Farrell v. Johnson & JohnsonFarrell v. Johnson & Johnson
The plaintiffs, M and V, sought to recover damages from, among others, the defendant H, a urogynecologist, for, inter alia, lack of informed consent and innocent misrepresentation in connection with an unsuccessful surgery in which H implanted a mesh product in M‘s body for the purpose of treating M‘s pelvic organ prolapse. M experienced bleeding and pain after the procedure, and, despite several follow-up procedures to alleviate the pain and to remove the mesh product, her pain continued. M subsequently was diagnosed with nerve damage. Prior to trial, the plaintiffs sought to introduce into evidence two articles from medical journals containing certain statements regarding the limited data about the mesh product used in the present case and the experimental nature of the implantation procedure, including statements that patients should consent to the surgery with an understanding of the risks and experimental nature of the procedure. The plaintiffs claimed that the statements in the articles were admissible to demonstrate that H knew or should have known that the mesh surgery was experimental and the subject of medical controversy, and that H failed to properly advise M of the risks associated with the mesh product. Following a hearing, the trial court determined that the articles were being offered not for purposes of notice but for the truth of the matter asserted therein and, therefore, were inadmissible hearsay. At the conclusion of the trial, the court directed a verdict in favor of H and another remaining defendant on the innocent misrepresentation claim. The jury subsequently returned a verdict in favor of the defendants on the remaining claims, and the trial court rendered judgment thereon. Thereafter, the plaintiffs appealed to the Appellate Court, which affirmed the trial court‘s judgment. The Appellate Court concluded, inter alia, that the trial court did not abuse its discretion by excluding the two journal articles on the ground that they were inadmissible hearsay and that the trial court properly directed a verdict for the defendants on the innocent misrepresentation claim because innocent misrepresentation claims primarily apply to business transactions, typically between a buyer and seller. On the granting of certification, the plaintiffs appealed to this court. Held:
1. The Appellate Court correctly concluded that the trial court did not abuse its discretion in declining to admit into evidence the two journal articles offered by the plaintiffs on the ground that those articles were inadmissible hearsay: the plaintiffs could not introduce the articles for the nonhearsay purpose of proving what H, as a physician, knew or reasonably should have known with respect to the experimental nature of the mesh product and procedure, as the plaintiffs failed to meet their burden of demonstrating that H read or reasonably should have read the contents of the articles; moreover, the defendants contested the authority of the articles, and the trial court did not abuse its discretion in excluding them for the purpose of establishing that they were so authoritative in the field that H should have been on constructive notice of their content.
2. The Appellate Court properly upheld the trial court‘s decision to direct a verdict for the defendants on the plaintiffs’ innocent misrepresentation claim, this court having concluded that such a claim does not lie in the context of the present case: innocent misrepresentation claims in Connecticut generally are governed by § 552C of the Restatement (Second) of Torts, which requires that the misrepresentation occur in a “sale, rental or exchange transaction with another,” and, in the present case, the plaintiffs and H were not parties to such a commercial transaction because M sought out the services of H not to purchase the mesh product but primarily for the provision of medical services, namely, the implantation of the mesh product; moreover, this court rejected the plaintiffs’ claim that liability for innocent misrepresentation should be
Procedural History
Action to recover damages for, inter alia, the defendants’ alleged negligent misrepresentation, and for other relief, brought to the Superior Court in the judicial district of Waterbury and tried to the jury before Zemetis, J.; thereafter, the court directed a verdict for the defendants on the plaintiffs’ innocent misrepresentation claim; subsequently, the jury returned a verdict for the defendant Brian J. Hines et al. on the remaining counts, and the court rendered judgment thereon, from which the plaintiffs appealed to the Appellate Court, Lavine, Keller and Bishop, Js., which affirmed the trial court‘s judgment, and the plaintiffs, on the granting of certification, appealed to this court. Affirmed.
