Farrell v. Johnson and Johnson

          Argued April 16, 2018

         Procedural History

         Action to recover damages for, inter alia, the defendants' alleged negligent misrepresentation, and for other relief, brought to the Superior Court in the judicial district of Waterbury and tried to the jury before the court, Zemetis, J.; thereafter, the court directed a verdict in favor of the defendants on the plaintiffs' innocent misrepresentation claim; subsequently, the jury returned a verdict in favor of the defendant Brian J. Hines et al. on the remaining counts; thereafter, the trial court rendered judgment thereon; subsequently, the court denied the plaintiffs' motion to set aside the verdict, and the plaintiffs appealed to this court. Affirmed.

          Brenden P. Leydon, with whom, on the brief, was Jacqueline E. Fusco, for the appellants (plaintiffs).

          David J. Robertson, with whom, on the brief, were Madonna A. Sacco, Heidi M. Cilano, Nancy M. Marini, and Christopher H. Blau, for the appellees (defendants).

          Lavine, Keller and Bishop, Js.

          OPINION

          BISHOP, J.

         The plaintiffs, Mary Beth Farrell and Vincent Farrell, ^[1] appeal from the judgment of the trial court, rendered following a jury trial, in favor of the defendants Brian J. Hines, M.D., and Urogynecology and Pelvic Surgery, LLC (Urogynecology).^[2] On appeal, the plaintiffs claim that the court (1) abused its discretion by allowing the defendants to refer during trial to prior defendants, the claims against whom had been withdrawn; (2) abused its discretion by excluding from evidence as hearsay two journal articles; (3) improperly directed a verdict in favor of the defendants on the plaintiffs' claim of innocent misrepresentation; and (4) improperly failed to instruct the jury on the concept of misrepresentation due to Hines' lack of sufficient knowledge.^[3] We affirm the judgment of the trial court.

         The following facts, which the jury reasonably could have found, and procedural history are relevant to our consideration of this appeal. At some point in 2007, Mary Beth's gynecologist diagnosed her with pelvic organ prolapse.^[4] As her condition worsened, her gynecologist recommended that she see Hines, a surgeon, with whom she consulted in late October, 2008. Hines explained that implanting a mesh product into Mary Beth would be the best surgery to treat her condition. Mary Beth agreed to the surgery, and Hines performed the procedure on November 19, 2008.

         Approximately four days after Mary Beth had returned home from the surgery, she experienced excessive bleeding and abdominal pain. Hines initially diagnosed her with two large pelvic hematomas. Mary Beth continued to follow up with Hines; however, she continued experiencing pain. In February, 2009, Mary Beth underwent another surgery during which Hines attempted to remove the mesh product that he had implanted in her. Hines removed as much of the mesh as possible; however, some of the mesh could not be removed because it was embedded in tissue. After a second surgery to remove the mesh in the summer of 2009, Mary Beth still experienced pain and was diagnosed with damage to the pudendal and obturator nerves.

         Mary Beth underwent several additional procedures, such as nerve blocks and mesh removal, but these procedures did not eliminate the pain. The pain that she experienced eventually caused her to resign her position as a teacher so she could focus on her health. At the time of trial in January, 2016, Mary Beth was considering additional surgery, which she described as ‘‘major.''

         The plaintiffs served their original complaint on November 15, 2011. The plaintiffs filed the operative, third amended complaint on December 4, 2015, alleging the following claims against the defendants: (1) lack of informed consent; (2) innocent misrepresentation; (3) negligent misrepresentation; (4) intentional misrepresentation; and (5) loss of consortium.

         The plaintiffs' case was tried to a jury in January, 2016. On January 19, 2016, the court directed a verdict in favor of the defendants on the plaintiffs' innocent misrepresentation claim. On January 20, 2016, the jury returned a verdict for the defendants on the remaining counts, and the court entered judgment on July 13, 2016. The plaintiffs' motion to reargue was denied and this appeal followed. Additional facts and procedural history will be set forth as necessary.

         I

         The plaintiffs' first claim is that the court abused its discretion by allowing the defendants to refer to parties that had been removed from the case. The plaintiffs argue that reference to the former defendants was ‘‘extremely prejudicial and served solely to seek to improperly inform the jury [that the] [p]laintiff[s] received money from a former defendant.'' In response, the defendants argue that the plaintiffs opened the door to the admission of this evidence and, alternatively, that any error was harmless.

         The following additional facts and procedural history are relevant to the resolution of this claim. The plaintiffs commenced this action against several entities, in addition to Hines and Urogynecology, alleging products liability claims and violations of the Connecticut Unfair Trade Practices Act. See footnote 2 of this opinion. Before trial commenced, the plaintiffs withdrew their claims against all defendants except Hines and Urogynecology. Prior to the start of evidence, the plaintiffs filed a motion in limine in which they sought to exclude from evidence any testimony regarding the resolution of the claims against the former defendants. The court granted the motion and, prior to the start of evidence, instructed the jury not to consider the absence of the former defendants.^[5] During the direct examination of Mary Beth, the following exchange occurred:

‘‘[The Plaintiffs' Counsel]: [Mary Beth], do you have an agreement with my firm for the attorney's fees in this case?

‘‘[The Witness]: Yes, we do.

‘‘[The Plaintiffs' Counsel]: What is that agreement?

‘‘[The Witness]: To pay you a third of any fees that occurred in the case.

‘‘[The Plaintiffs' Counsel]: One third of any recovery?

‘‘[The Witness]: Yes. One third of any recovery that we receive.''

         Subsequently, on cross-examination, the following exchange occurred:

‘‘[The Defendants' Counsel]: You're paying your attorneys one third of any recovery you receive ...