Opinion
No. CV07 5013243S
March 5, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#104)
FACTUAL BACKGROUND
The plaintiff Robert Wegryn had knee replacement surgery in which a knee replacement system manufactured by the defendant Smith Nephew, Inc. was used. On July 27, 2007, the plaintiff brought a products liability action against the defendant claiming that the product was defective. Specifically the plaintiff alleges the defendant: failed to adequately design, manufacture, assemble, label and market the product; failed to properly test and/or inspect an inherently unsafe and unreliable system; failed to warn of immediate hazards and dangers; breached its statutory warranty of merchantability and its implied warranty of merchantability and fitness for a particular purpose; and that it failed to use safer alternative designs that were available.
By way of Answers and Special Defenses the defendant denied liability and presented eleven (11) special defenses. On December 19, 2007, the plaintiff filed a Motion to Strike the special defenses. On January 9, 2008, the defendant filed a Memorandum of Law in Opposition to Plaintiffs' Motion to Strike Special Defenses, in which the defendant withdrew six (6) of the special defenses previously raised.
The Court will discuss seriatim the Motion to Strike vis-a-vis the remaining five (5) special defenses and the reason for the Court's decision granting or denying the plaintiffs' motion for each special defense.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). By contrast, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. "If it is apparent from the face of the complaint that a municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and [may] attack the legal sufficiency of the complaint through a motion to strike." Brown v. Branford, 12 Conn.App. 106, 111, fn.3 (1987).
LEGAL ARGUMENT First and Tenth Special Defenses
The plaintiff's motion to strike the First Special Defense, which after amendment reads: Plaintiffs' claims are barred in whole or in part by the learned intermediary or informed intermediary, will be considered in conjunction with the plaintiff's motion to strike the Tenth Special Defense. Defendant's Tenth Special Defense, which after amendment reads: Plaintiff's claims are barred pursuant to Comment (k) Exception to Strict Tort Liability as defined by § 402A of the Restatement (Second) of Torts. Both parties have stated in their briefs that learned intermediary and informed intermediary doctrines are akin to each other and can be argued as one.
Comment (k) to section 402a of the Restatement (Second) "Unavoidably unsafe products," provides in relevant part: "The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk."
Plaintiff argues that the learned intermediary doctrine and section 402A of the Restatement (Second) of Torts, comment (k) only apply to unavoidably unsafe products, and that if properly made, a knee replacement system cannot be accurately considered an inherently unsafe product. Plaintiff further claims that even if applicable, comment (k) does not establish a bar to recovery and therefore is not a valid special defense. The defendant asserts that the learned intermediary doctrine is appropriately raised against a product liability suit for failure to warn regarding a prescription medical device, especially when the plaintiff alleges the product was "inherently unsafe."
Plaintiff correctly noted that "[t]he learned intermediary doctrine applies particularly to the medical field, and generally involves unavoidably unsafe products; see 2 Restatement (Second) § 402A, comment (k); which by law can go from the manufacturer to the ultimate user only by way of a prescribing physician." Vitanza v. Upjohn Co., 257 Conn. 365, 390 (2001). In Vitanza, the Court distinguished between the learned intermediary doctrine and the sophisticated user doctrine by focusing on the "highly personal doctor-patient relationship and the fact that the product can be obtained legally only from a physician." Vitanza, 257 Conn. at 391. "The learned intermediary doctrine provides that adequate warnings to prescribing physicians obviate the need for manufacturers of prescription products to warn ultimate consumers directly . . . based on the principle that prescribing physicians act as learned intermediaries between a manufacturer and consumer and, therefore, stand in the best position to evaluate a patient's needs and assess [the] risks and benefits of a particular course of treatment." Hurley v. Heart Physicians, P.C., 278 Conn. 305, 316 (2006) (quoting Guevara v. Dorsey Labs., Div. of Sandoz, Inc., 845 F.2d 364, 367 (1st Cir. 1988)). The policy reasons for allowing the learned intermediary doctrine under comment (k) has been to allow manufacturers of prescription medical products, in terms of product liability, to satisfy their duty to warn by providing the prescribing doctor with adequate warnings based on the doctor-patient relationship.
