RULING ON MOTIONS TO DISMISS
I.INTRODUCTION
Plaintiff, Susan Gallinari, filed this diversity action against Defendants, David S. Kloth, M.D. (“Dr. Kloth”), Connecticut Pain Care, P.C. (“CPC”), Danbury Hospital (the “Hospital”)-and Ridgefield Surgical Center, LLC (“RSC”), alleging that Defendants injected her with a contaminated medication. Defendants have moved separately to dismiss all claims for lack of personal jurisdiction and/or failure to state a claim. For the reasons that follow, the motions are GRANTED IN PART AND DENIED IN PART.
II. FACTUAL ALLEGATIONS
The Complaint sets forth the following allegations, which the Court must accept as true at this stage. In re NYSE Specialists Sec. Litig.,
CPC, RSC, and the Hospital are healthcare providers. Compl. ¶¶ 2, 5. Dr. Kloth is a licensed physician employed by CPC. Id. ¶ 4.
On August 20, 2012, Defendants provided medical treatment to Plaintiff, including the sale and injection of compounded preservative-free betamethasone (the “Compounded Medication”) into Plaintiffs spinal column. Id. ¶¶ 10, 21-23. Defendants purchased the Compounded Medication from New England Compounding Center (“NECC”). Id. ¶ 23,
For years leading up to Plaintiffs injection, risks associated with compounded pharmaceuticals were discussed in a number of publications. See id. ¶¶ 11-17. Moreover, the Food.and Drug Administration and Centers for Disease Control and Prevention identified contaminants in medications supplied by NECC, some of which cause human disease. Id. ¶ 6. Contaminated NECC products allegedly resulted in deaths and injuries. See id. ¶7. Plaintiff clhims that Defendants knew or should have known of risks associated with the use of NECC-supplied compounded medications! See id. ¶ 18.
The Complaint has four counts: (i) battery; (ii) violations of the Connecticut Products Liability Act (“CPLA”); (iii) violation of the Connecticut Unfair Trade Practices Act (“CUTPA”); and (iv) punitive damages. The Court-addresses infra additional factual allegations unique to each count.
III. STANDARD OF REVIEW
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
The Court must accept the allegations in the complaint as true and draw all reasonable inferences in the light most favorable to the non-moving party, In re NYSE Specialists Sec. Litig.,
IY. DISCUSSION
A. Plaintiff’s Failure to Submit Mem-oranda in Opposition
Local Rule 7(a)l provides that “all mem-oranda in opposition to any motion shall be filed within twenty-one (21) days of the filing of the motion” and that “[fjailure to submit a memorandum in opposition to a motion may be deemed sufficient cause to grant the motion, except where the .pleadings provide sufficient grounds to deny the motion.” D. Conn. L. Civ. R. 7(a)l. Plaintiff did not file memoranda in oрposition to either of Defendants’ motions to dismiss. Accordingly,, the Court will grant the' motions- unless the Complaint provides sufficient grounds to deny them.
B. Applicability of Conn. Gen. Stat. § 52-190a
“[T]o prevent the filing of frivolous medical malpractice actions,” Morgan v. Hartford Hosp.,
“(a) No civil action ... shall be filed to recover damages resulting from personal injury or wrongful death ... in which it is alleged that such injury ;or death resulted from the negligence of a health care provider, unless the attorney. or party filing the action ... has made a reasоnable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint ... shall contain a certificate of the attorney or party filing the action ... that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant .... To.show the existence of such, good faith, the claimant or the claimant’s attorney ... shall obtain a written and signed opinion of a similar health care provider ... that- there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion ... and*207 shall attach a copy of such -written opinion ... to such certificate. ...
(c) The failure to obtain' and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”
The Connecticut Supreme Court has “recognizefd] that the written opinion letter, prepared.in accordance with the dictates of § 52-190a, like the good faith certificate, is akin to a pleading that must be attached to the complaint in order to commence properly the action.” Morgan,
Defendants argue that, despite the labels affixed to the four counts of the' Complaint (“Battery,” “Connecticut Products Liability Act,” “Unfair and Deceptive Trade Practices,” and “Punitive Damages”), all of Plaintiffs claims actually sound in medical malpractice. Therefore, Defendants argue, Plaintiffs failure to submit a certificate and a health care provider’s opinion requires dismissal of all her claims. The Court agrees with respect to Plaintiffs negligence claims, but disagrees with respect to her battery, strict products liability, implied warranty, and CUTPA claims.
