Normandy v. American Medical Systems, Inc. ( 2021 )

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DEBRA NORMANDY ET AL. v. AMERICAN
MEDICAL SYSTEMS, INC., ET AL.
(SC 20500)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
The plaintiffs, D and M, sought to recover damages from the defendant B
Co. for its alleged negligence, recklessness, and civil conspiracy, and
for its alleged violations of the Connecticut Unfair Trade Practices Act
(CUTPA) (§ 42-110a et seq.) and the Connecticut Product Liability Act
(§ 52-572m et seq.), in connection with a surgical procedure performed
at B Co.’s hospital. Specifically, in 2009, D’s obstetrician and gynecologist
implanted a mesh sling manufactured by the defendant A Co. in D’s body
for the purpose of treating her stress urinary incontinence. Although
D’s obstetrician and gynecologist was not an employee of B Co., she
has privileges to practice at B Co.’s hospital, where the procedure
occurred. The sling implanted in D was stocked by B Co.’s hospital at
the request of some of the physicians who have privileges there, and B
Co. paid A Co. $900 for the sling and then billed D’s health insurance
carrier $4230 for it. In 2014, D was diagnosed with ‘‘mesh exposure’’
and had the sling removed. In 2015, the plaintiffs commenced this action
against A Co. and B Co. but subsequently withdrew their claims against
A Co. The plaintiffs alleged, inter alia, that B Co. had engaged in the
business of placing A Co.’s slings into the stream of commerce by
purchasing them from A Co., stocking and marketing them, and selling
them to patients and medical professionals. The trial court granted B
Co.’s motion for summary judgment, concluding that the plaintiffs’ prod-
uct liability claim failed because B Co. was not a product seller and
that the plaintiffs’ CUTPA and common-law claims were time barred
under the three year statutes (§§ 42-110g (f), 52-577 and 52-584) of
limitations and repose. The trial court also determined that the limitation
and repose periods had not been tolled by either the continuing course
of conduct or the fraudulent concealment doctrine. On the plaintiffs’
appeal, held:
1. The trial court correctly concluded that there was no genuine issue of
material fact as to whether B Co. was a product seller of the A Co. sling
for purposes of the plaintiffs’ product liability claim and, accordingly,
properly granted B Co.’s motion for summary judgment in connection
with that claim: the jurisdictions that have considered the issue, which
is one of first impression in Connecticut, have predominantly held that
hospitals are providers of a service, namely, medical treatment, and are
immune from strict liability for the harm caused by defective products
used in the medical treatment of patients, and, under the circumstances
of the present case, this court agreed that B Co. was not a ‘‘product
seller,’’ as that term is defined in § 52-572m (a), because the essence of
the relationship between D and B Co. was for the furnishing of medical
services rather than the sale of goods; moreover, although B Co.’s hospi-
tal website contained information regarding different surgical proce-
dures for incontinence, the only mention of the A Co. sling appeared
on the website of the medical practice to which D’s obstetrician and
gynecologist belonged, there was no evidence that B Co. had any control
over the content of that website, and D admitted to receiving no market-
ing information regarding the A Co. sling from B Co., such that any
mention of the A Co. sling could not be attributed to advertising by B
Co.; furthermore, the facts that B Co. stocked the A Co. sling, billed
D’s health insurance carrier for it at a significant upcharge, and may
potentially have profited from the transaction did not, by themselves,
render B Co. a product seller, especially given that services provided
by hospitals are often carried out in emergency situations, which require
that medical supplies be stocked and ready for use; in addition, the
majority of the amount that B Co. had billed D’s health insurance carrier
was for recovery and operating room services, further indicating that
the essence of the transaction was for the provision of services.
2. The plaintiffs, who did not dispute that they commenced their action
more than five years after D’s surgery took place, could not prevail on
their claim that the trial court incorrectly determined that the three year
statutes of limitations and repose period were not tolled by either the
continuing course of conduct or the fraudulent concealment doctrine:
a. The statute of limitations applicable to the plaintiffs’ CUTPA claim and
statute of limitations and period of repose applicable to the plaintiffs’
common-law claims were not tolled by the continuing course of conduct
doctrine: the plaintiffs failed to establish a genuine issue of material
fact with respect to whether B Co. ever committed an initial wrong by
marketing the A Co. sling, which was a necessary factual predicate for
their claim that the continuing course of conduct doctrine tolled the
statute of limitations applicable to the CUTPA claim, as the only mention
of the sling in any marketing material appeared on the website of the
practice to which D’s obstetrician and gynecologist belonged, over which
B Co. had no control, and D admitted that she never received any such
marketing information from B Co.; moreover, because it is solely the
responsibility of the treating physician to inform a patient of the risks
and benefits of a proposed medical procedure, B Co. did not, as the
plaintiffs claimed, have an independent or fiduciary duty to inform D
of the risks associated with the sling procedure that continued even
after the procedure had been completed.
