190 Conn. App. 152
Conn. App. Ct.2019Background
- Raymond Ferrari underwent posterior-lateral spinal fusion using Synthes Matrix components (titanium rods) in 2012; a 2013 revision found a fractured left titanium rod at a junction with preexisting stainless steel hardware.
- Ferrari sued Johnson & Johnson and Synthes alleging design defect, failure to warn (including risks from patient size and mixing titanium with stainless steel), and breach of express and implied warranties.
- Scheduling order required expert disclosure by January 15, 2017; Ferrari disclosed no experts and did not seek leave to do so.
- Defendants moved for summary judgment arguing Ferrari lacked expert proof of defect/causation, Comment k/learned intermediary applied, and warnings were adequate; the trial court granted summary judgment.
- On appeal, Ferrari argued no expert was necessary (ordinary consumer expectation or malfunction theory) and that the defendants’ sales representative orally undermined written warnings, defeating the learned intermediary defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony was required to prove a design defect | Ordinary consumer expectations or circumstantial/malfunction evidence suffice without experts | Product is complex; modified consumer expectation (risk-utility) applies and experts are required | Expert testimony required; summary judgment for defendants affirmed |
| Whether expert testimony was required to prove causation | No dispute the implant failed; causation evident without experts | Causation involves complex biomechanical and technical issues beyond juror knowledge | Expert testimony required for causation; summary judgment affirmed |
| Applicability of the learned intermediary doctrine to failure-to-warn claim | Warnings became inadequate when combined with product representative’s influence on surgeon | Warnings in insert were adequate and there is no evidence rep said anything inconsistent with warnings | Learned intermediary bars claim; no evidence rep undermined warnings; summary judgment affirmed |
| Whether malfunction theory or res ipsa/ordinary consumer test applied | Malfunction or ordinary consumer expectation fits, so no expert needed | Plaintiff failed to plead or develop malfunction theory; injury not so bizarre to invoke ordinary consumer test | Neither theory applies here: malfunction not plead/developed; ordinary consumer test inapplicable; modified test governs requiring experts |
Key Cases Cited
- Izzarelli v. R.J. Reynolds Tobacco Co., 321 Conn. 172 (Conn. 2016) (adopts modified consumer expectation/risk-utility as primary test; limits ordinary consumer expectation to res ipsa/bizarre cases)
- Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199 (Conn. 1997) (examples of accidents so bizarre jurors need no expert)
- White v. Mazda Motor of America, Inc., 313 Conn. 610 (Conn. 2014) (malfunction theory requires pleading specific elements and can overlap with consumer-expectation tests)
- Hurley v. Heart Physicians, P.C., 278 Conn. 305 (Conn. 2006) (product representative conduct can create a factual dispute defeating learned intermediary defense if inconsistent with written warnings)
- Breen v. Synthes-Stratec, Inc., 108 Conn. App. 105 (Conn. App. 2008) (learned intermediary doctrine applies to prescription implantable devices)
- Theodore v. Lifeline Systems Co., 173 Conn. App. 291 (Conn. App. 2017) (elements of strict products liability and need for expert testimony when issues exceed ordinary juror knowledge)