“[T]he interpretation of pleadings is always a question of law for the court ... [and] in determining the nature of a pleading filed by a party, [the court is] not bound by the label affixed to that pleading by the party.” Votre v. Cnty. Obstetrics & Gynecology Grp., P.C.,
Typically, the inquiry is whether a claim purportedly sounding in ordinary negligence (i.e., alleging duty, breach, and resulting harm) actually sounds in medical malpractice. See, e.g., Trimel,
In this case, Plaintiffs purported claims for negligence under the-CPLA, see Compl. ¶¶ 53-68, actually sound in medical malpractice. Those claims allege that- Defendants negligently sold
The Connecticut Supreme' Court has adopted a three-prong test to determine whether a negligence claim actually sounds in medical malpractice: “[t]he relevant considerations ... are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence- is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and in
First, Defendants are sued in their capacities as medical professionals and health care providers. See Compl. ¶¶ 2, 5, 21.
Second, the Defendants’ actions related to Plaintiffs medical treatment and were of a specialized medical nature that arose out of the medical professional-patient relationship. Plaintiff sought treatment for an unspecified condition, id. ¶ 1, Defendants provided her medical treatment, including the injection of the Compounded Medication into her spinal column, id. ¶¶ 10, 21, and Plaintiff describes herself as a “patient” of Defendants, id. ¶¶ 52, 58, 59. The fact that the alleged treatment directly involved Plaintiffs medical condition is sufficient to satisfy the second prong. See Votre, 113 ConnApp. at 577,
Third, the Defendants’ alleged negligence wаs substantially related to medical treatment and involved the exercise of medical judgment. Plaintiff alleges that Defendants owed her a duty to assess and warn her of the risks associated with the Compounded Medication used to treat her, and to suspend the distribution and sale of the Compounded Medication when they discovered it to be. unreasonably danger-, ous. Compl. ¶ 54. She also alleges that Defendants were negligent in failing to inform her of risks associated with NECC-supplied medications, see id. ¶67, and failed to exercise ordinary care, see id. ¶ 57. See Simoneau,
, Under the Gold test, Plaintiffs claims for negligence under the CPLA sound in medical malpractice, not ordinary negligence. Accordingly, Plaintiffs failure to produce a good faith certificate and a health care provider’s opinion requires dismissal of those claims. Conn. Gen. Stat. § 52-190a(c). The Connecticut Supreme Court has noted that a dismissal for failure to comply with Conn. Gen. Stat. § 52-190a should be without prejudice. Morgan,
The inquiry is less clear with respect to claims that do not purport to sound in negligence. Count One of Plaintiffs Complaint asserts a claim for battery, and contains no allegations concerning duty or breach. See Compl. ¶¶ 21-32. Count Two asserts, inter alia, claims for strict products liability and breach of implied warranties, which claims do not rely on negligence allegations. See id.. ¶¶ 35-52. Count Three asserts a violation of CUTPA on the basis of alleged inflation of the price of the Compounded Medication, and contains no
Courts have concluded that claims not purporting to sound in negligence actually sounded in medical malpractice. In Votre, the plaintiff alleged inter alia intentional torts and breach of contract, and the court concluded that all of her claims actually sounded in medical malpractice. Votre,
Here, in, contrast,. Plaintiffs battery, products liability, and CUTPA claims contain unique allegations that are not merely derivative of her allegations of negligence.
First, Plaintiffs battery claim does not sound in medical malpractice because it contains allegations regarding consent that are not merely derivative of Plaintiffs negligence allegations, and because it would not require expert testimony as to the duty of care owed by Defendants. It alleges that her injection was an unconsented touching because she did not consent to receiving an injection of a medication that carried the risks that the Compounded Medication allegedly carried. See Compl. ¶¶28-30. In Landry v. Zborowski, No. TTD CV 07-6000211-S,
Second, Plaintiffs strict products liability and implied warranty claims do ‘not sound in medical malpractice. In O’Dell v. Greenwich Health Care Servs., Inc., No. FSTCV116008364,
Likewise, in this case, Plaintiffs strict products liability and implied warranty claims contain unique allegations not derivative of her negligence allegations. These claims allege that Defendants are “product sellers,” and that the Compounded Medication was defectively designed, was defect five when it reached Plaintiff, and was not merchantable or fit for the purposes for which. it was intended. See Compl. ¶¶ 36, 40-52, 69-80.
Third, Plaintiffs CUTPA claim does not sound in medical malpractice. - It alleges that Defendants artificially inflated the price of the Compounded Medication by concealing information about the risks associated with the medication. The pricing of the Compounded Medication did not involve Plаintiffs diagnosis or treatment, and did not involve conduct of a specialized medical nature. See Gold,
As the O’Dell court noted, “[a] plaintiff who suffers an injury that gives rise to a cause of action for medical malpractice is not prevented from pleading other claims that do not sound in medical malpractice and that do not need to comply with § 52-190a(a).” O’Dell,
C. Analysis of Claims under Rule 12(b)(6)
1. Count One: Battery
Count One sounds in battery. Compl. at -7. It alleges that Defendants “pierced the plaintiffs body with a needle and injected the medication,” id. ¶ 22, that Plaintiff never consented to “a procedure involving injections of non-FDA approved Compounded Medication that had been produced, purchased, received, held, delivered, and/or sold in violation of Connecticut law,” id. ¶ 29, and that therefore the “injection was an unconsented touching and thus, a battery,” id. ¶30, Finally, it alleges that “[a]s a proximate result of such battery, the plaintiff has sustained serious and permanent injuries .... ” Id. ¶ 32.