ROBINSON, C. J. This certified appeal requires us to consider (1) when exhibits that otherwise would constitute inadmissible hearsay may be admitted to prove notice on the part of the defendant, Brian J. Hines, and (2) whether the tort of innocent misrepresentation extends to communications made by a physician during the provision of medical services. The plaintiffs, Mary Beth Farrell and Vincent Farrell,1 appeal, upon our grant of their petition for certification,2 from the judgment of the Appellate Court affirming the judgment of the trial court, rendered after a jury trial, in favor of the defendants Hines and Urogynecology and Pelvic Surgery, LLC,3 on numerous tort claims, including informed consent, innocent misrepresentation, and negligent misrepresentation, following an unsuccessful pelvic mesh surgery on Mary Beth. See Farrell v. Johnson & Johnson, 184 Conn. App. 685, 688, 195 A.3d 1152 (2018). On appeal, the plaintiffs challenge the Appellate Court‘s conclusions that the trial court properly (1) excluded two medical journal articles from evidence as hearsay when they had been offered to prove notice, and (2) directed a verdict for the defendants on their innocent misrepresentation claims. We disagree and, accordingly, affirm the judgment of the Appellate Court.
The Appellate Court‘s opinion sets forth the following background facts and procedural history. “At some point in 2007, Mary Beth‘s gynecologist diagnosed her with pelvic organ prolapse. As her condition worsened, her gynecologist recommended that she see Hines, a [urogynecologist], with whom she consulted in late October, 2008. Hines explained that implanting a mesh product into Mary Beth would be the best surgery to treat her condition. Mary Beth agreed to the surgery, and Hines performed the procedure on November 19, 2008.” (Footnote omitted.) Id., 688–89.
“Approximately four days after Mary Beth had returned home from the surgery, she experienced excessive bleeding and abdominal pain. Hines initially diagnosed her with two large pelvic hematomas. Mary Beth continued to follow up with Hines; however, she continued experiencing pain. In February, 2009, Mary Beth underwent another surgery during which Hines attempted to remove the mesh product that he had implanted in her. Hines removed as much of the mesh as possible; however, some of the mesh could not be removed because it was embedded in tissue. After a second surgery to remove the mesh in the summer of 2009, Mary Beth still experienced pain and was diagnosed with damage to the pudendal and obturator nerves.” Id., 689.
“Mary Beth underwent several additional procedures, such as nerve blocks and mesh removal, but these procedures did not eliminate the pain. The pain that she experienced eventually caused her to resign her posi
“The plaintiffs served their original complaint on November 15, 2011. The plaintiffs filed the operative, third amended complaint on December 4, 2015, alleging the following claims against the defendants: (1) lack of informed consent; (2) innocent misrepresentation; (3) negligent misrepresentation; (4) intentional misrepresentation; and (5) loss of consortium.” Id., 690.
“The plaintiffs’ case was tried to a jury in January, 2016. On January 19, 2016, the court directed a verdict in favor of the defendants on the plaintiffs’ innocent misrepresentation claim. On January 20, 2016, the jury returned a verdict for the defendants on the remaining counts, and the court [rendered] judgment on July 13, 2016. The plaintiffs’ motion to reargue was denied . . . .” Id.
The plaintiffs then appealed from the judgment of the trial court to the Appellate Court, raising several issues, including that the trial court (1) “abused its discretion by excluding from evidence as hearsay two journal articles,” and (2) “improperly directed a verdict in favor of the defendants on the plaintiffs’ claim of innocent misrepresentation . . . .” Id., 688. The Appellate Court agreed with the defendants’ argument that the trial court did not abuse its discretion by excluding the two journal articles regarding the experimental nature of the surgery on the ground that they were inadmissible hearsay. Id., 699. In addition, the Appellate Court concluded that, under Johnson v. Healy, 176 Conn. 97, 405 A.2d 54 (1978), and § 552C of the Restatement (Second) of Torts, the trial court properly directed a verdict for the defendants on the innocent misrepresentation claim because “innocent misrepresentation claims primarily apply to business transactions, typically between a buyer and seller, and . . . the theory is based on principles of warranty.” Farrell v. Johnson & Johnson, supra, 184 Conn. App. 703. Accordingly, the Appellate Court unanimously rendered judgment affirming the judgment of the trial court. Id., 708. This certified appeal followed. See footnote 2 of this opinion. Additional facts and procedural history will be set forth as necessary.
