Opinion
No. HHD X04 CV-07-5023921 S
January 24, 2011
MEMORANDUM OF DECISION
This product liability matter is before the court concerning the defendant Smith Nephew, Inc.'s motions to preclude affidavits (#204) and for summary judgment (#189). The court heard oral argument on January 5, 2011.
I Background
In their two-count complaint, which is premised on the Connecticut Product Liability Act, General Statutes § 52-572m et seq., the plaintiffs allege that Robert Wegryn (Wegryn) suffered serious physical injuries as a result of the October 2005 implantation of a knee replacement system which was manufactured by the defendant, known as a Genesis II Total Knee Replacement System. The plaintiffs allege that the biconvex patellar component, which was part of the knee replacement system, was defective, including allegations of defective design and manufacture, failure to warn, breach of statutory warranty of merchantability, and breach of implied warranty of merchantibility and fitness. In the second count, on the same bases, Wegryn's wife brings a derivative loss of consortium claim.
Additional references to the background are discussed below.
II Discussion
A. Motion To Preclude
In the motion to preclude, Smith Nephew seeks to preclude certain opinions which are expressed in the affidavits of Alan S. Litsky and Robert M. Rose, two of plaintiffs' experts, which were submitted in opposition to Smith Nephew's motion for summary judgment, claiming that these opinions are outside the scope of their experts' disclosures and their deposition testimony. In response, the plaintiffs contend that the opinions expressed are within the scope of the disclosures and parts thereof were covered in the depositions.
Since this matter was commenced in 2007, former Practice Book § 13-4, as it existed prior to recent amendments, governs the scope of expert disclosure. "Practice Book § 13-4(4) plainly requires a plaintiff to disclose: (1) the name of the expert witness; (2) the subject matter on which the expert is expected to testify; (3) the substance of the facts and opinions to which the expert is expected to testify; and (4) a summary of the ground for each opinion." (Internal quotation marks omitted.) Klein v. Norwalk Hospital, 299 Conn. 241, 251, 9 A.3d 364 (2010).
Practice Book § 13-4(i) clarified that the version of the rule which was in effect on December 31, 2008 applies to cases commenced on or before that date.
"The purpose of Practice Book § 13-4(4) is to assist the parties in the preparation of their cases, and to eliminate unfair surprise by furnishing the opposing parties with the essential elements of a party's claim." Wyszomierski v. Siracusa, 290 Conn. 225, 234, 963 A.2d 943 (2009).
"[A] disclosure generally complies with the requirements of Practice Book § 13-4(4) so long as it adequately alerts the defendant to the basic nature of the plaintiff's case." Klein v. Norwalk Hospital, supra, 299 Conn. 252-53. "This court never has articulated a requirement that a disclosure include an exhaustive list of each specific topic or condition to which an expert might testify as the basis for his diagnosis; disclosing a categorical topic such as `causation' generally is sufficient to indicate that testimony may encompass those issues, both considered and eliminated, necessary to explain conclusions within that category." Id., 252. Similarly, a disclosure may also "implicitly" indicate that the expert may testify about what was not involved in causation. See Id.
1. Dr. Litsky
Smith Nephew seeks to strike paragraphs 12, 13, 14, 19, 20, and 22-32 of Dr. Litsky's affidavit. In paragraphs 12, 13, 14, 19, and 20, Dr. Litsky offers opinions about the forseeability of cement failure, the feasibility of increasing the radius of curvature of the patellar peg, which is part of the knee replacement system, and the cracking of the peg. In the disclosure concerning his opinions, page 1, the plaintiffs stated, in relevant part, that he "is of the opinion that the product failed due to a surface quality defect in the manufacturing process of the patellar component which ultimately led to a fatigue. This, coupled with a failure of the cement, placed an unacceptable stress on the patellar peg. The stress load was certainly forseeable and failure could have been avoided had the product contained an appropriate radius at the base of the patellar peg."
Thus, the disclosure discussed a forseeable stress load, cement failure, and the designed radius. The disclosure was sufficiently broad to encompass the opinions contained in paragraphs 12, 13, 14, 19, and 20. In addition, in his deposition, page 48, Dr. Litsky also stated that he thought that cement failure was forseeable and not unexpected. Also, at his deposition, he testified about another component, in a different knee replacement system, with a greater radius of curvature at the base of the peg. See Litsky deposition, pp. 100-01.
In paragraphs 22-32 of his affidavit, Dr. Litsky discusses his post-deposition review of adverse event reports filed with the United States Food and Drug Administration. In paragraph 32, Dr.Litsky opines that cement failure and at least one specific incident of shearing of the peg were actually known to Smith Nephew before implantation in Robert Wegryn occurred.
The subject matter of these paragraphs (22-32) of his affidavit falls generally within the scope of his disclosure, discussed above. The information in the adverse event reports is open to the public and Smith Nephew does not claim to be surprised by it. The fact that Dr. Litsky did not do the research until after his deposition does not make his opinions beyond the scope of his disclosure. The plaintiffs have shown neither undue prejudice nor bad faith delay of disclosure. See former Practice Book § 13-4(4). Preclusion of these opinions from his affidavit is not warranted.