“The theory of battery as a basis for recovery against a physician has generally been limited' to situations where he fails to obtain any consent to the particular treatment or performs a different procedure from the one for which consent has been given, оr where he realizes that the patient does not understand what the operation entails.” Lambert v. Stovell,
Plaintiff has failed to state a claim for battery' because she has not alleged that she did not consent to the procedure that Defendants performed on her, has not alleged that Defendants performed a different procedure from the one for which she gave her consent, and has not alleged plausibly that Defendants realized that she did not understand what the operation entailed. To the extent that Plaintiff, had she. opposed the instant motions, would have argued that she did not consent to the procedure or understand what it “entailed” because she did not know about risks associated with NECC-supplied medications, the Court concludes that such allegations go to sufficiency of disclosure, and therefore to a claim for lack of informed сonsent, not battery. See Logan v. Greenwich Hosp. Ass’n,
2. Count Two: CPLA Claims
'[8] The Court dismissed supra Plaintiffs claims for negligence under the CPLA. Count Two also asserts claims for strict liability and breach of implied warranties under the CPLA. See Compl. ¶¶ 33-80. Defendants argue that these claims must be dismissed because Defendants are not “product sellers” under the CPLA. The Court disagrees.
The CPLA provides that “[a] product liability claim ... shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product.” Conn. Gen. Stat. § 52-572n(a). Thus, to maintain a product liability action under the CPLA, the plaintiff must establish that the defendant was a “product seller.” Zichichi v. Middlesex Mem’l Hosp.,
Defendants point to a number of Connecticut cases holding that hospitals, and health care providers were not “product sellers” under the CPLA because they were rendering medical services, rather than selling medications and/or surgical devices. But most of those cases were summary judgment rulings. While “the issue of whether a defendant is a ‘product seller’ is determinable as a question of law, ... there may be questions of fact underlying such a legal determination.” Aquarulo v. A.O. Smith Corp., No. CV095024498S,
No Connecticut appellate court has held as • a matter of law that hospitals and health care providers are not “product sellers” under the CPLA. See Labrecque v. Johnson & Johnson, No. 3:15-cv-01141 (RNC),
Accordingly, this Court has recognized the possibility of pursuing a CPLA claim against a -health care provider. See La-
Similarly, Connecticut courts have declined to dismiss CPLA claims against health care providers so long as the plaintiff properly alleged the elements of a products liability claim. E.g., Basso v. Boston Scientific Corp., No. CV0760001429S,
To recover in strict liability under the CPLA, “the plaintiff must prove that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition.” Giglio v. Conn. Light & Power Co.,
Construing the allegations in the light most favorable to Plaintiff, and drawing all reasonable inferences in her favor, the Court concludes that she has alleged plausibly that Defеndants are “product sellers,” Compl. ¶¶ 36, 41, the Compounded Medication was defective and unreasonably dangerous, id. ¶¶43, 47, the defect caused Plaintiffs injury, see id. ¶¶7, 39, 40, the defect existed at the time of sale, id. ¶ 49, and the Compounded Medication was expected to and did reach Plaintiff without substantial changé in its condition, id. ¶ 50-51. Accordingly, Plaintiff has stated a claim for strict products liability under the CPLA.
As to Plaintiffs claim for breach of the implied warranty of fitness for a particular purpose, see id. ¶ 72, Connecticut law provides that “[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified ... an implied warranty that the goods shall be fit for such purpose,” Conn. Gen. Stat. § 42a-2-315. “To establish a cause of action for breach of the implied warranty of fitness for a particular purpose, a party must establish (1) that the seller had reason to know of the intended purpose and- (2) that the buyer actually relied on the seller.” Miller v. Ne. Utilities, No. 520484,
As to Plaintiffs claim for breach of the implied warrаnty of merchantability, see id. ¶¶ 77, 79, Connecticut law provides that, unless excluded or modified, “a warranty that the goods shall be merchantable is implied iñ a contract for their sale if the seller is a merchant with respect to goods of that kind,” Conn. Gen. Stat. § 42a-2-314. “In order to state a claim for breach of the implied warranty of merchantability, a party must plead that: 1) a merchant sold the goods; 2) the goods were defective and not merchantable at the time of sale; 3) injury occurred to the buyer or his property; 4) the injury was caused by the merchant’s defective product; and 5) notice was given, to the seller of the claimed breach.” State v. McGriff, No. CV-88-0349847 S,
Plaintiff has failed to state a claim for breach of the implied warranty of merchantability because she has not alleged that she notified Defendants of the claimed breach. Nowhere in her Complaint does Plaintiff allege that - she notified Defendants of any claimed defect in the Compounded Medication. See, e.g., Travelers Prop. & Cas. Ins. Corp. v. Yankee Gas Servs. Co., No. 990266606S,
3. Count Three: CUTPA
Count Three alleges that Defendants violated CUTPA when they misrepresented and concealed material facts about the Compound Medication in order to artificially inflate its price, and thereby cаused Plaintiff to pay more than she would have in the absence of the alleged misrepresentation and concealment, resulting in an ascertainable financial, loss in the amount of the difference between the price she paid for the medication and “the cost of any of the substantially cheaper, and safer, drug alternatives.” See Compl. ¶¶ 82-89.