I
We first consider whether the Appellate Court properly upheld the trial court‘s exclusion from evidence of the two articles discussing the experimental nature of the mesh surgery as hearsay. The record reveals the following additional facts and procedural history that are relevant to our resolution of this claim. The plaintiffs sought to introduce into evidence three journal articles for notice purposes, two of which are at issue in this appeal. Those two articles were (1) American College
The plaintiffs sought to admit the following statement from the ACOG Practice Bulletin: “Given the limited data and frequent changes in marketed products (particularly with regard to type of mesh material itself, which is most closely associated with several of the postoperative risks, especially mesh erosion), the procedures should be considered experimental and patients should consent to surgery with that understanding.” With respect to the Ostergard article, the plaintiffs sought to admit the following three statements: (1) “a physician can inform the patient of [the procedure‘s] experimental nature“; (2) “[t]here is a need for more information with specific graft materials to clarify success and adverse event rates“; and (3) “[w]ithout an adequate evidence base, practitioners cannot determine whether an innovative technique is the most safe and effective method for treating a patient. Without adequate data on the risks and benefits of new treatments, patients are unable to provide a true informed consent.”
Both parties submitted briefing on the admissibility of the articles, and the trial court heard argument on January 12, 2016. The trial court, in its ruling, agreed that the plaintiffs were offering the articles for their truth and that they therefore must be excluded as inadmissible hearsay.4
On appeal, the plaintiffs argue that the journal articles were admissible because they were offered for nonhearsay purposes, specifically, to show that Hines was on notice of a controversy regarding mesh products. In response, the defendants counter that the trial court properly excluded the articles as hearsay because the plaintiffs failed to show that Hines had read the articles and, therefore, that the articles could not be admitted for notice. The defendants also argue that the articles’ probative value was outweighed by their prejudicial effect and that, even if the articles were admissible, any error was harmless.
We begin with the standard of review applicable to a trial court‘s evidentiary decisions. “[We] examine the nature of the ruling at issue in the context of the issues in the case. . . . To the extent [that] a trial court‘s admission of evidence is based on an interpretation of the [Connecticut] Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and
“An out-of-court statement offered to establish the truth of the matter asserted is hearsay.” (Internal quotation marks omitted.) Id., 223; see Conn. Code Evid. § 8-1 (3). “The hearsay rule forbids evidence of out-of-court assertions to prove the facts asserted in them. If the statement is not an assertion or is not offered to prove the facts asserted, it is not hearsay. . . . This exclusion from hearsay includes utterances admitted to show their effect on the hearer.” (Citation omitted; internal quotation marks omitted.) State v. Hull, 210 Conn. 481, 498–99, 556 A.2d 154 (1989). “Because, however, the effect on the hearer rationale may be misapplied to admit facts that are not relevant to the issues at trial . . . courts have an obligation to ensure that a party‘s purported nonhearsay purpose is indeed a legitimate one. . . . Evidence is . . . admissible [only] when it tends to establish a fact in issue or to corroborate other direct evidence in the case. . . . Accordingly, an out-of-court statement is admissible to prove the effect on the hearer only when it is relevant for the specific, permissible purpose for which it is offered.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Miguel C., 305 Conn. 562, 574, 46 A.3d 126 (2012); see also E. Prescott, Tait‘s Handbook of Connecticut Evidence (6th Ed. 2019) § 8.3.1, p. 503. “The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence . . . is irrelevant.” (Internal quotation marks omitted.) State v. Davis, 298 Conn. 1, 23, 1 A.3d 76 (2010).
Notice is a long recognized nonhearsay purpose in Connecticut. More than eighty years ago, this court
