RULING RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [Dоc. No. 81]
I. INTRODUCTION
Plaintiff Charlotte Walters, a surgical technician, initiated this action in state court against Howmedica Osteonics Corporation, a/k/a Stryker Orthopaedics and Stryker Instruments (“Howmedica”). The defendant removed the action to this court pursuant to sections 1441 and 1446 of Title 28 of the United States Code. [Doc. No. 1],
Walters asserts a product liability claim under the Connecticut Product Liability Act (“CPLA”), Conn. Gen.Stat. § 52-572n(a), for injuries allegedly sustained after lifting a surgical instrument tray allegedly made by Howmedica while working in the operating room of Waterbury Hospital on July 1, 2005. Howmedica has moved for summary judgment on Walters’ claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. [Doc. No. 81].
II. STANDARD OF REVIEW
In a motion for summary judgmеnt, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law.
See Anderson v. Liberty Lobby, Inc.,
Generally, when assessing the record, the trial court must resolve all ambiguities
*47
and draw all inferences in favor of the party against whom summary judgment is sought.
Anderson, 477
U.S. at 255,
III. FACTUAL BACKGROUND 1
Charlotte Walters is a surgical technician at Waterbury Hospital. See Defendant’s Local Rule 56(a)(1) Statement (“L. R. 56(a)(1) Stmt.”) at ¶ 1. She began working there in 1975, and as of July 2005 had worked there for twenty years. Id. As a surgical technician, Walters’ duties include frequent and repetitive physical exertion, including lifting and moving patients and surgical trays (also called surgical pans). Id. at ¶ 2.
Howmedica supplies Waterbury Hospital with surgical trays. Id. at ¶ 5. Howmedica either loans trays to the hospital for particular surgeries or delivers trays in advance of surgery for the hospital to hold on consignment. Id. Waterbury hospital has a policy stating that surgical pаns shall not exceed twenty pounds. See Plaintiffs Local Rule 56(a)(2) Statement (“L. R. 56(a)(2) Stmt.”) at ¶ 1. There is a dispute as to whether this policy was communicated to any representative of Howmedica. Compare Plaintiffs Opposition to Motion for Summary Judgment (“Pl.’s Opp. to Mot. for Summ. Judg.”) [Doc. No. 84], Exh. B (document stating Waterbury Hospital’s weight policy that is signed by Matt Allison, a representative of Stryker instruments) with Hudson Dep. at 38; Blouin Dep. at 51 (testimony asserting that Howmedica is a distinct entity from Stryker Instruments, that Robert Blouin was Howmedica’s sole representative to Waterbury Hospital, and that the weight policy was never conveyed to Mr. Blouin).
On July 1, 2005, Walters was covering a portion of a surgery for the partial revision of an acetabular component of an artificial hip. L.R. 56(a)(1) Stmt, at ¶¶ 10, 11. One of Walters’ tasks for preparing for surgery was to lift instrument trays from a waist-high table and move them to another waist-high table where the surgeon could more easily access the instruments. Id. Walters was aware that certain types of surgeries, including orthopedic surgeries, are especially labor intensive because they usually involve more instruments and heavier instrument trays. Id. at ¶ 3. For the July 1, 2005 surgery, fourteen instrument trays in all were used, eleven of which were Howmedica trays that Waterbury Hospital held on consignment. Id. at *48 ¶¶ 5, 13. The remaining trays were owned by the hospital. Id. at ¶ 13.
Walters began her work by transferring a general instrument hospital-owned tray, which felt very light. Id. at ¶ 17. Walters then proceeded to lift the Howmedica trays. After lifting “one оr two” of such trays, and while in the process of lifting another, Walters felt a pain in her neck and shoulder. Id. After feeling pain, Walters continued to transfer the remaining trays. Id. Walters alleges that she has sustained numerous injuries as a result of the incident that continue to afflict her. See Plaintiffs Complaint (“Cmplt.”) [Doc. No. 1 at Exh. A]. None of the trays were weighed. L.R. 56(a)(1) Stmt, at ¶ 18.
Walters is unable to identify the specific instrument tray that she was handling when she was injured. Id. Walters did not personally weigh any of the trays, and no one from Waterbury hospital knew the weight of any of the trays used for the surgery. Id. at ¶¶ 18-19.
