MARY BETH FARRELL ET AL.
JOHNSON AND JOHNSON ET AL.
April 16, 2018
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).
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.
plaintiffs, Mary Beth Farrell and Vincent Farrell,
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). 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whom had been withdrawn; (2) abused its discretion by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. We affirm the judgment of the trial court.
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. 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,
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.
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.''
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
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.
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.
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. 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
‘‘[The Witness]: To pay you a third of any fees
that occurred in the case.
‘‘[The Plaintiffs' Counsel]: One third of any
‘‘[The Witness]: Yes. One third of any recovery
that we receive.''
on cross-examination, the following exchange occurred:
‘‘[The Defendants' Counsel]: You're
paying your attorneys one third of any recovery you receive