Although our decision in State v. Saucier, supra, 283 Conn. 207, contemplates that a hearsay determination, when based on an interpretation of the Code of Evidence, is solely a question of law, it also instructs us to “examine the nature of the ruling at issue in the context of the issues in the case.” Id., 217. In the present case, the trial court determined that the two articles were inadmissible hearsay because they were irrelevant with respect to the plaintiffs’ asserted nonhearsay purpose. For a trial court to determine that a statement is admissible nonhearsay, the court must find that it is relevant for some reason other than its truth. See E. Prescott, supra, § 8.3.1, p. 503. The plaintiffs’ stated purpose for offering the articles was to show that Hines had “notice . . . that there was a lack of sufficient risk-benefit information upon which informed consent could be made at that time. . . . [T]hat‘s the heart of this case.” Thus, the trial court was required to exercise its discretion by finding facts regarding whether Hines had notice of these articles in order to determine whether they were relevant to the stated nonhearsay purpose. Because the trial court was required to make a “judgment call” in determining whether the articles were admissible nonhearsay, we review the court‘s determination for abuse of discretion and conclude that the trial court did not abuse its discretion.6
The purpose of notice evidence is to show an effect on the hearer. See E. Prescott, supra, § 8.8.1, p. 514 (“[a] statement is not hearsay if offered to prove notice to the hearer“); see also 2 R. Mosteller, McCormick on Evidence (8th Ed. 2020) § 249, pp. 196–200. Therefore, if the offering party has failed to demonstrate that the putative listener has heard or read the statement, it is inadmissible to prove notice. See, e.g., Rotolo v. Digital Equipment Corp., 150 F.3d 223, 224–25 (2d Cir. 1998) (holding that District Court improperly admitted videotape created by plaintiff‘s competitor for internal use only as notice evidence against defendant because plain
Courts have concluded that articles are admissible, despite hearsay objections, to show whether a party should have known a fact at issue. See Coyne v. Taber Partners I, 53 F.3d 454, 461 n.6 (1st Cir. 1995) (allowing newspaper article to show hotel‘s constructive notice of violent strike); Toney v. Zarynoff‘s, Inc., 52 Mass. App. 554, 562–63, 755 N.E.2d 301 (reversing trial court‘s exclusion of newspaper articles to show defendants’ knowledge of criminal activity in area, even though defendant‘s operator “had not read them“), review denied, 435 Mass. 1107, 761 N.E.2d 964 (2001). Or, in the context of a manufacturer: “For purposes of determining if it had notice of the hazardous character of its product, [the] defendant was chargeable with knowledge of the entire body of scientific learning and literature relating to that product . . . .” Marsee v. United States Tobacco Co., 866 F.2d 319, 326 (10th Cir. 1989). We agree with these decisions insofar as they hold that, if the proponent of an article can demonstrate that another party should have known the contents of the article, because of an independent duty to do so, it may be admissible to prove notice constructively. For example, manufacturers are “held to the knowledge of an expert in its field . . . and therefore [have] a duty
Physicians possess a duty to stay abreast of the state of medical science in their areas of practice. See Tomer v. American Home Products Corp., 170 Conn. 681, 687, 368 A.2d 35 (1976) (“[s]ince the defendants could not be held to standards which exceeded the limits of scientific advances existing at the time of their allegedly tortious conduct, expert testimony tending to show the scope of duties owed could have been properly limited to scientific knowledge existing at that time” (emphasis added)); C. Williams, Note, “Evidence-Based Medicine in the Law Beyond Clinical Practice Guidelines: What Effect Will EBM Have on the Standard of Care?,” 61 Wash. & Lee L. Rev. 479, 508–12 (2004) (describing duty and listing cases). In the present case, the defendants contested the authoritativeness of the two articles at issue. As such, the trial court did not abuse its discretion by excluding them for the purpose of establishing that they were so authoritative in the field that Hines should have been on constructive notice of their content—that is, that he reasonably should have read them. Put differently, because something is published in a journal does not mean, ipso facto, that it represents the state of medical science at the time, such that a physician is charged with a duty to know its contents. But cf. George v. Celotex, supra, 914 F.2d 28–30 (determining that asbestos report was relevant to defendant‘s liability because of defendant‘s duty to know and because of defendant‘s use of precise value criticized by report).