Connecticut adopted comment (k) to § 402A of the Restatement (Second) of Torts, concluding that the policy considerations underlying comment (k) are consistent with the state's product liability jurisprudence. Vitanza, supra at 376. Comment (k) supports the policy reasons for finding certain products not to be defective for product liability purposes based on the benefit they provide for society by being available, despite the inherent risks involved in their use. Vitanza, 257 Conn. at 377. The learned intermediary doctrine applies particularly to the medical field because prescription drugs and implantable devices are often incapable of being rendered harmless for all users due to medicine's inability to identify and eliminate all possible negative side effects for treatments that overall provide beneficial products for society. As such, the learned intermediary doctrine may constitute a bar to recovery in a product liability suit for a claim of failure to warn when the product is "properly prepared, and accompanied by proper directions and warning[s]." Vitanza, 257 Conn. at 375. By pleading a special defense pursuant to § 402A of the Restatement (Second) of Torts, comment (k) exception to strict tort liability, defendant satisfies the fundamental purpose of a special defense by apprising the plaintiff of an issue to be raised at trial.
Although initially the learned intermediary doctrine was associated with prescription drugs, the courts have since applied the doctrine to a variety of implantable medical devices. Hurley, 278 Conn. at 317. The Court in Hurley found "no principled reason to distinguish between a prescription implantable medical device like a pacemaker and a prescription drug." Id. As with prescription drugs, the knee replacement system, a complex medical device, is only available to end consumers through a physician. There is no principled reason why the manufacturer of such a device should not rely upon the physician to provide warnings to the consumer so long as it gives appropriate warnings directly to the physician.
Although Connecticut courts have not specifically applied the learned intermediary doctrine to implantable knee replacement devices, other jurisdictions have. Soufflas v. Zimmer, Inc., 474 F.Sup.2d 737, 750 (E.D.Pa. 2007) (court extended learned intermediary to cover medical implants including a knee replacement component); Yanovich v. Sulzer Orthopedics, Inc., 2006 WL 3716812, *12 (N.D.Ohio 2006) (applied the learned intermediary doctrine in a failure to warn claim against the manufacturer of a knee replacement system).
The Court concludes that there is no persuasive reason to distinguish between a prescription implantable medical device and prescription drugs when raising the learned intermediary doctrine based on Section 402A, of the Restatement (Second) of Torts comment (k), in defense of a product liability claim for failure to warn. Therefore, plaintiff's Motion to Strike the First and Tenth Special Defenses are denied.
Third Special Defense
The plaintiff moved to strike the Third Special Defense, which reads: " Plaintiff has failed to mitigate the alleged damages and, therefore, any recovery should not include alleged damages that Plaintiff could have avoided by reasonable care and diligence." The plaintiff argues that failure to mitigate damages is not a valid special defense because it is not among those listed in the Practice Book § 10-50, and it does not allege that the plaintiff has no cause of action. Both parties correctly note that there is a split in authority as to whether failure to mitigate damages is a legally sufficient special defense.
Plaintiff is correct that failure to mitigate is not one of the enumerated special defenses in section 10-50 of the Practice Book, but limiting special defenses to only those enumerated misses the fundamental purpose of a special defense. A special defense "apprise[s] the court and opposing counsel of the issue to be tried, so that basic issues are not concealed until trial is underway." Coughlin v. Anderson, 270 Conn. 487, 501 (2004). Raising the issue of mitigation of damages as a special defense also clarifies the general denial by informing the plaintiff that the defendant "seeks to be benefitted by a particular matter of fact, and he should, therefore, prove the matter alleged by him . . . [which] requires him to prove an affirmative fact." Preston v. Keith, 217 Conn. 12, 16 (1991). Allowing the defendant to plead this special defense places the burden of proof on the defendant to produce affirmative evidence supporting a failure to mitigate defense. The shift in burden of proof and persuasion from the plaintiff to the defendant for failure to mitigate is consistent with the shift in burden for those special defenses listed in the Practice Book.
The Supreme Court of Connecticut implicitly found failure to mitigate to be a valid special defense in Preston v. Keith, when the Court distinguished that case from a prior case stating, "Because the defendant in the present case has not pleaded mitigation of damages as a special defense, Wassell does not control." Preston v. Keith, 217 Conn. 12, 22 (1991). Connecticut Appellate Court also implied that failure to mitigate damages is a valid affirmative defense when that court held that the defendant was entitled to a jury charge of mitigation of damages because he asserted it as a special defense and produced some evidence to support the claim. Mauro v. Yale-New Haven Hosp., 31 Conn.App. 584, 593-94 (1993); see also, Bates v. Rebimbas, 2006 Conn. Super.LEXIS 2794, *6 (Conn.Super.Ct. 2006) [42 Conn. L. Rptr. 51].
