Ferrari v. Johnson & Johnson, Inc.

         Argued January 17, 2019

         Appeal from the Superior Court, Judicial District of Hartford, Cesar A. Noble, J.

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          Andrew W. Skolnick, for the appellant (plaintiff).

         W. Kennedy Simpson, pro hac vice, with whom was Christopher J. Lynch, for the appellees (defendants).

         Alvord, Sheldon and Pellegrino, Js.

          OPINION

         ALVORD, J.

         [190 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 product’s alleged defect caused the plaintiff’s injury, without the use of expert testimony, and (2) the learned intermediary doctrine barred the plaintiff’s failure to warn claim. We affirm the judgment of the trial court.

          The 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 plaintiff’s 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 plaintiff’s spine. The plaintiff’s 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.

         On 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^[1] and (2) a design defect.^[2] The third and fourth counts alleged breaches of express and implied warranties.

         The deadline for the plaintiff to disclose any expert witnesses was January 15,

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2017, pursuant to the parties’ mutually agreed on scheduling order. The plaintiff failed to disclose any expert witnesses.^[3]

          On 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 plaintiff’s claims, (4) the learned intermediary doctrine barred the plaintiff’s 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, 2017.

          The 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.

         Before addressing the plaintiff’s claims, we set forth the applicable standard of review of a trial court’s 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 ...