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Theodore v. Lifeline Systems Co.

Court of Appeals of Connecticut

May 23, 2017

DIANA THEODORE, ADMINISTRATRIX (ESTATE OF CATHERINE NUCKOLS)
v.
LIFELINE SYSTEMS COMPANY ET AL.

          Argued Date: January 17, 2017

         Appeal from Superior Court, judicial district of Hartford, Elgo, J.[motions for directed verdict and to set aside verdict; judgment].

          Maria K. Tougas, for the appellant (plaintiff).

          Trevor J. Keenan, for the appellee (named defendant).

          Sharon Baldwin, for the appellee (defendant VNA Healthcare, Inc.).

          Keller, Prescott and Harper, Js.

          OPINION

          KELLER, J.

         The plaintiff, Diana Theodore, the administratrix of the estate of Catherine Nuckols, commenced the present action sounding in negligence, breach of contract, and products liability against the defendants, Lifeline Systems Company (Lifeline) and VNA Healthcare, Inc. (VNA).[1] The plaintiff appeals from the judgment of the trial court rendered in favor of the defendants after it granted motions for a directed verdict brought by the defendants. Also, the plaintiff appeals from the court's denial of her motion to set aside the verdict. The plaintiff claims that (1) in ruling on the motions for a directed verdict, the court erroneously concluded that she failed to present evidence sufficient to satisfy the essential element of causation, [2]and (2) the court erroneously precluded certain evidence. We affirm the judgment of the trial court.

         Relevant to all three counts of the underlying complaint are the plaintiff's allegations that, in 2010, the plaintiff's decedent, Catherine Nuckols, executed service agreements with VNA, a company that was in the business of providing independent living services to residents of the Greater Hartford area. By these agreements, the decedent subscribed to receive home medical alert system services through Lifeline for a monthly fee. Thereafter, VNA installed a Lifeline 6800XT medical alert system at the decedent's Glastonbury residence. The system consisted of a communicator device and a personal help button that was designed to be worn by the user. The communicator device was connected to the decedent's living room telephone by a piece of equipment described as ‘‘a splitter.'' When the system is functioning properly, and either the personal help button worn by the user or a help button located on the communicator device is pressed, a signal is transmitted, by means of the user's telephone equipment, to Lifeline's call center. This signal alerts Lifeline's call center that an emergency situation may have arisen at the decedent's residence. Further, the plaintiff alleged that, on July 29, 2011, the eighty-eight year old decedent, who lived alone, and cared for and maintained herself, was found to be deceased on the floor of her residence after having attempted to summon help by means of her Lifeline system.

         In count one, brought against VNA, the plaintiff alleged that VNA was negligent in its installation of the Lifeline system. The plaintiff alleged that VNA failed to properly install the communicator device so that, when a help button was pressed, the system would seize the decedent's telephone line, thereby permitting an emergency signal to be transmitted from the decedent's residence to Lifeline's call center in circumstances in which one or both of the decedent's two telephones was either in use or simply off the hook. The plaintiff alleged that the user manual provided to the decedent by VNA ‘‘contained various incorrect and contradictory statements pertaining to the inability of the device to ‘seize the phone line' when the customer's phone was in use or off the hook . . . .'' Additionally, the plaintiff alleged that VNA failed to install a special telephone jack (specifically, an RJ31X telephone jack) that would have enabled the communicator device to seize the telephone line to transmit an emergency signal; VNA failed to follow warnings and procedures related to the installation of the system; VNA's installer lacked necessary training, knowledge, and expertise with respect to the Lifeline system; and VNA failed to advise the decedent of ‘‘the purpose of the . . . [special] phone jack and the hazards and dangers of not having the recommended jack installed, and failed to ensure that [the decedent's] device would work when either [of the decedent's telephones were] in use or off the hook.''

         Further, the plaintiff alleged: ‘‘On or before July 29, 2011, one or more of the decedent's telephones was off the hook and she fell in her home and could not get up off the floor. On said date and at all times material thereto, the decedent exercised due care and she initiated a signal to the call center by pressing the ‘help' button on the communicator and/or the [personal help button] necklace, however the Lifeline device failed to send the signal and/or ‘dial in' to the call center, no [emergency] assistance was ever sent [to the decedent's residence], and the decedent remained on the floor for approximately [twenty-four to forty-eight] hours and eventually died on the floor of her residence.''

         The plaintiff alleged that, as a result of VNA's negligence, ‘‘the decedent remained on the floor for an undetermined amount of time, without medical attention, food or water, was unable to move or secure help and died a frightening death. . . . [T]he decedent suffered anguish, fear, and the realization that her helplessness and incapacity caused the impending end of her life and the experience of a lonely death. . . . [T[he decedent's ability to carry out life's activities was permanently destroyed . . . [and] funeral, burial, and other expenses and probate costs were incurred on behalf of the decedent and will continue to be incurred in the future.''

         In count two, brought against VNA, the plaintiff alleged that VNA breached its written agreements (both a ‘‘Service Agreement'' and a‘‘Care Plan Agreement'') by which VNA agreed ‘‘that emergency medical assistance would be provided or [the decedent's] responders would be contacted in the event that the decedent activated the ‘help' button on either the side of the Lifeline communicator or the [personal help button] necklace.'' The plaintiff, relying on prior allegations in the complaint, also alleged that ‘‘VNA breached its agreements with the decedent in that [after she initiated an emergency signal] no emergency medical assistance was provided and no responders were contacted to advise of the emergency which befell the decedent.'' The plaintiff alleged that, as a result of Lifeline's defective product, the decedent suffered the consequences that previously were alleged in count one.

         In count three, the final count of the complaint, the plaintiff set forth a cause of action against Lifeline sounding in products liability. The plaintiff, also relying on prior allegations in the complaint, alleged that, in twenty-two different ways, Lifeline acted negligently and carelessly when it put the Lifeline system into the stream of commerce, and that the system was expected to and did reach the decedent as a foreseeable user, without substantial changes in the condition in which it was sold. The plaintiff alleged that, under General Statutes § 52-575m, Lifeline was liable and legally responsible to the plaintiff for the damages caused by the system. As she did in the context of claim two, the plaintiff alleged that, as a result of the breach, the decedent suffered the consequences that previously were alleged in count one.

         VNA denied that it acted negligently or that it breached its contract with the decedent. As a special defense, VNA alleged that ‘‘[i]f, as alleged by the plaintiff, the decedent's injuries were caused by negligence and/or carelessness . . . it was more likely [caused by] the decedent's negligence . . . .'' The plaintiff denied the allegations in the special defense. Lifeline denied that it was liable under a theory of products liability for any damages. Both defendants denied the plaintiff's allegations, as set forth in all three counts of the complaint, with respect to the damages allegedly caused by them.

         Thereafter, over the course of several days, the plaintiff presented evidence to a jury. The plaintiff, who is the decedent's sister, presented her own testimony, as well as testimony from Peter Galetsa, the plaintiff's husband; Carlos Morales, a former VNA employee who had installed the decedent's Lifeline system; Robin Timmer, a police officer with the Glastonbury Police Department who, following a request for a welfare check, had entered the decedent's residence and discovered the deceased therein; Joy Balsamo, a former Lifeline senior territory manager whose duties included selling and marketing the Lifeline system to VNA; Mary Jo Lucia, a former VNA referral intake coordinator who was involved with scheduling the installation of the decedent's Lifeline system; Mary Ann Dunbar, a former VNA business manager who oversaw the Lifeline program on behalf of the VNA; Dawn Gaylord Medina, a former Lifeline coordinator whose duties included training Lifeline system installers and coordinating the installation of Lifeline systems; Michael Tracey, a Lifeline senior manager of monitoring services whose duties encompass responding to signals from subscribers' communicator devices; Eva Baranowski, a VNA client services manager who formerly supervised VNA's homemaking department; Ellen Wilson, an advanced emergency medical technician (EMT) employed by the Glastonbury Ambulance Department, who was one of the first responders at the decedent's residence on July 29, 2011; Joseph Randolph, the owner of Randolph Telecom, Inc., which provides consulting services to designers of telecommunications equipment; and Roy Zagieboylo, the decedent's primary care physician. Additionally, the plaintiff presenteda great deal of documentary evidence in support of her case, including excerpts of the deposition testimony of Martin Fox, an engineer, and William MacIver, an engineer employed by Lifeline.