Based on the fundamental purpose of a special defense to apprise the plaintiff of the issues to be tried, and that a defense of failure to mitigate places the burden of proof on the defendant, this court is persuaded that the special defense of "mitigation of damages" is a proper special defense.
Sixth Special Defense
The plaintiff moved to strike the Sixth Special Defense, which reads: " Smith Nephew specifically pleads all Special Defenses under the Uniform Commercial Code now existing or which may arise in the future, including, but not limited to, those defenses provided by UCC §§ 2-607." Plaintiff argues that defenses under the Uniform Commercial Code (UCC) are inapplicable to this case because the UCC only applies to commercial transactions and does not govern a transaction between manufacturer and an individual consumer. In addition plaintiff argues, and defendant agrees, that the Supreme Court of Connecticut in Rossignol v. Danbury School of Aeronautics, Inc., held that when bringing a product liability claim, it is unnecessary to allege or prove compliance with the UCC. Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 561 (1967). Defendant argues that since courts in product liability claims often borrow elements establishing a cause of action for breach of warranty from the UCC, the defendant should be afforded the option to raise special defenses allowed under the UCC.
As pleaded by the defendant, raising all special defenses allowed under the UCC is insufficient because it does not fully apprise the plaintiff of exactly what defense is claimed. Defendant correctly argues that Connecticut courts have looked to the UCC to identify elements of a product liability action when the Connecticut Product Liability Act (CPLA) is silent on the elements for a cause of action, Lamontagne v. E.I. Du Pont de Nemours Co., 834 F.Sup. 576, 594-95 (D.Conn. 1993), but the courts have also looked to judicial opinions as well. Id. at 595. The use of the UCC to help identify elements in a claim suggest that defenses associated with that portion of the UCC would also be valid, but the specific UCC defenses must be stated, just as a defendant must specify what defenses are being asserted based on precedent as opposed to simply stating that all defenses available under judicial precedent are asserted.
Irrespective of where a court obtains the elements for a cause of action, if a defendant wishes to raise a special defense, the defendant must sufficiently plead the basis for that defense. UCC § 2-607 is inapplicable as a special defense in this case, and reference to all defenses under the UCC now existing or which may arise in the future is insufficient to apprise the plaintiff of exactly what defense is being raised. Apprising the plaintiff of exactly what issue is to be raised at trial is the fundamental purpose of a special defense, therefore Plaintiff's motion to Strike the Sixth Special Defense is granted.
Eighth Special Defense
The plaintiff moved to strike the Eighth Special Defense, which reads: " All acts of Smith Nephew at the time of the alleged manufacture, sale, and/or distribution of the product at issue were in conformity with the state-of the-art at such times and, therefore, any recovery by Plaintiff is barred." Plaintiff argues that a state-of-the-art defense, even if proven would not provide a complete bar to plaintiff's recovery since plaintiff claims more than just failure to warn, as well as claiming that allowing state-of-the-art as a special defense would impermissibly shift the fact finder's focus from the product to the defendant's conduct.
Both parties correctly note that the state-of-the-art defense has been recognized as proper when the alleged defect in the product stems from a failure to warn. Sylvian v. Madison's, Inc., 7 Conn. L. Rptr. 584, 585 (Nov. 10, 1992). Although plaintiff claims more than just failure to warn in the complaint, plaintiff is incorrect in arguing that a special defense is insufficient unless it provides a complete bar to recovery. An appropriate special defense can be raised by the defendant to address any or all of the allegations claimed, and does not need to provide a complete bar to recovery against all allegations to be a valid special defense. Defendant correctly argues they have a right to assert a state-of-the-art defense in response to plaintiff's allegation of failure to warn contained in the complaint, paragraph 9 subsections (d) and (l).
Plaintiff also argues that allowing a state-of-the-art defense in a product liability case impermissibly shifts the jury focus from the product, to the manufacturer's conduct. The Supreme Court of Connecticut in Potter v. Chicago Pneumatic Tool Co., expressly rejected this argument and held that Connecticut Courts "adopt the majority view and hold that such [state-of-the-art] evidence is relevant and assists the jury in determining whether a product is defective and unreasonably dangerous." Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 249 (1997). Therefore the plaintiff's Motion to Strike the Eighth Special Defense is denied.
Conclusion
The plaintiff's motion to strike the First, Third, Eighth and Tenth Special Defenses is denied. The motion to strike the Sixth Special Defense is granted.