2. Dr. Rose
Smith Nephew seeks to strike paragraph 15 from Dr. Rose's affidavit of September 29, 2009 and paragraph 4 from his affidavit of November 5, 2010. These concern forseeability of cement fracture and the negligible cost of increasing the radius of curvature. Smith Nephew asserts that these opinions are beyond his disclosure, report, and deposition testimony.
The September 2009 affidavit was submitted in opposition to Smith Nephew's first motion for summary judgment, which was withdrawn. No motion to preclude or strike part of Dr. Rose's affidavit was filed when the first motion for summary judgment was pending.
In his report, dated July 23, 2007, page 3, Dr. Rose discussed cement failure as it related to the radius. Similarly, in his deposition, page 163, he discussed the reasonable probability of cement failure.
Also, in his September 2009 affidavit, paragraph 18, Dr. Rose stated that increase of the radius was feasible and relatively easy to machine. Paragraph 4 of the November 2010 affidavit expands on this opinion, adding that the cost would be negligible. This opinion is within the scope of his disclosure. In his report, pages 3 and 4, he attributes failure to the lack of an appropriate radius. See Klein v. Norwalk Hospital, supra, 299 Conn. 252-53.
Accordingly, the motion to preclude or strike the above-cited paragraphs from Dr. Rose's affidavits is denied.
B. Summary Judgment
1. Standard of Review
"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 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.) Rodriguez v. Testa, 296 Conn. 1, 6-7, 993 A.2d 955 (2010).
"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.) Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).
"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." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
2. Proximate Cause
The Supreme Court has set forth the elements of a product liability claim. "[T]he 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 support of its motion for summary judgment, Smith Nephew argues that no reasonable person could conclude that the alleged design and manufacturing defects caused Mr. Wegryn's claimed injuries. It asserts that each of the plaintiffs' experts conceded that the bone cement which was intended to be used with the biconvex patellar component fractured before the peg and that the peg would have remained intact but for the fracture of the cement. Accordingly, Smith Nephew contends that the failure of the bone cement was the sole proximate cause of the failure of the patellar component.
In support of this argument, Smith Nephew relies on General Statutes § 52-572p, which provides, "(a) A product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party unless: (1) The alteration or modification was in accordance with the instructions or specifications of the product seller; (2) the alteration or modification was made with the consent of the product seller; or (3) the alteration or modification was the result of conduct that reasonably should have been anticipated by the product seller. (b) For the purposes of this section, alteration or modification includes changes in the design, formula, function or use of the product from that originally designed, tested or intended by the product seller."
Smith Nephew argues that the peg primarily is designed as a guide to surgical placement of the patellar component, provides minimal resistance to shearing forces when cement is properly applied, and that the cement absorbed the bulk of the shearing forces until it fractured, transferring the load to the peg. According to Smith Nephew, this caused the peg to function as the primary means of stabilizing the patellar component, which constitutes a significant alteration or modification of its function. Accordingly, it argues that the plaintiffs must prove that the harm would have occurred notwithstanding the claimed alteration or modification of the peg's function.
A genuine issue of material fact concerning proximate cause is presented. "[A] manufacturer's liability is limited only if the subsequent alteration or modification breaks the chain of causation, akin to an intervening superseding cause in negligence law . . . In other words, a manufacturer could still be liable because the original defect, although not the sole cause of the accident, would constitute a contributing or concurrent proximate cause in conjunction with the subsequent alteration . . . Accordingly, § 52-572p acts to limit a manufacturer's liability if the alteration or modification was the sole proximate cause of a plaintiff's injury." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 233-34.
"`Proximate cause is ordinarily a question of fact.' Coburn v. Lenox Homes, Inc., 186 Conn. 370, 384, 441 A.2d 620 (1982)." Gurguis v. Frankel, 93 Conn.App. 162, 168, 888 A.2d 1083, cert. denied, 277 Conn. 916, 895 A.2d 789 (2006). "It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier of fact." (Internal quotation marks omitted.) Ludington v. Sayers, 64 Conn.App. 768, 773-74, 778 A.2d 262 (2001).
As set forth above, § 52-572p(a)(3) provides that liability may not be avoided where "the alteration or modification was the result of conduct that reasonably should have been anticipated by the product seller." In his affidavit, paragraph 14, Dr. Litsky stated that cement failure was entirely forseeable. As to forseeability, Dr. Rose stated, in paragraph 15 of his 2009 affidavit, "[c]ement failure, also known as loosening, is known to occur in cemented prostheses of all kinds."
Thus, according to the plaintiffs' experts, cement failure, which Smith Nephew claims was a significant alteration or modification of function, should have been anticipated. This presents a material issue of fact as to proximate cause.