In the present case, the plaintiffs failed to meet their burden of demonstrating that Hines read or reasonably should have read the contents of these articles. Although one of the underlying issues in the case was what Hines, as a physician, knew or reasonably should have known with respect to the experimental nature of the mesh, the plaintiffs could not use the articles for that purpose without first establishing that Hines was on actual or constructive notice of the articles’ contents. Although Hines testified that he had received or read certain articles in the two journals at issue and had published his own article in one of the journals, those facts alone do not permit an inference that, as a result, he read every article in each issue published by each of the journals. Nor did the plaintiffs argue or present evidence to establish an independent duty establishing that Hines reasonably should have read these two articles, beyond his receipt of one of the journals.7
The plaintiffs argue that proof of knowledge is not necessary to prove notice. On this point, the plaintiffs rely on Blue Cross of California v. SmithKline Beecham Clinical Laboratories, Inc., 108 F. Supp. 2d 116 (D. Conn. 2000). In Blue Cross of California, the
II
We next turn to the plaintiffs’ claim that the trial court improperly directed a verdict for the defendants on the count of innocent misrepresentation. The record reveals the following additional relevant facts and procedural history. On January 14, 2016, after the close of evidence, the trial court heard arguments on the defendants’ motion for a judgment and a directed verdict9 on several issues, including the innocent misrepresentation claim. At this hearing, the plaintiffs argued, inter alia, that the evidence at trial presented several misrepresentations by Hines, including his: (1) explanation that “I believe[d], not correctly, but I believed I had a pretty good understanding of what the risks of using this product were“; (2) failure to disclose certain payments; and (3) statement that the surgery “will improve [the plaintiffs‘] sex life . . . .” The trial court indicated it had several questions regarding the applicability to this case of the tort of innocent misrepresentation and
On appeal, the plaintiffs contend that the Appellate Court improperly upheld the trial court‘s decision to direct a verdict on the innocent misrepresentation counts because it was both procedurally and substantively improper. The plaintiffs argue that claims for innocent misrepresentation are not limited to economic loss, and, therefore, they should have been allowed to present their claimed pecuniary loss to the jury. In addition, the plaintiffs contend that the requisite commercial transaction existed between the parties because Hines was in the business of performing these types of procedures. The defendants counter that the trial court properly directed a verdict on the claim of innocent misrepresentation because there was no commercial relationship between the parties and because “[t]he mesh product that was used was entirely incidental to the medical care that [Hines] rendered to [Mary Beth].” The defendants further argue that there was no factual foundation for the innocent misrepresentation claim, which, they contend, is inapplicable in cases arising from the provision of medical services. We agree with the defendants that the trial court properly directed a verdict because a claim for innocent misrepresentation does not lie as matter of law in this context.11
“Whether the evidence presented by the plaintiff is sufficient to withstand a motion for a directed verdict is a question of law, over which our review is plenary. . . . Directed verdicts are not favored. . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. . . . In reviewing the trial court‘s decision [to grant a defendant‘s motion for a directed verdict] we must consider the evidence in the light most favorable to the plaintiff. . . . A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Citation omitted; internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 328 Conn. 726, 744, 183 A.3d 611 (2018). “At the outset, we note that although we do not generally favor directed verdicts . . . [a] verdict may properly be directed where the decisive question is one of law.” (Citation omitted; internal quotation marks omitted.) Red Maple Properties v. Zoning Commission, 222 Conn. 730, 735, 610 A.2d 1238 (1992).
“In Connecticut, a claim of innocent misrepresentation . . . is based on principles of warranty, and . . . is not confined to contracts for the sale of goods. . . . A person is subject to liability for an innocent misrepresentation if in a sale, rental or exchange transaction
The seminal Connecticut case concerning innocent misrepresentation is Johnson v. Healy, supra, 176 Conn. 97. In Johnson, this court discussed the evolution of the common-law cause of action for innocent misrepresentation as an amalgam of tort and contract law. “Traditionally, no cause of action lay in contract for damages for innocent misrepresentation; if the plaintiff could establish reliance on a material innocent misstatement, he could sue for rescission, and avoid the contract, but he could not get affirmative relief. . . . In tort, the basis of responsibility, although at first undifferentiated, was narrowed, at the end of the [nineteenth] century, to intentional misconduct, and only gradually expanded, in this century, to permit recovery in damages for negligent misstatements. . . . At the same time, liability in warranty, that curious hybrid of tort and contract law, became firmly established, no later than the promulgation of the Uniform Sales Act in 1906. In contracts for the sale of tangible chattels, express warranty encompasses material representations which are false, without regard to the state of mind or the due care of the person making the representation. For breach of express warranty, the injured plaintiff has always been entitled to choose between rescission and damages. Although the description of warranty liability has undergone clarification in the Uniform Commercial Code, which supersedes the Uniform Sales Act, these basic remedial principles remain unaffected. At the same time, liability in tort, even for misrepresentations which are innocent, has come to be the emergent rule for transactions that involve a commercial exchange.” (Citations omitted; footnote omitted.) Id., 100–101; see also 3 Restatement (Second), Torts § 552C, p. 141 (1977); 3 Restatement (Second), supra, § 524A, p. 51.
In Johnson, this court upheld the trial court‘s verdict for the plaintiffs on their innocent misrepresentation claim. Johnson v. Healy, supra, 176 Conn. 102–103. The plaintiffs had relied on affirmative statements by the defendant that “the house was made of the best material, that he had built it, and that there was nothing wrong with it” when deciding to make their purchase. Id., 98–99. Because strict liability for innocent misrepresentation “is based on principles of warranty” that are clearly established in sales of goods, the court con
In the present case, the plaintiffs seek to extend liability for innocent misrepresentation even further, effectively rendering physicians strictly liable for statements they make in the course of medical treatment. Unlike in Johnson, we are not persuaded that these facts dictate an extension of liability.