b. The statute of limitations and period of repose applicable to the plaintiffs’
common-law claims were not tolled by the fraudulent concealment doc-
trine; the plaintiffs failed to establish a genuine issue of material fact
with respect to whether B Co. intentionally concealed any information
regarding the risks of the sling procedure generally or the A Co. sling
specifically, as B Co.’s website identified risks associated with that
procedure, and the record contained no evidence that any alleged con-
cealment by B Co. was for the specific purpose of delaying the plaintiffs’
filing of their complaint.
Argued December 10, 2020—officially released August 9, 2021*
Procedural History
Action to recover damages for, inter alia, a violation
of the Connecticut Product Liability Act, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Waterbury and transferred to the Complex Liti-
gation Docket, where the plaintiffs withdrew the
complaint as to the named defendant; thereafter, the
court, Bellis, J., granted the motion for summary judg-
ment filed by the defendant Bristol Hospital, Inc., and
rendered judgment thereon, from which the plaintiffs
appealed. Affirmed.
Jacqueline E. Fusco, with whom was Brenden P.
Leydon, for the appellants (plaintiffs).
Michael G. Rigg, for the appellee (defendant Bristol
Hospital, Inc.).
Opinion
ROBINSON, C. J. The principal issue in this appeal
is whether a hospital that purchases, stocks, and sup-
plies a medical device, and then bills a patient for its
use during surgery, is a ‘‘product seller,’’ as defined by
General Statutes § 52-572m (a),1 for purposes of impos-
ing strict liability under the Connecticut Product Liabil-
ity Act (product liability act). See General Statutes § 52-
572m et seq. The named plaintiff, Debra Normandy,2
appeals3 from the trial court’s granting of the motion for
summary judgment filed by the defendant Bristol Hospi-
tal, Inc.,4 with respect to her complaint alleging injuries
arising from the defendant’s violations of, inter alia,
the product liability act, the Connecticut Unfair Trade
Practices Act (CUTPA), General Statutes § 42-110a et
seq., and the common law. On appeal, the plaintiff con-
tends that the trial court incorrectly concluded that (1)
the defendant was not a product seller for purposes of
imposing strict liability under the product liability act,
and (2) her CUTPA and common-law claims were time
barred because the statutes of limitations applicable to
those claims were not tolled. We conclude that the
defendant, as a hospital, is not a product seller for
purposes of imposing strict liability pursuant to the
product liability act under the circumstances of this
case, in which the defendant provided general informa-
tion regarding various medical procedures on its web-
site and did not significantly participate in placing the
medical device at issue into the stream of commerce.
We further conclude that the statutes of limitations
governing the plaintiff’s CUTPA and common-law
claims were not tolled. Accordingly, we affirm the judg-
ment of the trial court.
The record, viewed in the light most favorable to
the plaintiff, reveals the following facts and procedural
history. In 2009, Amy S. Breakstone, an obstetrician and
gynecologist who is a member of the CCOG Women’s
Health Group (practice group), diagnosed the plaintiff
with stress urinary incontinence. To treat the plaintiff’s
condition, Breakstone recommended the surgical implan-
tation of the Monarc Subfascial Hammock pelvic mesh
sling (Monarc mesh sling), which was manufactured by
American Medical Systems, Inc. See footnote 4 of this
opinion. On December 2, 2009, Breakstone performed
that surgery on the plaintiff at the defendant hospital.
Breakstone is not an employee of the defendant, but
she has privileges to practice there.
The defendant maintains a website on which it pro-
vides information about its affiliated physicians, includ-
ing Breakstone, as well as various procedures that are
available to patients. The practice group of which
Breakstone is a member maintains its own webpage
that provides information about incontinence therapies,
including specific treatment devices. The practice
group’s webpage provides a hyperlink titled ‘‘Monarc,’’
which is the brand of pelvic sling implanted in the
plaintiff. The Monarc mesh sling implanted in the plain-
tiff was stocked by the defendant at the request of some
its physicians; the defendant paid American Medical
Systems, Inc., $900 for the Monarc mesh sling and then
billed the plaintiff’s health insurance carrier $4230 for it.