IV. DISCUSSION
In her Complaint, Walters brings several counts against Howmedica under the CPLA. See Cmplt. In the First Count, Walters brings a strict liability claim under the CPLA in which she alleges that the Howmedicа trays in question were manufactured with a design defect; she further alleges that this defect caused her injuries. Id. at 1-5. In the Second Count, Walters alleges that Howmedica acted negligently in manufacturing, failing to inspect, and delivering medical trays that exceeded the weight limit policy of Waterbury Hospital, and that Howmediea’s negligence caused Walters’ injuries. Id. at 5-10. In the Third Count, Walters alleges that Howmedica acted with reckless disregard for the safety of consumers, and she seeks punitive damages and attorney’s fees. Id. at 10-11. Throughout these counts, Walters also alludes to a breach of warranty claim against Howmedica. See, e.g., id. at 4. Howmedica has moved for summary judgment of each of these сounts. See Defendant’s Mot. for Summary Judgment (“Deft’s Mot. for Summ. Judg.”) [Doc. No. 81],
A. Product Liability Claims under the CPLA
The court will address each of these counts individually even though the CPLA creates the “exclusive remedy for claims falling within its scope.”
Winslow v. Lewis-Shepard, Inc.,
*49
Furthermore, while Walters’ claims exist within the CPLA framework, those claims retain their character as they existed at common law. The enactment of the CPLA did not displace common law theories of liability. The CPLA defines a product liability claim as including, but not limited to, “all actions based on the following theories: strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent.” CONN. GEN. STAT. § 52-572m(b). “This definition incorporates the common law theories of liability; it does not abolish them.” Robert B. Adelman & Mary Ann Connors,
The Legal Framework of a Products Liability Case in Connecticut,
67 CONN. B.J. 355, 359 (1993). In analyzing Walters’ claims, then, the court must “look first [to] the CPLA and-where that statute is silent-[it must] look to Connecticut common law for guidance.”
Lamontagne I,
B. Walters’ Strict Liability Claim Under the CPLA
In her Complaint, Walters alleges that Howmedica “designed, distributed and sold the products in a defective condition unreasonably dangerous to the plaintiff.” Cmplt. at 3. The CPLA recognizes an action grounded in strict liability for a product defect.
See
CONN. GEN. STAT. § 52-572n. Connecticut courts have adopted the strict liability test established at § 402A of the Restatement (Second) of Torts.
Potter v. Chicago Pneumatic Tool Co.,
Howmedica argues that, under Connecticut law, summary judgment should be granted as to Walters’ strict liability claim because Walters has offered no evidence that creates a genuine issue of material fact as to whether there existed a design or manufacturing defect that rendered the Howmedica surgical tray “unreasonably dangerous.” See Deft’s Mot. for Summ. Judg. at 9-14. To support this position, Howmedica offers the expert opinion of Dr. Jorge Ochoa, a biomechanical engineer. See Report of Dr. Jorge Ochoa, Deft’s Mot. for Summ. Judg., Exh. E (“Ochoa Report”). Dr. Ochoa’s Report catalogues the numerous concerns that must be considered in designing a surgical tray. Id. at 4-6. Dr. Ochoa asserts that, because “delivery trays contain instruments laid out in an optimum, systematic manner to accomplish a surgical procedure, the number of instruments and total weight of the loaded tray is ultimately based on the shape, size and density of individual instruments and their distribution within the tray.” Id. at 5-6. It is Dr. Ochoa’s opinion that Howmedica properly contemplated these factors and developed an appropriate design for all of its surgical trays:
*50 During the design/process validation activities, the [Stryker] Trident
Acetabular and Cutting Edge Express/Advantage instrument trays were weighed in their fully assembled configurations in order to сalculate their bulk density, the parameter utilized to establish equivalency to the documented sterilization validation process for steam sterilization of reusable instruments at Stryker Orthopaedics. Review of sterilization process validation documentation reveals that all Trident Acetabular and Cutting Edge Express/Advantage fully loaded instrument trays weighed less than 22 pounds, and were found to be adequately sterilizable following Stryker Orthopaedics’ recommended procedures. The delivery trays provide instrument-designated content locations that allow for even weight distribution and efficient operative and perioperative deployment.
Id. at 6. Moreover, Dr. Ochoa has cоncluded that, “based on the review of design records, operative and perioperative notes, and my experience in the design of orthopaedic surgical implants and instruments, it is my opinion that the Stryker [instruments] and related tray delivery systems meet their intended design, regulatory and customer requirements, provide end user and patient safety, and are not defective.” Id. at 8.
