broad swaths of the Code of Federal Regulations and generalized CGMPs applicable to all devices and device manufacturers. See Stryker Defs.' Mem. in Supp. of Mot. to Dismiss (" Stryker Defs.' Mem.") (Doc. No. 15-1) at 15-19; Stryker Defs.' Reply (Doc. No. 57) at 4-6. Simoneau v. Stryker Corp., No. 3:13-CV-1200 JCH, 2014 WL 1289426, at *6 (D.Conn. Mar. 31, 2014).
The defendant has acknowledged that there is a split of authority relating to CGMP-based claims and preemption (#158.00 at page 25), and an absence of Connecticut authority on point. The court must also take into account considerations identified but deferred to this point, other factors previously identified but not tied into the disposition of this motion. Simoneau as well as cases indirectly alluded to by the defendant at least suggest that CGMP-based claims may have viability, and even with initially-non-specific allegations. The fact that the court acted on a more detailed presentation of the claim in McConologue v. Smith & Nephew, Inc., 8 F.Supp.3d 93, 105-06 (D.Conn. 2014), is of limited value in determining the appropriate approach in the absence of such greater specificity. (That seems to make Simoneau potentially of greater value as a guide.)
To the extent that the defendant is concerned about the jury's ability to resolve issues relating to CGMP claims consistent with preemption standards (" Given CGMPs' lack of specificity, imposing liability under Connecticut law based on an alleged CGMP violation would necessarily require a jury to apply its own ad hoc interpretation of the CGMP, " (#158.00 at page 27)), the reliance on (reference to) Horn v. Boston Science Neuromodulation Corp., No. CV409-074, 2011 WL 3893812 (S.D.Ga. Aug. 26, 2011), is helpful (if not in the way intended)--because Horn was a summary judgment decision which therefore allowed consideration of the issues on a more complete record.
The court is constrained by the allegations of the complaint, given a broad/liberal interpretation. There has been limited discovery. Aside from the technical rules, at this early stage, the court is not inclined to address each individual theory of the singular statutory product liability claim as to viability--something that the court will need to do at some point, but preferably on a more complete record. The court has no delusions--the denial of this aspect of the motion to strike will inevitably be followed by a motion for summary judgment. The issue at that time, however, will not be what might conceivably be proved under the allegations of the complaint but rather what proof actually is available.
Accordingly, the motion to strike the CPLA-based first count, based on express and implied preemption, is denied.
CUTPA
The court must confess to having difficulty understanding plaintiff's argument and even the seemingly critical allegation of harm: " As a result of Defendants' misrepresentations and nondisclosures, Plaintiffs paid a higher price for the product than he otherwise would have, if he had paid anything at all." (¶ 207.) The reference to " if he had paid anything at all" is cryptic at best, and not explained in the plaintiff's opposition papers.
The focus of attention is on an allegedly defective catheter, which was part of an apparatus or system; is the plaintiff stating that he would not have purchased the device, but for the claimed misrepresentations? How did the alleged misrepresentations have any bearing on the price for the product--whether focusing on the entire system or just the catheter?
It appears that the plaintiff has borrowed language from Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 129-31, 818 A.2d 769 (2003), seemingly giving talismanic qualities to the incantation that there was a higher price. In Gerrity, however, there were factual recitations as to how there was a cause-and-effect relationship between the claimed misconduct and pricing, set forth in some detail in footnote 10. (263 Conn. 120, 130, 818 A.2d 769.) There were allegations that the identified conduct inflated both the price and the demand for the product, which in terms of individual financial injury would mean that consumers were led to buy more of the product and at a higher price, thereby establishing an ascertainable loss. And, it had to be separate from the defective nature of the product at issue.
There is no counterpart here other than an at-best conclusory " paid a higher price than he otherwise would have." In the context of a claim under CPLA, there must be something other than the product's defective quality that drives the CUTPA claim, Gerrity; cf. Hurley v. The Heart Physicians, P.C., 278 Conn. 305, 898 A.2d 777 (2006)--or is the plaintiff contending that every claimed failure (or claimed premature failure) of a product constitutes an ascertainable loss for purposes of CUTPA analysis? If every claim of " I wouldn't have bought it if I had known of its defective nature" or " I had to replace/repair it prematurely" constituted an ascertainable loss in the context of a product liability claim, Gerrity would have been unnecessary (or far more abbreviated).
