We are back from a weeklong vacation in Greece, with time split between Athens and a lovely, tiny, lightly-touristed island called Symi.  We offer these observations:

• It is challenging, but not impossible, to enjoy the copious culinary offerings on international flights without removing one’s N-95 and face shield.
• The fifteen-hour overnight ferry trip from Athens to Symi is its own vacation – a mini-cruise on a surprisingly large and lovely vessel.
• If your parents really walked five miles back and forth to school, uphill in both directions, they probably lived in Greece.
• If we were forced to subsist on nothing but Greek-made feta and baklava, we’d do just fine.

It was a great adventure and a welcome taste of near-normalcy, but we are glad to be home, COVID-negative, and reporting today’s correctly-reasoned decision, Normandy v. American Medical Systems, Inc., — A.3d —, 2021 WL 3482928 (Conn. Aug. 9 2021).  Normandy is the Connecticut Supreme Court’s decision on the appeal of a decision on which we reported just over two years ago.  In that decision, the trial court granted summary judgment for the defendant hospital, holding that: 1) the hospital was not a “product seller” for purposes of the plaintiff’s strict liability claims under Connecticut’s product liability statute; and 2) the plaintiff’s common-law claims and her claims under Connecticut’s unfair trade practices statute (“CUTPA”) were time-barred.   (The plaintiff had already withdrawn her complaint against the named defendant, the manufacturer of her pelvic mesh device.)

“Product Seller”

On appeal, the plaintiff argued that the hospital “was engaged in the business of selling mesh slings and that the primary, if not sole, purpose of [the hospital’s] relationship with [the plaintiff] was providing the sling to be implanted by [the implanting physician’s medical practice].”  Normandy, 2021 WL 3482928 at *3 (internal punctuation and citation omitted).  She asserted that “evidence of [the hospital] regularly stocking pelvic mesh products, marketing the . . . sling on its website, and selling the device at a markup” created issues of fact that should have defeated summary judgment.  Id.  The hospital countered that the trial court had correctly concluded that the hospital was not a “product seller” because it was not “engaged in the business” of selling the mesh sling and because “the nature of the relationship between [it] and the plaintiff was that of medical service provider and patient.”  Id. (internal punctuation and citation omitted).

The Court agreed.  It explained that, under prevailing Connecticut law, a party is a “product seller” when “a sale of a product is a principal part of the transaction” and “the essence of the relationship between the buyer and the seller is not the furnishing of professional skill or services.”  Id. (emphasis in original, internal punctuation and citations omitted).   The Court also cited the Restatement (Third) of Torts, Product Liability §20, reporters’ note to comment d, for the proposition that “most jurisdictions hold that hospitals and doctors provide a service – medical treatment – and immunize them from strict liability for defective products used in medical treatment, whether the product is implanted in the patient, loaned to the patient, or merely used as a tool.”  Id.

The Court emphasized that the record did not support the plaintiff’s argument that the hospital advertised and marketed the sling on its website.  Instead, the hospital’s website provided information on different types of treatments for the condition from which the plaintiff suffered, but the content was “purely educational or informational in nature” – nowhere did the website mention the specific sling the plaintiff received.   While the website for the implanting surgeon’s medical practice group did mention the sling, there was “no evidence that the [hospital had] any control over the medical practice group’s webpage.”  Id. at *5.  The Court concluded, “Thus, if the defendant’s website constitutes advertising at all, it is advertising the hospital as a service provider.”  Id.

The plaintiff also argued that “the essence” of her relationship with the hospital was for procurement of the sling because “the defendant obtained and stocked the mesh sling, any services provided were dependent on its sale, and the defendant billed” the plaintiff’s insurance company for significantly more than it had paid for the sling.  Again, the Court disagreed, stating, “The mere fact that the defendant billed for the . . . sling does not conclusively establish that its sale was the main purpose of the plaintiff’s relationship with the defendant,” even if it profited from the sale.  Finally, the Court considered “other indicia that the essence of the transaction” was for services, not for the sale of the product:  the largest portion of the bill the hospital submitted to the plaintiff’s insurance carrier was not for the sling but was for other supplies and recovery and operating room services.”  While “not dispositive, the fact that the majority of the bill was for services, rather than products, strongly indicate[d] that the essence of the transaction was for the provision of services.”  Id. at *7 (citations omitted).  In sum, the Court concluded, because the hospital did not advertise the sling for sale to patients and because the transaction between the plaintiff and the hospital was primarily for services, not for the sale of the product, “the trial court correctly determined that the defendant was not a product seller as a matter of law” and correctly granted summary judgement on the plaintiff’s product liability claims.

Statute of Limitations/Statute of Repose

The plaintiff argued that the trial court incorrectly held that the CUTPA and common-law claims were time-barred, finding that the statutes of limitations and repose for those claims were not tolled under either the doctrine of “continuing course of conduct” or the doctrine of fraudulent concealment.

First, the plaintiff argued that the statutes were tolled under the “continuing course of conduct doctrine” because the hospital “continued to market and promote mesh slings after the plaintiff’s surgery, while concealing the risk” of the procedure until at least a year after the plaintiff filed her complaint.  Id. at *8.  The court reiterated that the hospital’s web site did not mention the sling, and, while the implanting surgeon’s medical practice’s web site did mention the sling, there was no evidence that the hospital had any control over this web site.  Moreover, there was no evidence that the plaintiff ever saw the hospital’s web site or received any marketing materials from the hospital.  The Court concluded, “Because there is no evidence that the defendant committed the initial wrong of marketing the product in a way that contributed to the plaintiff’s injury, the continuing course of conduct doctrine does not toll the statute of limitations applicable to the plaintiffs’ CUTPA claim.”  Id. at *8 (emphasis in original).  The Court continued, “We further conclude that the [hospital] did not have an independent duty to inform the plaintiff of the risks associated with a mesh sling implant procedure, even after the procedure ha[s] been completed . . . .”  As such, there was no genuine issue of material fact as to whether the continuing course of conduct doctrine tolled the statute of limitations applicable to the plaintiff’s common-law claims.  Id. at *9.

Finally, the plaintiff argued that the applicable statutes of limitations and repose were tolled under the doctrine of fraudulent concealment because the defendant “had actual knowledge of the dangers associated” with the implant procedure and “intentionally concealed that information from the plaintiff.”  Id.   In response, the Court noted that the hospital’s web site listed risks associated with the sling implant procedure and referred to FDA comments about the procedure, and that there was no evidence that any alleged concealment by the hospital was for the specific purpose of delaying the filing of the complaint.  Hence, the doctrine of fraudulent concealment, like the doctrine of continuing conduct, did not apply, the statutes of limitations were not tolled, and the claims were time-barred.

And, just that neatly, the Court affirmed the trial court’s grant of summary judgment, nailing shut the coffin on the plaintiff’s claims.  We love the no-nonsense approach and solid reasoning of this decision, and we agree with its holding.  (As do many courts – you can see our post cataloguing such decisions here.)  We are happy to be back “stateside” to report this to you, and we will keep our eye out for similar decisions.  In the meantime, stay safe out there.