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Our firm represents a couple of companies in the vaginal mesh MDL, so it is difficult for us to write on that, er, fascinating litigation. But one of our clients solved that problem for us by extricating itself from a lawsuit, leaving behind interesting issues about a hospital’s potential exposure in a product liability case. In Normandy v. American Medical Systems, et al., 2019 Conn. Super. LEXIS 1711 (CT Super. Ct. May 29, 2019), the “et al.” was the hospital where the device implant took place. The plaintiff asserted causes of action for violations of the Connecticut Product Liability Act and the Connecticut Unfair Trade Practices Act against both defendants, but then withdrew the complaint against the manufacturer. The plaintiff filed an amended complaint against the hospital that included the two statutory theories, and also added common law actions for negligence, recklessness, breach of warranty, and civil conspiracy. The hospital moved for summary judgment on the grounds that it was not a product seller and that the case was barred by the statute of limitations.

The trial court in Normandy ruled that a hospital is not a “seller” for purposes of product liability. Hospitals provide a service. They do not sell the products or equipment employed in rendering such service. Those products are incidental to the service. The court’s reasoning covered both prior lower court Nutmeg State authority (the appellate courts had not faced the issue squarely) as well as cases nationwide in reaching this result. You can now add the Normandy case in support of the majority, and better, rule. We have catalogued court decisions following this better rule here.

The plaintiff tried to evade the three year statute of limitations – the surgery was in 2009 and the lawsuit was not filed until 2015 – by arguing that she had not discovered a problem until 2014. But the Connecticut statute (which sounds far more delightful than would expect from a state that has unleashed overeager highway patrolmen on its interstates and inflicted Yale University on the nation) has a statute of repose section that clamps down on any action filed more than three years after the occurrence or omission giving rise to the claim. But, like an undersized Eli running back futilely pushing against the steadfast Crimson line, the plaintiff kept trying, arguing that there was continuing conduct and fraudulent concealment by the hospital. That argument, like the Yale English Department’s miserable infatuation with deconstructive literary criticism, was a failure. A product non-seller (so we’re back to that fundamental concept) of a product, such as a hospital, does not have any post-sale duty to warn. Moreover, duty or no duty, there could be no fraudulent concealment claim against a hospital that had no post-surgical dealings with the plaintiff.

For a case involving a surgery in 2009 and a complaint filed in 2015, Normandy took a fairly long time to resolve. In addition to the amendment of the complaint, with addition of several new theories, the plaintiff asked for more discovery, etc. Time goes fast when you’re having law. But in the end, the court knew a loser case when it saw one. Better late than never.