Although physicians have utilized pelvic mesh prod-
ucts containing a ‘‘monofilament polypropylene mesh,’’
like the Monarc mesh sling, to treat stress incontinence
surgically, ‘‘there is scientific evidence that suggests
that this material is biologically incompatible with
human tissue and should not be used in the pelvic
region.’’ On January 24, 2014, the plaintiff was diag-
nosed with a ‘‘mesh exposure’’ that caused her discom-
fort and ultimately required surgical removal of the
Monarc mesh sling.
The plaintiff brought this action on March 9, 2015,
via a two count complaint, alleging, inter alia, violations
of the product liability act and CUTPA. Subsequently,
the plaintiff filed a request for leave to amend the com-
plaint, seeking to add five new counts against the defen-
dant, alleging common-law claims for negligence, breach
of express warranty, breach of implied warranty, reck-
lessness, and civil conspiracy in the third through sev-
enth counts, respectively.5 The defendant objected to
the plaintiff’s request to amend the complaint and
moved for summary judgment, arguing, inter alia, that
the defendant is not a product seller under the product
liability act and that the plaintiff’s CUTPA and common-
law claims were time barred.
The trial court granted the plaintiff’s request to amend
the complaint, treating it as the operative complaint in
considering the defendant’s motion for summary judg-
ment. In granting the defendant’s motion for summary
judgment, the trial court concluded that there was no
genuine issue of material fact that the defendant was
not a product seller as a matter of law, deeming it ‘‘clear
from the evidence submitted that the essence of the
relationship between [the plaintiff] and the defendant
. . . was the provision of medical services, by way of
surgery to implant the [Monarc mesh sling].’’ The trial
court further concluded that ‘‘[t]he defendant did not
place the [Monarc mesh sling] into the stream of com-
merce but, rather, was a user or consumer of [the sling],
as it is of all equipment and products used to provide
medical services and [to] treat patients.’’ (Footnote
omitted.) In so concluding, the court determined that
the majority of Connecticut trial courts, sister state
courts, and leading treatises agree that hospitals are
not product sellers for purposes of strict product liabil-
ity. The court also granted the defendant’s motion for
summary judgment as to the remaining CUTPA and
common-law claims, concluding that they were time
barred. In doing so, the court concluded that neither
the continuing course of conduct nor the fraudulent
concealment doctrine tolled the applicable statutes of
limitations. Accordingly, the court rendered judgment
for the defendant on all counts of the amended com-
plaint. The court denied the plaintiff’s subsequent
motion for reconsideration. This appeal followed.
On appeal, the plaintiff contends, inter alia, that the
trial court incorrectly concluded that (1) the defendant
was not a product seller as a matter of law, and (2) the
continuing course of conduct and fraudulent conceal-
ment doctrines did not toll the applicable statutes of
limitations. We address each claim in turn.
Before turning to the plaintiff’s specific claims, we
note the well settled standard of review governing sum-
mary judgment motions. ‘‘Practice Book [§ 17-49] pro-
vides that summary judgment shall be rendered
forthwith if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . The party seeking
summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . . [T]he scope of our review
of the trial court’s decision to grant the plaintiff’s motion
for summary judgment is plenary.’’ (Internal quotation
marks omitted.) Rutter v. Janis, 334 Conn. 722, 729,
224 A.3d 525 (2020).
I
We begin with the plaintiff’s claim that the trial court
incorrectly concluded that there was no genuine issue
of material fact as to whether the defendant is a product
seller for purposes of the product liability act. The plain-
tiff argues that the defendant ‘‘was engaged in the busi-
ness of selling mesh slings and that the primary, if not
sole, purpose of its relationship with [the plaintiff] was
providing the sling to be implanted by . . . Breakstone.’’
