335 Conn. 398
Conn.2020Background
- In 2008 Mary Beth Farrell underwent pelvic organ prolapse surgery performed by Dr. Brian J. Hines in which he implanted a mesh product; she developed bleeding, chronic pain, required multiple follow‑up procedures and was later diagnosed with nerve damage.
- Plaintiffs (Mary Beth and Vincent Farrell) sued Hines and his practice asserting lack of informed consent, innocent misrepresentation, negligent and intentional misrepresentation, and loss of consortium.
- At trial plaintiffs sought to admit two 2007 medical‑journal publications (an ACOG Practice Bulletin and an Ostergard article) to show Hines knew or should have known the procedure/product was experimental and controversial.
- The trial court excluded those two journal articles as hearsay offered for their truth because plaintiffs failed to prove Hines had read them or was constructively on notice; the court did admit an FDA public health notification that Hines acknowledged reading.
- The trial court directed a verdict for defendants on the innocent misrepresentation count; the jury later returned verdicts for defendants on remaining counts. The Appellate Court affirmed; the Connecticut Supreme Court granted certification and affirmed the Appellate Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of journal articles offered to prove notice (non‑hearsay) | Farrells: articles show a contemporaneous medical controversy and thus show Hines had (or should have had) notice of experimental nature and risk, so they are admissible for effect on the hearer | Hines: plaintiffs failed to establish that he read the articles or had a duty to know their contents; the articles are being offered for their truth and are hearsay | Court: upholds exclusion — plaintiffs failed to show actual or constructive notice; trial court did not abuse discretion in excluding the articles as hearsay and for lack of foundation (one article was admitted via learned‑treatise foundation and the FDA notice was admitted because Hines had read it) |
| Applicability of innocent misrepresentation to physician statements in medical treatment | Farrells: innocent misrepresentation should extend beyond commercial sales to medical contexts; physicians can be strictly liable for innocent misstatements that induce reliance | Hines: §552C Restatement (Second) of Torts requires a sale/rental/exchange; medical services are not a commercial transaction for this doctrine; extending strict liability would conflict with malpractice/informed‑consent framework | Court: directed verdict proper — innocent misrepresentation (strict warranty‑type liability) generally applies to sales/exchanges; court declines to extend strict liability to physician communications in providing medical services; claims about medical opinions remain cognizable under other doctrines (fraud, negligent misrepresentation, malpractice, informed consent) |
Key Cases Cited
- Johnson v. Healy, 176 Conn. 97 (Conn. 1978) (seminal Connecticut discussion of innocent misrepresentation as warranty‑based doctrine)
- State v. Saucier, 283 Conn. 207 (Conn. 2007) (standard of review for hearsay/evidentiary rulings and distinguishing legal vs. discretionary questions)
- George v. Celotex Corp., 914 F.2d 26 (2d Cir. 1990) (discussing constructive notice and manufacturer’s duty to know published scientific literature)
- Duffy v. Flagg, 279 Conn. 682 (Conn. 2006) (physician misrepresentations and distinction between opinions and facts)
- Doe v. Cochran, 332 Conn. 325 (Conn. 2019) (misrepresentation claims against physicians for certain factual statements)
- Jenkins v. Reichert, 125 Conn. 258 (Conn. 1939) (historical Connecticut authority admitting statements to prove notice)
- Coyne v. Taber Partners I, 53 F.3d 454 (1st Cir. 1995) (permitting press articles to show constructive notice in certain contexts)
- Marsee v. United States Tobacco Co., 866 F.2d 319 (10th Cir. 1989) (manufacturer chargeable with knowledge of scientific literature for product hazard notice)