First, in Connecticut, the tort of innocent misrepresentation generally is governed by § 552C of the Restatement (Second),12 which requires “a sale, rental or exchange transaction with another” before liability attaches. See Gibson v. Capano, supra, 241 Conn. 730 (relying on § 552C in innocent misrepresentation case involving sale of property); see also Bartholomew v. Bushnell, 20 Conn. 271, 274 (1850) (sale of horses); Little Mountains Enterprises, Inc. v. Groom, 141 Conn. App. 804, 806, 64 A.3d 781 (2013) (sale of real property); Matyas v. Minck, 37 Conn. App. 321, 333, 655 A.2d 1155 (1995) (same). The commentary to § 552C of the Restatement (Second) illuminates this language further, explaining that it encompasses “any sale, rental or exchange of land, chattels, securities or anything else of value, such as copyrights, patents and other valuable intangible rights.” 3 Restatement (Second), supra, § 552C, comment (c), p. 144; see W. Prosser, Torts (4th Ed. 1971) § 107, p. 711 (“a large group of the American courts have succeeded in prying open the door, and extending strict liability to express representations made in the course of other commercial dealings, such as the sale of land, securities, or patent rights” (emphasis added)).
The few courts that have considered this issue have concluded that the provision of professional services is not a commercial transaction for purposes of § 552C of the Restatement (Second). See Adams v. Allen, 56 Wn. App. 383, 385, 393, 783 P.2d 635 (1989) (holding that “sale, rental or exchange transaction” language in § 552C is inapplicable to physician‘s representations in course of prescribing medication), overruled on other grounds by Caughell v. Group Health Cooperative of Puget Sound, 124 Wn. 2d 217, 876 P.2d 898 (1994). Similarly, with respect to other professional services, the United States District Court for the District of Massachusetts granted a motion to dismiss when a plaintiff sought to hold a law firm liable for alleged misrepresentations regarding “the tax advantages of [an] investment” under a theory of innocent misrepresentation because the law firm was “not a party to any sale . . . .” Norman v. Brown, Todd & Heyburn, 693 F. Supp. 1259, 1260, 1264–65 (D. Mass. 1988).
In the present case, Mary Beth did not seek out Hines
Liability outside of “a sale, rental or exchange transaction” is not categorically excluded by the Restatement, as that provision includes a caveat declining to opine on “other types of business transactions, in addition to those of sale, rental and exchange, in which strict liability may be imposed for innocent misrepresentation under the conditions stated in [§ 552C].”14 3 Restatement (Second), supra, § 552C, caveat, pp. 141–42; see also E. & F. Construction Co. v. Stamford, 114 Conn. 250, 257–59, 158 A. 551 (1932) (building contractor could recover because of town‘s innocent misrepresentation of amount of rock that contractor would be required to excavate under contract for services). As a result, we next consider whether liability for innocent misrepresentations should be extended to statements made during the provision of medical services.
The plaintiffs argue that, “[i]f someone can be held liable for innocent misrepresentation in the sale of a horse, what possible reason is there to immunize a doctor—who owes a fiduciary duty to his patient—for similar omissions?” In addition, they argue that General Statutes
We initially note that the few courts that have considered this issue have uniformly declined to hold physicians strictly liable for statements made in the course of medical treatment. See Christensen v. Thornby, 192 Minn. 123, 126, 255 N.W. 620 (1934) (declining to hold surgeon strictly liable for representations in absence of negligence or fraudulent intent); Black v. Gundersen Clinic, Ltd., 152 Wis. 2d 210, 214, 448 N.W.2d 247 (App.) (“[w]e have not recognized the imposition of liability upon a doctor under the strict liability doctrine based upon misrepresentation“), review denied, 449 N.W.2d 276 (Wis. 1989). Unlike product sellers, the medical profession requires the exercise of a highly particularized skill and is often accompanied by medical opinions rather than statements of fact.16 That is not to say that a physician can never make a false statement of fact, because, if and when he or she does, a patient may sue the physician for misrepresentation. See, e.g., Doe v. Cochran, 332 Conn. 325, 342–45, 210 A.3d 469 (2019); Duffy v. Flagg, 279 Conn. 682, 697, 905 A.2d 15 (2006). But, on the facts presented by this case, the plaintiffs have not pointed to any persuasive policy reason for why this current misrepresentation scheme is insufficient and should be extended to include innocent misrepresentations.