Although Dr. Ochoa’s Report provides an assessment of Howmediea trays in general and not an assessment of a specific tray that allegedly caused Walters’ injuries, this is in no way due to the fault of Howmediea. Walters is unable to identify the specific instrument tray that allegedly caused her injury, did not seek to set that tray aside after it caused her injury, and cannot recall the types of instruments contained on the tray. L.R. 56(a)(1) Stmt, at ¶ 18. Given that Walters’ Complaint only alleges that an unidentified Howmediea tray caused her injuries, Dr. Ochoa’s conclusion that all Howmediea trays are generally not defective is sufficient to fulfill Howmedica’s burden of demonstrating that there are no genuine issues of material fact in dispute with respect to the strict liability component of the CPLA claim.
See Liberty Lobby, Inc.,
Walters does not provide any evidence of her own to establish that the tray in question was “unreasonably dangerous.”
2
In fact, Walters fails to address that claim in hеr Opposition to Howmedica’s Summary Judgment Motion, and admitted at oral argument that she can likely only maintain a claim for negligence.
See
PL’s Opp. to Mot. for Summary Judgment [Doc. No. 84], A litigant opposing summary judgment “ ‘may not rest upon mere conclusory allegations or denials as a vehicle for obtaining trial.’ ”
Quinn v. Syracuse Model Neighborhood Corp.,
*51
The Supreme Court of Connecticut has “long held that in order to prevail in a design defect claim, ‘[t]he plaintiff must prove that the product is unreasonably dangerous.’ ”
Potter,
C. Walters’ Negligence Claim Under the CPLA
In the Second Count of her Complaint, Walters alleges that her “injuries and consequential losses were the result of the carelessness and negligеnce of the defendant, its agents, servants and/or employees ... in that [the defendant] was negligent and careless in the distribution and sale of the surgical pans and that it failed to properly supply the Waterbury Hospital with the appropriate weight surgical pans.” Cmplt. at 7-8. To maintain her claim for negligence, Walters must establish: (1) duty; (2) breach of that duty; (3) causation; and (4) actual injury.
Angiolillo v. Buckmiller,
Before addressing the merits of Walters’ negligence claim, it is first necessary to consider Howmedica’s contention that the negligence claim “must be dismissed because negligence is subsumed within Plaintiffs products liability cause of action and may not be brought as a separate cause of action.” Deft’s Mot. for Summ. Judg. at 17. Walters’ negligence claim should not be dismissed, nor should Howmedica prevail on summary judgment, solely on the basis that the claim is preempted by the CPLA. The CPLA creates a consolidated cause of action for all product liability claims, which “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). However, as noted in greater detail in Part IV A,
swpra,
though the CPLA creates the “exclusive remedy for claims falling within its scope,”
Winslow v. Lewis-Shepard, Inc.,
1. Duty and Breach
In its Motion for Summary Judgment, Howmedica argues that Walters has not establishеd a genuine issue of material fact as to whether Howmedica breached a duty it owed to Walters. See Deft’s Mot. for Summ. Judg. at 9-14. As discussed in Part IV B, supra, Howmedica has offered the expert opinion of Dr. Ochoa in which he opines that numerous factors must be considered in designing effective surgical trays. See Ochoa Report at 4-5. *52 Howmedica contends that any standard of care that it owed to Walters would have to be established with these factors in mind by an expert familiar with the surgical tray design process. See Deft’s Mot. for Summ. Judg. at 13-14. Because Walters has not come forward with any evidence to establish such a standard of care, Howmedica argues it is entitled to judgment as a matter of law. Furthermore, Howmedica notes that Dr. Ochoа concluded that Howmedica’s trays are not unreasonably heavy and “provide end user and patient safety.” Ochoa Report at 8. Howmedica also contends, therefore, that even if Walters had properly established a standard of care for her negligence claim, she has offered no evidence to contradict Dr. Ochoa’s testimony and support the conclusion that Howmedica exceeded that standard.
The court agrees that Walters has not sufficiently demonstrated the proper standard of care. As Dr. Ochoa’s Report makes patently clear, the design and construction of surgical trays is a complex process that requires the consideration of a substantial number of variables. “If the determination of the standard of care requires knowledge that is beyond the experience of an ordinary fact finder, expert testimony will be required.”
