184 Conn. App. 685
Conn. App. Ct.2018Background
- Mary Beth Farrell underwent transvaginal mesh implantation by Dr. Brian Hines in November 2008; she experienced postoperative pain, multiple removal procedures, and later pudendal/obturator nerve damage.
- Plaintiffs (Mary Beth and Vincent Farrell) sued multiple defendants asserting claims including lack of informed consent, innocent/negligent/intentional misrepresentation, and loss of consortium; prior defendants were dropped pretrial, leaving Hines and Urogynecology.
- At trial (Jan 2016) the court directed a verdict for defendants on the innocent misrepresentation count; the jury returned defense verdicts on the remaining counts and judgment was entered for defendants.
- During trial, plaintiffs’ counsel elicited testimony about a one‑third contingency fee; defendants’ counsel then questioned whether that applied to prior (now‑dismissed) defendants, leading to a dispute over references to former parties.
- Plaintiffs sought admission of two 2007 medical journal passages (ACOG Bulletin and Ostergard article) to show notice of the experimental/risky nature of mesh; the court excluded them as hearsay.
- Plaintiffs also requested a jury instruction equating representations made without sufficient informational basis with knowing misrepresentation; the court declined the precise wording but gave instructions the court deemed to cover the substance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court abused discretion by permitting references to former defendants | References were prejudicial and implied plaintiffs received money from former defendants | Plaintiffs opened the door by asking about their fee agreement; limited context questions were permissible | No abuse; court properly found door opened and limited inquiry; any error harmless |
| Admissibility of two journal articles (notice of risks/experimental nature) | Articles admissible to show Hines knew or should have known (notice), not offered for truth | Articles asserted the very facts plaintiffs relied on; admission would be hearsay | No abuse; articles were hearsay and not admissible to prove notice absent hearsay exception |
| Directed verdict on innocent misrepresentation claim | Innocent misrepresentation applies and should be submitted to jury | Innocent misrepresentation is a commercial/warranty‑based doctrine not suited to personal injury/informed‑consent context | Affirmed; court correctly directed verdict—doctrine principally applies to business transactions and not to this case |
| Jury instruction re: misrepresentation for lack of sufficient knowledge | Requested language was accurate and should have been given verbatim | Issue not preserved; in any event the charge covered the substance | No reversible error; court’s charge fairly and substantially covered plaintiffs’ requested instruction |
Key Cases Cited
- Peck v. Jacquemin, 196 Conn. 53 (1985) (legislative purpose of § 52-216a prohibits informing juries of releases/agreements with other tortfeasors)
- State v. Brown, 309 Conn. 469 (2013) (opening‑the‑door doctrine permits otherwise inadmissible rebuttal evidence when a party initiated the subject)
- State v. Carpenter, 275 Conn. 785 (2005) (statements offered to show their effect on the hearer are not hearsay when relevant to notice/intent)
- Johnson v. Healy, 176 Conn. 97 (1978) (innocent misrepresentation grounded in warranty principles and commonly applied in commercial transactions)
- Matyas v. Minck, 37 Conn. App. 321 (1995) (elements of innocent misrepresentation defined)
- Ulbrich v. Groth, 310 Conn. 375 (2013) (preservation rules for jury charge objections; requests must be given in substance)