         In relevant part, the plaintiff presented evidence that after she was unable to contact the decedent by telephone, she and her husband, Galetsa, went to the decedent's residence but still were unable to contact the decedent. The plaintiff and Galetsa went to the Glaston-bury Police Department and asked for assistance. Timmer forcibly entered the residence, where he found the decedent's body, face down, in a hallway near a bathroom. The decedent was wearing a personal help button, and a red light was flashing on the Lifeline communicator device, which occurs after a help button had been pressed. Telephone records submitted in evidence supported a finding that the decedent's telephone was off the hook for a lengthy period prior to the discovery of the decedent's body. Wilson testified that she observed bloody stool in a toilet near the decedent's body and that she believed the bloody stool to be consistent with gastrointestinal bleeding (GI bleed). The plaintiff rested her case-in-chief on March 18, 2015.

         After the plaintiff rested her case, the defendants orally moved for a directed verdict. In their argument, the defendants focused on what they viewed as a lack of evidence to support a necessary finding by the jury with respect to the issue of causation of the damages claimed. The court invited the parties to present memoranda with respect to the motions for a directed verdict. Lifeline and VNA presented memoranda of law in support of the motions and the plaintiff presented a memorandum in opposition to the motions.

         On March 24, 2015, during the defendants' case-in-chief, the court, by means of an oral ruling, granted the defendants' motions for a directed verdict.[3] In relevant part, the court explained that causation consisted of two components, cause in fact and proximate cause. The court explained that the test for cause in fact ‘‘is simply would the injury have occurred were it not for the actor's conduct.'' The court explained that the test for proximate cause ‘‘is determined by looking from the injury to the negligent act complained of [to determine whether] the . . . conduct is a substantial factor is bringing about the plaintiff's injuries.'' The court observed that in undertaking its analysis, it must view the evidence in the light most favorable to the plaintiff, and that causation ‘‘must be based upon more than conjecture and surmise.''

         The court then stated: ‘‘This court finds that the plaintiff has failed to present evidence in the absence of speculation and conjecture to support causation; specifically, the plaintiff needed to establish that had the decedent pressed the Lifeline help button, and [if the emergency signal] had been successfully received, she would have received medical attention and lived.

         ‘‘Dr. Zagieboylo was able to testify within a reasonable degree of medical probability that the decedent suffered a GI bleed and that it was a substantial factor in contributing to her death.

         ‘‘He also testified that he would not expect her to die instantaneously from a GI bleed because he also testified that . . . he could not testify that the GI bleed caused her death or was the sole cause of death.

         ‘‘Dr. Zagieboylo's opinion on its own is wholly inadequate to establish causation. Because, as the court will elaborate further, Dr. Zagieboylo made clear that he could not so opine.

         ‘‘He also testified that it was likely that she had symptoms [related to the GI bleed], but his critical testimony which he clearly and candidly couchedinterms of possibilities was the following . . . if [the decedent] became symptomatic and . . . whether she became symptomatic, he could not say if she experienced symptoms, interpreted them correctly, and or acted on her symptoms.

         ‘‘When asked whether . . . the absence of medical attention, food, and water . . . was a substantial factor in contributing to the death, [Dr. Zagieboylo] testified that [that question] ‘was hard because time was a factor, ' and that . . . ‘[m]ay be Life Star wouldn't have saved her' . . . and he also stated . . . ‘[t]here may have been time to save her.'

         ‘‘More definitively to the question of cause of death, Dr. Zagieboylo made crystal clear the distinction in his opinion between the GI bleed being a contributing factor inher death, [about] which he could testify within a reasonable degree of medical probability, versus the actual cause of death, about which he clearly ...


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