Santopietro v. City of New Haven,
Walters provides no such evidence, however. Walters alleges that the deposition of Rob Blouin proves that Howmedica received notice of Howmedica’s twenty-pound weight-limit policy for surgical trays. See Opposition at 2. Because the twenty-pound policy was “effectively communicated,” Walters contends that Howmedica should be held accountable to abide by this policy. Id.
There are real disputes as to whethеr Howmedica did, in fact, have notice of Waterbury Hospital’s weight-limit policy.
3
The court must resolve all ambiguities and draw all inferences in favor of Walters, the party against whom summary judgment is sought.
Anderson,
Nonetheless, even if the court makes that assumption, the fact that Howmedica agreed to comply with the weight-limit policy is insufficient to create a material issue of fact as to her negligence claim. Howmedica’s alleged failure to abide by Waterbury Hospital’s weight-limit policy may give rise to an action in contract by Waterbury Hospital, but it does not givе rise to an action in tort by Walters. Although under Connecticut law a “party may be liable in negligence for the breach of a duty which arises out of a contractual relationship,”
Johnson v. Flammia,
Walters attempts to maintain a cause of action for negligence only by showing that Howmedica violated its agreement with Waterbury Hospital not to provide trays that exceed twenty pounds. Yet under Connecticut law, this is insufficient to sustain a negligence claim. “To establish a negligence claim a plaintiff must allege that the defendant owes some duty imposed by law, i.e., a duty other than imposed by the parties’ contract.”
State v. Maximus, Inc.,
No. HHDCV075015239S,
Walters has failed to provide necessary expert testimony on what constitutes the proper standard of care fоr a surgical tray designer and manufacturer. Under Connecticut law, Walters cannot correct that failure by averring that Howmedica breached its agreement with Waterbury Hospital not to deliver trays that weigh in excess of twenty pounds. Because Howmedica has established that there are no genuine issues of material fact as to whether Howmedica breached any duty of care to Walters and because Walters has not “set forth specific facts showing there is a genuine issue for trial,” the court grants summary judgment to Howmedica on the negligence claim.
Anderson,
2. Causation
Howmedica also argues that summary judgment of the negligence claim should be granted because Walters has failed to еstablish that there are genuine issues of material fact with respect to causation.
See
Defendant’s Mot. for Summary Judgment at 14-17. “An essential element of any negligence action is the establishment of the defendant’s conduct as a proximate cause of the plaintiffs injury.... The causal relation between the defendant’s wrongful conduct and the plaintiffs injuries must be established in order for the plaintiff to recover damages.”
Wu v. Town of Fairfield,
Howmediea presents two arguments that support granting summary judgment on the basis that Walters has not sufficiently demonstrated causation. First, Howmediea argues that testimony from an expert with specialized medical knowledge is necessary to prove causation in eases where the plaintiff alleges that physical injury resulted from a defendant’s conduct; because Walters has not provided such testimony, her negligence claim fails. See Defendant’s Mot. for Summary Judgment at 15. Second, Howmediea argues that, even if Walters demonstrated that the surgical tray caused her physical injuries, she has offered no evidence that the excess weight of the surgical tray caused those injuries. Id.
Walters contends that “[ejxpert testimony should not be required to substantiate causation when it occurs during a specific event and the injury can immediately be attributed to a specific action,” yet she provides no legal authority for that proposition. Opposition at 8. In support of her claim that the surgical trays caused her injury, Walters offers the testimony of her co-worker, Arlene Hudson, who noticed a “pain on the face” of Walters and heard Walters complain of a pain in her arm, neck, and shoulder area “immediately upon [Walters] lifting the pan.” L.R. 56(a)(2) Stmt, at ¶ l. 4 No other evidence regarding causation is put forward by the plaintiff.
Under certain circumstances, the Supreme Court of Connecticut “has held that expert testimony is required to establish causation.”
Aspiazu v. Orgera,
In this case, the nature of Walters’ claim requires the use of expert testimony to demonstrate causation. Walters alleges that the excessive weight of Howmedica’s surgical tray caused shoulder, neck, and spine injuries.
See
Cmplt. at 5, 8-9. Ascertaining the source of these complex injuries is a task that exceeds the “sphere of the common knowledge of a lay witness.”