3. Unreasonably Dangerous
Smith Nephew also argues that the patellar component was not unreasonably dangerous. It contends that the court may find, as a matter of law, that a reasonable consumer would not find its product to be unreasonably dangerous.
An "unreasonably dangerous" product has been defined as one "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.) Giglio v. Connecticut Light Power Co., 180 Conn. 230, 234, 429 A.2d 486 (1980) (citing Comment i of the Restatement (Second) of Torts, § 402A).
"[T]here may be instances involving complex product designs in which an ordinary consumer may not be able to form expectations of safety . . . In such cases, a consumer's expectations may be viewed in light of various factors that balance the utility of the product's design with the magnitude of its risks." (Citations omitted.) Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 219-20. "[T]he relevant factors that a jury may consider include, but are not limited to, the usefulness of the product, the likelihood and severity of the danger posed by the design, the feasibility of an alternative design, the financial cost of an improved design, the ability to reduce the product's danger without impairing its usefulness or making it too expensive, and the feasibility of spreading the loss by increasing the product's price." (Emphasis in original.) Id., 221.
"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., supra, 241 Conn. 225.
The circumstances under which Wegryn allegedly was injured present different issues than those which were before the court in Hughes v. Ford Motor Co., 677 F.Sup. 76, 85 (D.Conn. 1987), cited by Smith Nephew. There, prior to Potter v. Chicago Pneumatic Tool Co., supra, the court decided, as a matter of law, that a jury could not find that the absence of an airbag in a car which had a three-point seat belt and an integrated ignition interlock system made the vehicle unreasonably dangerous. "[O]nly a minute fraction of the 1974 model year cars came equipped with air bags." Id. An ordinary consumer "could not possibly have contemplated the presence of air bags." Id.
Likewise, Koger v. Synthes North America, Inc., United States District Court, Docket No. 3:07-CV-01158 (WWE) (D.Conn. December 17, 2009), 2009 WL 5110780 *2, is unpersuasive. There, in a case involving surgical implantation of screws, which the court determined were medical devices outside of the ordinary consumer's common knowledge, the modified consumer expectation test was found to apply. However, the plaintiff had no expert testimony as to whether the screw presented an unreasonably dangerous condition or as to causation. As a result, the court concluded that the plaintiff could not "adduce sufficient proof of her claim to survive summary judgment." See Id., *3. Here, in contrast, the plaintiffs have disclosed experts and provided affidavits from them.
Smith Nephew also relies on several cases which were decided under Pennsylvania law. As explained in Kagan v. Harley Davidson, Inc., United States District Court, Civil Action No. 07-0694 (E.D.Pa. August 20, 2008), 2008 WL 3874824 *6, "[i]n Pennsylvania, the threshold determination in strict liability claims for defective design is whether the product is `unreasonably dangerous.' . . . The judge makes this determination prior to trial . . . When determining whether a product is unreasonably dangerous, the judge must engage in a risk-utility analysis, weighing a product's harms against its social utility . . . This risk-utility analysis determines whether a product's condition justifies placing the risk of loss on the supplier . . . [T]he question for the court to determine is whether the evidence is sufficient, for purposes of the threshold risk-utility analysis, to conclude as a matter of law that the product was not unreasonably dangerous, not whether the evidence creates a genuine issue of fact for the jury." (Citations omitted; internal quotation marks omitted.)
Pennsylvania law is not applicable here. As explained above, the Connecticut Supreme Court has not adopted a procedure involving a trial court threshold risk-utility determination.
To the contrary, it has expressly stated, as set forth above, that whether a product is unreasonably dangerous is a question of fact to be determined by the jury. See Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 225.
Here, Smith Nephew has presented evidence showing that over 100,000 similar devices were safely implanted in other individuals. Apparently, only a very few were unsuccessful. In Connecticut, "[a] party has the same right to submit a weak case as he has to submit a strong one." (Internal quotation marks omitted.) Musorofiti v. Vlcek, 65 Conn.App. 365, 373, 783 A.2d 36, cert. denied, 258 Conn. 938, 786 A.2d 426 (2001).
Since the issue as to whether the product was unreasonably dangerous is for the jury, the court may not grant summary judgment. The court's analysis applies to both counts, since, as stated above, the second count, for loss of consortium, is a derivative claim.
In addition, as noted above, the plaintiffs' theories are premised on General Statutes § 52-572m et seq. General Statutes § 52-572n(a) provides, in relevant part, "[a] product liability claim as provided in Sections . . . 52-572m to 52-572q, inclusive . . . 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."
Since the Supreme Court has stated, in Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 214, that the elements of a product liability claim include that the plaintiff must prove that the product was in a defective condition unreasonably dangerous to the consumer or user and, since summary judgment may not be granted as to that aspect of the claims, the court need not consider other aspects of Smith Nephew's motion, concerning manufacturing defects, warnings, and warranty.
CONCLUSION
For the foregoing reasons, Smith Nephew's motion to preclude is denied and its motion for summary judgment is denied. It is so ordered.