Raymond C. FERRARI
JOHNSON AND JOHNSON, INC., et al.
January 17, 2019
from the Superior Court, Judicial District of Hartford, Cesar
A. Noble, J.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
W. Skolnick, for the appellant (plaintiff).
Kennedy Simpson, pro hac vice, with whom was Christopher J.
Lynch, for the appellees (defendants).
Sheldon and Pellegrino, Js.
Conn.App. 154] The plaintiff, Raymond C. Ferrari, appeals
from the summary judgment rendered by the trial court in
favor of the defendants, Johnson & Johnson, Inc., and
Synthes, Inc. The plaintiff claims that the court erred by
holding that (1) he cannot prove that the defendants product
was defective, or that the products alleged defect caused
the plaintiffs injury, without the use of expert testimony,
and (2) the learned intermediary doctrine barred the
plaintiffs failure to warn claim. We affirm the judgment of
the trial court.
following undisputed facts and procedural history are
relevant to our resolution of this appeal. On August 17,
2012, the plaintiff underwent spinal surgery at Hartford
Hospital. The procedure included a posterolateral fusion, in
which the plaintiffs surgeon, Dr. Paul Schwartz, implanted
various components of the defendants product, the Synthes
Matrix spinal system (product). This system included
stabilizing titanium rods that were used in the fusion of the
plaintiffs spine. The plaintiffs surgery required a
junction of the new titanium hardware with a previously
placed steel construct. On April 4, 2013, the plaintiff
underwent a second surgery, which revealed a fracture of the
left titanium rod at the junction of the new titanium
instrumentation with the old steel construct.
April 7, 2016, the plaintiff served a four count complaint on
the defendants. The first two counts alleged product defect
claims pursuant to the Connecticut Product Liability Act,
General Statutes § 52-572m et seq. Specifically, the
plaintiff set forth claims involving [190 Conn.App. 155] (1)
a failure to warn defect and (2) a design
defect. The third and fourth counts alleged
breaches of express and implied warranties.
deadline for the plaintiff to disclose any expert witnesses
was January 15,
2017, pursuant to the parties mutually agreed on scheduling
order. The plaintiff failed to disclose any expert
April 17, 2017, the defendants filed a motion for summary
judgment, arguing that (1) the plaintiff had failed to
disclose an expert witness, (2) the plaintiff could not
establish that the product was defective, (3) comment (k) to
§ 402A of the Restatement (Second) of Torts barred the
plaintiffs claims, (4) the learned intermediary doctrine
barred the plaintiffs claims, and (5) the plaintiff could
not establish causation. On July 10, 2017, the plaintiff
filed an objection to the defendants motion for summary
judgment, claiming that a [190 Conn.App. 156] product defect
can be inferred from the evidence without expert testimony
and that genuine issues of material fact existed as to
whether there were adequate warnings. A hearing on the
defendants motion for summary judgment was held on July 31,
court issued its memorandum of decision on November 28, 2017,
granting the defendants motion for summary judgment. This
appeal followed. Additional facts and procedural history will
be set forth as necessary.
addressing the plaintiffs claims, we set forth the
applicable standard of review of a trial courts ruling on a
motion for summary judgment. "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 seeking summary judgment
has the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles ...