Gallinari v. Kloth
148 F. Supp. 3d 202
D. Conn.2015Background
- Plaintiff Susan Gallinari alleges that on August 20, 2012 she was injected in the spine with preservative-free compounded betamethasone supplied by NECC and later developed injuries; defendants are treating physician Dr. Kloth, Connecticut Pain Care, P.C., Danbury Hospital, and Ridgefield Surgical Center.
- Complaint asserts four counts: (1) battery; (2) Connecticut Products Liability Act (CPLA) claims including negligence, strict products liability, and implied warranties; (3) CUTPA; and (4) punitive damages.
- Defendants moved to dismiss for lack of personal jurisdiction (arguing failure to comply with Conn. Gen. Stat. § 52-190a certificate-of-merit requirement) and for failure to state a claim under Rule 12(b)(6); plaintiff did not file opposition memoranda.
- Court treated § 52-190a noncompliance as a jurisdictional defect for malpractice claims and analyzed whether each pleaded cause of action actually ‘‘sounds in medical malpractice’’ under Connecticut law.
- Court dismissed negligence-based CPLA claims for failure to attach a § 52-190a certificate/opinion (without prejudice), but held that battery, strict products liability, implied warranty (fitness), and CUTPA claims do not necessarily sound in malpractice and therefore survive the § 52-190a jurisdictional challenge (subject to merits).
- On Rule 12(b)(6) review, the court dismissed battery (failure to allege lack of consent distinct from informed-consent claim) and dismissed the implied warranty of merchantability claim (no allegation of notice to seller); it sustained strict products liability, implied warranty of fitness for particular purpose, and CUTPA claims; punitive damages claim was dismissed as duplicative.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claims must be dismissed for failure to comply with Conn. Gen. Stat. § 52-190a | Gallinari contends her claims are properly pleaded and not all sound in medical malpractice | Defendants argue all claims are medical malpractice and dismissal is required for failure to file certificate/opinion | Court: Negligence-based CPLA claims sound in malpractice and are dismissed without prejudice for § 52-190a noncompliance; battery, strict products liability, implied warranty (fitness), and CUTPA do not automatically sound in malpractice and survive the jurisdictional challenge |
| Whether battery claim survives Rule 12(b)(6) | Plaintiff: injection was unconsented touching because she was not informed of risks of NECC-supplied drug | Defendants: consent/informed-consent issues do not plead battery | Court: Dismissed battery — allegations show lack of informed consent, not absence of consent or a different procedure; battery requires nonconsensual touching or distinct facts |
| Whether CPLA-based strict liability and warranty claims are viable against healthcare providers | Plaintiff alleges defendants acted as product sellers, sold a defective compounded medication, causing injury | Defendants: hospitals/physicians are providers of services, not product sellers, so CPLA claims fail | Court: At pleading stage plaintiff plausibly alleged defendants were product sellers and pleaded strict liability and implied-fitness; warranty of merchantability dismissed for failure to allege notice |
| Whether CUTPA claim is preempted by CPLA / otherwise deficient | Plaintiff alleges concealment/misrepresentation inflated price of drug and caused an ascertainable financial loss | Defendants: CUTPA is preempted or improperly applied to medical malpractice | Court: CUTPA claim not preempted (seeks financial loss, not personal injury) and alleges plausible unfair/deceptive conduct causing ascertainable loss — survives |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: plausible factual content required)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (Twombly plausibility standard for complaints)
- Morgan v. Hartford Hosp., 301 Conn. 388 (2011) (§ 52-190a certificate/opinion requirement is akin to a pleading and failure deprives court of personal jurisdiction)
- Gold v. Greenwich Hosp. Ass’n, 262 Conn. 248 (2002) (three-prong test to determine whether a claim sounds in medical malpractice)
- Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120 (2003) (CPLA exclusivity does not preempt CUTPA claims seeking purely financial loss)
- Zichichi v. Middlesex Mem’l Hosp., 204 Conn. 399 (1987) (distinguishing sales of products from rendition of services for product-liability coverage)
- Lambert v. Stovell, 205 Conn. 1 (1987) (doctrine distinguishing battery from lack of informed consent)
- Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415 (1996) (in diversity cases federal courts apply state substantive law and federal procedural law)