The Connecticut Supreme Court has held that CUTPA does not apply to claims of medical malpractice,, but only to the entrepreneurial or commercial aspects of the medical profession, such as billing. Haynes v. Yale-New Haven Hosp.,
CUTPA provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conn. Gen. Stat. § 42-110b(a). It further provides that “[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use
When determining whether a practice violates CUTPA, Connecticut courts consider “(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at leаst the penumbra of some common-law, statutory, or other established -concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).” Gaynor v. Hi-Tech Homes,
As an initial matter, the Court concludes that Plaintiffs CUTPA 'claim is not preempted by the CPLA because it does not seek redress for “personal injuries, death or' property damage,”' but rather a financial injury. Gerrity v. R.J. Reynolds Tobacco Co.,
In Gerrity, the plaintiff sued tobacco companies seeking damages for the death of his mother, who was a smoker and died of lung cancer. Id. at 122-23,
The court interpreted the CPLA’s exclusivity provision, which. provides that a CPLA claims “shall be in lieu of all other claims against product sеllers ... for harm caused by a product.” Id. at 126,
Here, Plaintiffs CUTPA claim seeks redress for a financial injury. She alleges that, as a result of Defendants’ deliberate misrepresentations and omissions,- she suffered an ascertainable loss of money in the amount of the difference between the price she paid for the Compounded Medication and “the cost of any of thе substantially cheaper, and safer, drug alternatives.” Compl. ¶¶ 85-89, Because her CUTPA claim is not “brought for personal injury, death or property damage[,]” Conn. Gen. Stat. § 52-572m(b), it does not fall within the scope of, and is therefore not preempted by, the CPLA, Gerrity, 263 Conn.11 at 129-31,
Plaintiffs allegations give rise to a plausible inference that Defendants engaged in an unfair or deceptive act or practice in the conduct of trade or commerce which
4. Count Four: Punitive Damages
Count Four seeks punitive damages. It is dismissed because “a demand for punitive damages is not a freestanding claim; rather, it is parasitic and possesses no viability absent its attachment to a substantive cause of action.” Excelsior Capital LLC v. Allen,
V. CONCLUSION
For the foregoing reasons, the motions to dismiss (ECF Nos. 10 and 13) are GRANTED IN PART AND DENIED IN PART. Count One (“Battery”), is dismissed, Count Two (“Connecticut Products Liability Act”) is dismissed in part, and-Count Four (“Punitive Damages”) is dismissed. The only remaining claims are Plaintiffs CPLA claims for strict products liability and breach of the implied warranty of fitness for a particular purpose, and her CUTPA claim.
SO ORDERED at Bridgeport, Connecticut this first day of December, 2015.
Notes
. In a similar case, this Court observed a legal question “lurking in the background ...: does Connecticut’s certifícate-of-merit requirement apply not only to malpractice claims filed in Connecticut state court but also equally to malpractice claims that have been filed in federal court?” Cornelius v. ECHN Rockville Gen. Hosp., No. 3:14-cv-00779 (JAM),
. Plaintiff's allegations are inconsistent on this point. She alleges that Defendants purchased the Compounded Medication from NECC, Compl. ¶ 23, but later alleges that Defendants "develop[ed], studied], manufacture[d], distribut[ed], and s[old]” the Compounded Medication, id. ¶ 53. Reading the Complaint- as a whole, Plaintiff’s allegations plausibly suggest that NECC manufactured the Compounded Medication at its facility, id. ¶ 18, sold it to Defendants, id. ¶23, and Defendants then sold and administered it to Plaintiff, id. ¶ 21,
. Under Connecticut law, a complaint must be properly servеd, not merely filed, within the statute of limitations. Slocum v. U.S. Dep’t of Veterans Affairs, No. 3:13-cv-00501 (SRU),
. The court did not analyze whether the products liability claim stated a claim upon which relief could be granted because the defendants had moved to dismiss only on the basis of a lack of jurisdiction. See O’Dell,