The plaintiffs argue, however, that public policy permits the recovery of damages for personal injuries resulting from innocent misrepresentations because such claims are permitted as product liability claims under
Finally, the plaintiffs have not presented any authority applying strict liability for misrepresentations to
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
Notes
“The Court: I think that these are hearsay documents. . . . And the fact that they‘re being described as being offered for notice, I think that [the defendants‘] most recent brief is exactly on point with my thinking; that is, that these [articles] are actually being offered for the truth of the matter contained. . . . So, under the circumstances, I think these [articles] are hearsay, and I don‘t see their existence, the fact [that] they exist, being relevant to any issue we have in front of us. And, for those reasons, I‘m going to sustain the objection to the offer of these articles. . . . The fact [that] a medical controversy exists, the fact that, in these various authors’ opinions, inadequate study has been done, that physicians have an obligation to advise their patients that inadequate study has been done, that there‘s
“[The Plaintiffs’ Counsel]: The fact [that] there was a controversy in the medical community, the claim is that‘s a fact that should have been related to [Mary Beth].
“The Court: Don‘t you see that‘s the truth of the matter contained?
“[The Plaintiffs’ Counsel]: No. A publication in a proceeding saying there‘s a controversy here, it‘s basically a declaration of fact. The fact it was published shows there is a controversy.
“The Court: No, it doesn‘t. It shows [that] the articles are published. And, if the question was before us whether these articles were published and that [was] a relevant fact, but not the topics within the articles, not the content of the articles. That‘s the truth of the matter contained. That the articles exist and that you perceive them to create a medical controversy that Hines should have informed [Mary Beth] of, I understand, but that exactly looks to the truth of the matter contained in these [articles] that there is such a controversy, that he does have such an obligation. . . . I do understand that the purpose of this is to show that three articles exist in journals that he received before he instructed [Mary Beth] as to the risk, benefits and alternatives, and that he either read these and forgot [about] them or didn‘t read them, and that he had an opportunity to read them. Had he read them, the content of those [articles] would have alerted him that there was a medical controversy or inadequate scientific basis for the implantation of this mesh product . . . here. That seems to me to be the heart of the question as to the adequacy of the instruction. You‘re saying to me [that] the content of these articles is such that [Hines] should have warned her of [their] contents. I think that‘s the classic definition of, we‘re not offering them for the existence of those but, rather, for the truth of the matter contained within them, that there is a controversy.”
The defendants moved for a directed verdict on several issues, including the insufficiency of the evidence to support the plaintiffs’ claim of innocent misrepresentation, on January 14, 2016. After the defendants’ motion, the trial court discussed the inapplicability of innocent misrepresentation and heard arguments from the parties. The next day, the court directed a verdict on innocent misrepresentation in the absence of any supporting case law from the plaintiffs. This was not improper. Motions for directed verdicts are properly made at the close of a plaintiff‘s evidence, which the defendants did here. Practice Book § 16-37; see also State v. Perkins, 271 Conn. 218, 271, 856 A.2d 917 (2004) (Katz, J., dissenting) (“a motion for a directed verdict [is] made after the close of the plaintiff‘s case in a civil trial“). The trial court did not improperly raise the issue sua sponte but, instead, considered the applicability of innocent misrepresentation after the defendants moved for a directed verdict. The defendants’ argument regarding the sufficiency of the evidence was a proper mechanism under which the trial court could consider the legal sufficiency of the plaintiffs’ claim. See Fisher v. Big Y Foods, Inc., 298 Conn. 414, 440, 3 A.3d 919 (2010) (“if, as a matter of law, [a claim for innocent misrepresentation] was not implicated by the circumstances of this case, then the trial court was required to direct a verdict in the defendant‘s favor“). Although this issue might have been more efficiently resolved as a pretrial matter, the trial court did not improperly direct the verdict on the plaintiffs’ innocent misrepresentation claim because, as a matter of law, the court could not submit this claim to the jury.
“(2) Damages recoverable under the rule stated in this section are limited to the difference between the value of what the other has parted with and the value of what he has received in the transaction.” 3 Restatement (Second), supra, § 552C, p. 141.