Only a “product seller” can be held liable under the Connecticut Product Liability Act (“CPLA”). The CPLA defines a “product seller” as “any person or entity, including a wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use and consumption.” Conn. Gen. Stat. § 52-572m(a). Thus, drug and medical device manufacturers are typically named as defendants in an action where the plaintiff alleges, for example, that a failure to warn has rendered a drug or medical device defective, because the manufacturers are “in the business of selling such products.” But are hospitals? That is the question currently facing the Connecticut Supreme Court in Normandy v. American Medical Systems, Inc., et al., No. SC 20500, which was argued on December 10, 2020.

Most of the time, manufacturers are the only defendants in these cases. Plaintiffs’ attorneys typically refrain from naming healthcare providers in drug and medical device cases based on a simple rationale: they don’t want to risk alienating critical medical witnesses because their testimony could be key to the case outcome (that is, whether a product is or is not found to be defective). Plaintiffs’ counsel often believe that they’re better off trying to get healthcare providers to be advocates for their claims (often by trying to convince healthcare providers to testify that they were misled about the risks of the product) than they are suing the healthcare providers. Additionally, plaintiffs’ counsel generally view the manufacturers as having sufficiently “deep pockets” to satisfy any verdict or settlement.

But not all plaintiffs’ attorneys share this view. In Connecticut, there have been a number of cases where plaintiffs have named hospitals (alongside manufacturers) as defendants in product liability cases involving various drugs and medical devices, such as a contrast agent used during an MRI, a port-a-cath used to administer chemotherapy, a “wrist fixator” used in wrist reduction surgery, “fusion wire” used in neck surgery, and screws used in a spinal fusion. Most recently, there have been a series of cases filed in Connecticut Superior Court which, like Normandy, contend that hospitals as well as manufacturers are liable under the CPLA for allegedly defective pelvic mesh devices (used to treat stress urinary incontinence and pelvic organ prolapse) implanted by doctors through surgery conducted at the hospitals.^[1]

In Normandy, plaintiffs assert product liability claims against Bristol Hospital arising from the implantation of pelvic mesh through a surgery conducted at the hospital. The Superior Court granted Bristol Hospital summary judgment against plaintiffs’ CPLA claims, citing the fact that “every Superior Court case that has substantively addressed this issue procedurally by way of a motion for summary judgment has held that, as a matter of law, a hospital is not a ‘product seller’ under the CPLA with regards to the products and equipment provided to physicians to perform surgery or other medical procedures.” The court explained that the pelvic mesh was merely “part of” and “incidental to” the medical services provided to treat the patient’s incontinence. The fact that the hospital “marked-up” the price of the mesh when billing the patient or her insurer was deemed irrelevant. Also irrelevant was the alleged fact that the hospital “stores” mesh products on site and “conduct[s] a value analysis before ordering new products.” The court explained that none of those alleged circumstances change the fundamental fact that hospitals are “engaged in the business of providing medical services,” and “are not engaged in the business of selling equipment utilized in operative procedures.” This conclusion also aligns with the overwhelming weight of authority from other jurisdictions. As the Restatement puts it: “[m]ost jurisdictions hold that hospitals and doctors provide a service—medical treatment—and immunize them from strict liability for harm from defective products used in medical treatment, whether the product is implanted in the patient, loaned to the patient, or merely used as a tool.” Restatement (Third) of Torts: Prod. Liab. § 20 cmt. (d).

However, there is no Connecticut appellate authority directly addressing this issue.^[2] That will soon change. In Normandy, plaintiffs appealed the trial court’s decision granting summary judgment on their CPLA claims against Bristol Hospital. While the case was pending before the Appellate Court, the Supreme Court transferred the case to itself. And during oral argument held on December 10^th, the Supreme Court justices actively questioned both sides as they wrestled with a variety of hypothetical situations and potential ramifications. The timing of a ruling is unknown, but we’ll provide an update when the Court’s opinion is released.

^[1] We have represented and continue to represent hospitals in some of the Connecticut pelvic mesh cases, but are not involved in the Normandy case.

^[2] A few appellate cases have dealt with related issues. First, in Zichichi v. Middlesex Memorial Hospital (1987), the Supreme Court addressed a plaintiff’s CPLA claim against a hospital alleging that the hospital supplied him with defective blood. The court held that, pursuant to Conn. Gen. Stat. § 19a-280 (Connecticut’s “blood shield” statute), the provision of blood is a medical service—not a sale. Because the provision of services is “outside the purview of” the CPLA, plaintiff’s claim was rejected. Second, in Zbras v. St. Vincent’s Medical Center (2005), the Appellate Court briefly brushed aside a claim raised for the first time on appeal that a hospital’s billing an insurance company for devices used in surgery automatically rendered the hospital a product seller. “The defendant can bill for goods provided incidental to surgery without being in the business of selling goods,” the court explained. Third and most recently, the Supreme Court held in in Farrell v. Johnson and Johnson (2020) that a surgeon’s provision of medical services to a patient during a pelvic mesh surgery did not constitute a sale, rental, or exchange transaction, and thus the surgeon was not strictly liable for his alleged innocent misrepresentations made in connection with the surgery.