The plaintiff asserts that evidence of the defendant’s
regularly stocking pelvic mesh products, marketing the
Monarc mesh sling on its website, and selling that device
at a markup created a genuine issue of material fact as
to whether the defendant was engaged in the business
of selling the Monarc mesh sling. In response, the defen-
dant argues that the trial court correctly concluded that
it is not a product seller under the product liability act
because it was ‘‘not engaged in the business’’ of selling
the Monarc mesh sling and because the essence of the
relationship between the defendant and the plaintiff
‘‘was that of medical service provider and patient.’’ We
agree with the defendant and conclude that there is no
genuine issue of material fact as to whether it was a
product seller of the Monarc mesh sling.
In 1965, Connecticut adopted, as a matter of state
common law, § 402A of the Restatement (Second) of
Torts. Garthwait v. Burgio, 153 Conn. 284, 289, 216
A.2d 189 (1965); see 2 Restatement (Second), Torts
§ 402A, p. 347 (1965). ‘‘Section 402A recognized an
action for strict product liability in tort without the
requirement of privity between the seller and the con-
sumer or proof of manufacturer fault.’’ Izzarelli v. R.J.
Reynolds Tobacco Co., 321 Conn. 172, 184, 136 A.3d 1232(2016). ‘‘In 1979, our legislature adopted our product
liability act. . . . That liability act required all com-
mon-law theories of product liability to be brought as
a statutory cause of action.’’ (Citation omitted.) Id., 187.
Thus, ‘‘all claims or actions brought for personal injury
. . . caused by the . . . marketing . . . of any prod-
uct’’ are brought under the product liability act. General
Statutes § 52-572m (b). The product liability act defines
‘‘product seller’’ in relevant part as ‘‘any person or
entity, including a manufacturer, wholesaler, distribu-
tor or retailer who is engaged in the business of selling
such products whether the sale is for resale or for use
or consumption. . . .’’ General Statutes § 52-572m (a).
Plaintiffs ‘‘must establish and prove, inter alia, that . . .
the defendant was engaged in the business of selling
the product . . . [and] the defect existed at the time
of the sale . . . .’’ (Emphasis in original, internal quota-
tion marks omitted.) Zichichi v. Middlesex Memorial
Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987). ‘‘Once
a particular transaction is labeled a ‘service,’ as opposed
to a ‘sale’ of a ‘product,’ it is outside the purview of
[the] product liability [act].’’ Id.Connecticut courts applying the product liability act
have considered ‘‘a party . . . a product seller [when]
a sale of a product is a principal part of the transaction
and [when] the essence of the relationship between the
buyer and seller is not the furnishing of professional
skill or services.’’ (Emphasis in original; internal quota-
tion marks omitted.) Truglio v. Hayes Construction
Co., 66 Conn. App. 681, 685, 785 A.2d 1153 (2001); see
Paul v. McPhee Electrical Contractors, 46 Conn. App.
18, 23, 698 A.2d 354 (1997) (electrician was not product
seller because he merely installed light fixture and was
not responsible for placing it in stream of commerce).
Thus, in determining whether a hospital is a product
seller of a surgical device under the product liability
act, which is a question of first impression for this court,
we must determine whether, under the circumstances
of the case, that hospital is engaged in the business of
selling a product.
Although ‘‘[n]o unifying test has been devised to
determine whether strict liability applies in any given
[sales service] combination,’’ the reporters’ notes to the
Restatement (Third) of Torts observe that hospitals
provide both services and products. Restatement
(Third), Torts, Products Liability § 20, reporters’ note
to comment (d), p. 289 (1998).6 However, ‘‘[m]ost juris-
dictions hold that hospitals and doctors provide a ser-
vice—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.’’ Id.
A review of sister state decisions demonstrates that
hospitals are predominantly held to be service providers
rather than product sellers for purposes of strict liability
because the essence of the transaction between a hospi-
tal and a patient is for medical services rather than the
sale of goods.7 See, e.g., Hector v. Cedars-Sinai Medical
Center, 180 Cal. App. 3d 493, 507–508, 225 Cal. Rptr.
595 (1986) (hospital was not product seller of pace-
maker but provider of medical services); Ayyash v.
Henry Ford Health Systems, 210 Mich. App. 142, 144–
47, 533 N.W.2d 353 (1995) (hospital provided service for
implant procedure and was not product seller), appeal
denied, 450 Mich. 992, 549 N.W.2d 561 (1996); Royer v.