Collette,
“While it seems to the court that, under Connecticut law, Walters should provide expert testimony as to causation to support her claim, Walters has not done so and cannot do so in the future. The court has precluded Walters from calling any experts or offering expert opinions on the issue of causation because Walters failed to properly follow discovery rules. See Ruling Granting Motion to Preclude Certain Expert Opinions (Fitzsimmons, MJ.) [Doc. No. 77], Due to this lack of expert testimony, Walters has not come forward with the evidence necessary to create a material issue of fact in this case as to her negligence claim with respect to the еlement of causation. Although the court acknowledges that this issue presents a close question under Connecticut law, it appears that this provides another basis on which it is appropriate to grant Howmedica’s Motion for Summary Judgment as to the negligence basis for her CPLA claim in addition to the first basis articulated in Part IV. C. 1, supra, that Walters failed to demonstrate that Howmedica has breached any duty of care.
D. Walters’Breach of Warranty Claim
In her Complaint, Walters alleges that Howmedica “breached the statutory warranty and merchantability in supplying said surgical pans which were not fit for the ordinary purposes for which they were sold” and that Howmedica “breached the aforesaid implied warranties and that the surgical pans were not of merchantable quality, fit or safe for the purposes for which they were distributed and sold to the Plaintiff.” Complaint at 3-4. Walters may bring this action for breach of warranty under the CPLA. Conn. Gen.Stat. § 52-572m(b). Because the CPLA is silent as to the elements of a cause of action for breach of warranty, Walters may rely — and in fact seems to rely — on another statutory source: the Connecticut Uniform Commercial Code, Title 42a of the Connecticut General Statutes (“CUCC”).
The CUCC defines implied warranties in two provisions. Connecticut General Statute section 42a-2-315 provides: “[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 under section 42a-2-316 an implied warranty that the goods shall be fit for such purpose.” Conn. Gen.Stat. § 42a-2-315. Furthermore, Connecticut General Statute section 42a-2-314 provides: “[u]nless excluded or modified as provided by section 42a-2-3I6, a warranty that the goods shall be merchantable is implied in a contract with respect to goods of that kind.” Conn. Gen.Stat. § 42a-2-314. This implied warranty of merchantability “acts as a guarantee by the seller that his goods are fit for the ordinary purposes for which they are to be used and will pass in the trade without objections.”
Blockhead, Inc. v. Plastic Forming Co., Inc.,
Howmedica appropriately argues that Walters has failed to demonstrate that the surgical trays delivered to Waterbury Hospital were unfit for either their known or ordinary purposes under sections 42a-2-314 and 42a-2-315 of the CUCC. As explained in greater detail in Part IV. B., supra, Walters has offered no evidence to support the conclusion that the surgical tray in question was in any way defective or unfit for its ordinary or known use.
Furthermore, within a claim for breach of implied warranty, the plaintiff has the
*56
burden of proving causation.
See
§ Conn. Gen.Stat. 52-572n(a) (setting forth product liability claims under CPLA “for harm caused by a product”);
Blockhead, Inc.,
Walters does not provide any evidence to establish that the tray in question was unfit for its known or ordinary purpose, nor does she provide any evidence that her alleged injuries were caused by the tray being unfit for its purpose. In fact, Walters all but deserts her breach of warranty claim by not once referencing it in her Opposition, and by conceding at oral argument that, in all likelihood, only a CPLA claim under a negligence theory can be maintained.
5
See
PL’s Opp. to Mot. for Summary Judgment. Walters has nоt “set forth specific facts showing that there is a genuine issue for trial” with respect to her breach of warranty cause of action. Thus, Howmedica’s Motion for Summary Judgment is granted as to the breach of warranty basis for her CPLA claim.
Anderson, 477
U.S. at 255,
E. Walters’ Claim for Attorney’s Fees and Punitive Damages
In Count Three of her Complaint, Walters seeks punitive damages because her injuries “are the result of the Defendant’s reckless disregard for the safety of consumers....” Cmplt. at 10-11. 6 Under Connecticut law, punitive damages may be awarded in products liability actions “if the claimant proves that the harm suffered was the result of the product seller’s reckless disregard for the safety of product users, consumers or others who were injured by the product.” Conn. Gen.Stat. § 52-240b.
Howmedica argues that summary judgment of Walters’ claim for punitive damages is proper because Walters offers no evidence to support the conclusion that Howmedica acted with “reckless disregard.” See Defendant’s Mot. for Summary Judgment at 18-19. The court agrees. There is no indication in the record whatsoever that Howmedica acted with reckless disregard. Dr. Ochoa concluded that Howmedica developed trays that complied with regulatory and customer requirements. See Ochoa Report at 8. Furthermore, Howmedica has stated that they “have received no such complaints of any injury or occurrence involving injury as alleged in the plaintiffs Complaint.” Defendant’s Response to PL’s First Set of Interrogatories, Mot. for Summary Judgment, Exh. C at ¶ 10. There is therefore no indication that Howmedica has ignored a manifest problem in its surgical trays.