This is but the tip of the iceberg with respect to CUTPA. To the extent that there is reliance on claimed misrepresentations, there is no allegation that the plaintiff's decedent was aware of the alleged misrepresentations or that there was any reliance on them. Can there be a CUTPA-based claim of misrepresentation in the absence of knowledge and reliance (either direct or through a representative)?
The plaintiff will have the opportunity to plead over, if she so chooses, but the court cannot conclude that the CUTPA claim, as presently articulated, is legally sufficient. The motion is granted as to the plaintiff's CUTPA claim.
Minnesota Law
As noted earlier, the defendant does not undertake a separate analysis of the claims based on Minnesota law, instead merely referring to those claims in introductory and concluding passages of the brief. For purposes of this motion, the court must treat the defendant's preemption analysis under Connecticut as directly applicable to these Minnesota claims, absent some effort at identifying distinguishing characteristics of the legal landscape. Therefore, the court has no basis for determining that the Minnesota claims are legally insufficient, particularly since the court is limited to consideration of the grounds articulated in the motion, i.e. preemption.
For example, the analysis of the CUTPA claim relies on specific provisions of the Act, in the context of preemption. The defendant has not identified any corresponding provisions under Minnesota law that might mandate a similar outcome. " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commissioner, 182 Conn. 138, 140, 438 A.2d 27 (1980).
Loss of Consortium
The parties appear to be in agreement that, given the derivative nature of a claim of loss of consortium, the viability of the loss of consortium claim in this case follows (is dependent upon) the viability of the underlying claims, chiefly the product liability claims. To the extent that the court has denied the motion to strike the product liability claim, the attempt to strike the loss of consortium claim also must fail.
Greenwich Hospital Claims
In moving to strike so much of the complaint as is directed to it, defendant Greenwich Hospital effectively has adopted the arguments of the Medtronic defendants. Specifically, Greenwich Hospital has adopted, in summary form, the preemption arguments set forth in greater detail in the Medtronic's submission, and also has adopted in summary fashion the claimed insufficiency of the CUTPA and loss of consortium claims. Absent separate analysis, the court's decision must be the same, i.e., the plaintiff has asserted a legally-sufficient CPLA claim but has not asserted a legally sufficient CUTPA claim. Again, the derivative nature of the claim of loss of consortium means that the loss of consortium claim must be deemed legally sufficient, at least with respect to the product liability claim.
Conclusion
As previously noted, the court recognizes that there is a high likelihood that there will be a motion for summary judgment filed by Medtronic, and it is likely that there will also be a similar motion filed by Greenwich Hospital. At that point, the court is more likely to be willing to entertain a request that the court evaluate, separately, the viability of the different claimed theories of liability under the Connecticut Product Liability Act as asserted by the plaintiff. At some point, given the legally-constrained parameters for permissible product liability claims in the medical field and the likely complexity of the evidence, the court may need to allow the interests of justice and efficiency to take precedence over the presumption that various motions can only operate at the count or cause-of-action level; Practice Book § 1-8.
Less clear is whether the plaintiff will attempt to plead-over with respect to the CUTPA claims that have been stricken. If the plaintiff chooses to do so, the court directs the plaintiff to plead separately any loss of consortium claim that may be predicated upon a Gerrity -compliant CUTPA claim, rather than combining two derivative consortium claims into a single count (i.e. one for the Medtronic defendants and one for Greenwich Hospital) as currently presented. By granting the motion to strike with respect to the CUTPA claim, the court has effectively if not technically severed the two consortium claims (removing the CUTPA-based aspect of the consortium claim as to each defendant), and the court believes that if the plaintiff chooses to attempt to reassert a CUTPA-based consortium claim, it be done via a separate count (per defendant).
The court must evaluate the motion to strike in a relatively tight context. The court can only consider issues specifically raised in the motion by the moving party. The court must give the nonmoving party the benefit of all reasonable inferences. The court is considering not evidence/facts actually available (or present) but rather evidence/facts that might conceivably exist and be submitted. The court must recognize the incompleteness of the opportunity for the plaintiff to obtain possibly-essential facts that could be alleged, based on the incomplete status of discovery, and the corollary (correctly observed by the plaintiff) that the plaintiff is under no obligation to anticipate and negate all possible defenses when formulating a complaint.
For all of these reasons and subject to the foregoing considerations, the motions to strike are granted as to the CUTPA claims, and denied in all other respects.