In its response to Howmedica’s Motion for Summary Judgment, Walters does not reassert her claim for punitive damages. See PL’s Opp. to Mot. for Summary Judgment. Furthermore, at oral argument, Walters concedes that it is unlikely that *57 she would be able to maintain her claim for punitive damages. Because Walters has not demonstrated a genuine issue of material fact as to whether “the harm suffered was the result of the product seller’s reckless disregard for the safety of product users,” Howmedica’s Motion for Summary Judgment as to the claim for punitive damages is granted. Conn. Gen.Stat. § 52-240b.
In her Complaint, Walters also seeks attorney’s fees. See Cmplt. at 11. Connecticut law provides that, in a products liability action, if “the court determines that the claim or defense is frivolous, the court may award reasonable attorney’s fees to the prevailing party.” CONN. GEN. STAT. § 52-240a. Howmedica’s defense is plainly not frivolous, and Walters is therefore not entitled to attorney’s fees. Howmedica’s Motion for Summary Judgment as to this claim is granted.
IV. CONCLUSION
For the foregoing reasons, the defendants’ Motion for Summary Judgment [Doc. No. 81] is GRANTED. The Clerk is ordered to close the case.
SO ORDERED.
Notes
. For the purposes of the instant motion, the court accepts facts undisputed by the parties and supported by evidence as true, and resolves disputed facts in favor of the party against whom the motion under consideration is made. Although Walters filed a Statement of Undisputed Material Facts pursuant to Local Rule 56(a)(2) (albeit she refers to Local Rule 56(a)(1)), she did not state in separately numbered paragraphs "corresponding to the paragraphs contained in the moving party’s Local Rule 56(a)! Statement whether each of the facts asserted by the moving party is admitted or denied,” nor did she provide in a separate section "a list of each issue of material fact as to which it is contended there is a genuine issue to be tried.” L.R. 56(a). We therefore accept as true those statements of undisputed material facts made in Howmedica's 56(a)(1) Statement. Despite the failure of Walters' counsel to properly draft the mandatory 56(a)(2) Statement, the court will nonetheless address the legal matters presented by the Motion for Summary Judgment.
. Nor does Walters identify any genuine issues of material fact as to her strict liability claim as required by Local Rule 56(a). See L.R. 56(a)(2) Stmt.
. Despite defense counsel’s erroneous assertion that there is no support for the allegation that Howmedica had notice of the weight limit policy, the record demonstrates that there is a genuine issue of material fact with respect to this issue. Walters provides a document that states the policy and is signed by Matt Allison, a representative of Stryker Instruments. See Opposition, Exh. B аt Bates No. Waterbury 00019. Walters also provides the business card of Rob Blouin, Howmedica’s representative to Waterbury Hospital, which lists “Stryker Howmedica Osteonics” as Mr. Blouin's employer. See id. at unmarked last page. Howmedica responds by claiming that Mr. Blouin was Howmedica's only representative to Waterbury Hospital, and that Waterbury Hospital had never communicated the weight-limit policy to Mr. Blouin. See Defendant’s Reply Mem. [Doc. No. 86] at 7 (citing Hudson Dep. at 38; Blouin Dep. at 51).
. The court cites to Walters’ Statement of Undisputed Material Facts and not the deposition itself because, while Walters attached portions of the Hudson deposition to her Opposition as Exhibit A, Walters did not attach thе portion of the deposition that contained this testimony (p. 26). Notwithstanding this failure to present this evidence to the court, for purposes of resolving the Motion for Summary Judgment, the court will assume that the deposition contains the content that Walters alleges it contains in her Statement of Undisputed Material Facts.
. Additionally, Walters fails to identify any genuine issues of material fact as to her breach of warranty claim as required by Local Rule 56(a). See L.R. 56(a)(2) Stmt.
. While Walters styles this ''claim" as a separate cause of action, it merely reasserts Count Two, adds an additional allegation of reckless disregard, and seeks heightened damages. Cmplt. at 10. Although this is not a separate cause of action, the court will address this claim for heightened damages separately because Walters asserted it as a separate claim in her Complaint.