Catholic Medical Center, 144 N.H. 330, 335, 741 A.2d 74(1999) (hospital was not engaged in business of selling
prosthetic devices as matter of law); Johnson v. Moun-
tainside Hospital, 239 N.J. Super. 312, 321, 571 A.2d 318(App. Div.) (hospital was not strictly liable for defective
respirator leased to patient), cert. denied, 122 N.J. 188,
584 A.2d 248 (1990); Perlmutter v. Beth David Hospital,
308 N.Y. 100, 104, 123 N.E.2d 792 (1954) (it was apparent
that essence of relationship between hospital and
patient was for services because ‘‘the patient bargains
for, and the hospital agrees to make available, the
human skill and physical material of medical science to
the end that the patient’s heath be restored’’); Cafazzo
v. Central Medical Health Services, Inc., 542 Pa. 526,
533–34, 668 A.2d 521 (1995) (hospital was not seller
of defective prosthetic device that was incidental to
provision of services as matter of law); see also Farrell
v. Johnson & Johnson, 335 Conn. 398, 420–21, 238 A.3d
698 (2020) (upholding directed verdict on innocent mis-
representation claim because ‘‘[the plaintiff’s] purchase
of [the pelvic] mesh was secondary to the main purpose
of the transaction, namely, to seek surgical assistance
for her pelvic organ prolapse’’ (emphasis added)); Zbras
v. St. Vincent’s Medical Center, 91 Conn. App. 289, 294,
880 A.2d 999 (upholding grant of summary judgment
because hospital was not product seller of device
implanted during surgery when essence of transaction
was for services, not goods), cert. denied, 276 Conn.
910, 886 A.2d 424 (2005).
We find particularly illustrative a decision of the
Texas Court of Appeals, Easterly v. HSP of Texas, Inc.,
772 S.W.2d 211, 212–13 (Tex. App. 1989), which con-
cluded that the defendant hospital was not the product
seller of an epidural kit. The Texas court considered
the distinction between a product seller and service
provider and inquired whether ‘‘the hospital introduced
into the stream of commerce a defective product unre-
lated to the essential professional relationship’’ so as
to render the hospital a product seller or, instead,
whether the epidural kit ‘‘was intimately and insepara-
bly connected to the professional service of providing
[the plaintiff] with anesthesia . . . .’’ Id., 213. The court
concluded that the hospital was ‘‘not in the business
of selling epidural kits separate from the medical rela-
tionship between doctor and patient involving the fur-
nishing of medical services.’’ Id. Therefore, the court
held that ‘‘[t]he ‘sale’ of the epidural kit was integrally
related to the medical procedure—the kit was not a
separate good sold in a commercial transaction.’’ Id.In the present case, the plaintiff claims there is a
genuine issue of material fact as to whether the defen-
dant was engaged in the business of selling the Monarc
mesh sling.8 The plaintiff argues that, because the defen-
dant stocked the Monarc mesh sling, advertised it on
the hospital website, and billed her insurance for it at
a significant upcharge, the essence of the relationship
between the defendant and the plaintiff was the sale
of the product, rendering the defendant a product seller
under the product liability act.9
We begin our analysis of the record with the plaintiff’s
argument that the defendant acted as a product seller
when it advertised and marketed medical devices, such
as the Monarc mesh sling, on its hospital website and
when it advertised Breakstone as an associated physi-
cian. This argument is not supported by the record. The
defendant’s website provides information regarding
‘‘different types of surgical procedures for inconti-
nence,’’ as well as information regarding its physicians,
including Breakstone. Nowhere on the defendant’s web-
site does it describe or mention the Monarc mesh sling.
The content on the defendant’s website is purely educa-
tional or informational in nature, as it describes in gen-
eral terms the options available to patients to treat
incontinence, along with the risks that may accompany
such procedures. In fact, the only mention of the
Monarc mesh sling on any website in the record is on
that of the practice group. There is no evidence that
the defendant has any control over the content of the
practice group’s webpage, meaning that any mention
of the Monarc mesh sling can hardly be said to be
advertising by the defendant. Indeed, the plaintiff her-
self testified at her deposition that she did not receive
any literature or marketing information regarding the
Monarc mesh sling from the defendant.10 Thus, if the
defendant’s website constitutes advertising at all, it is
advertising the hospital as a service provider.
The plaintiff further argues that there is a genuine
issue of material fact as to whether the defendant adver-
tises the Monarc mesh sling because the deposition
testimony of Korrine A. Roth, the defendant’s Systems
Director of Quality Improvement, seemingly contra-
dicted her affidavit, which stated that the defendant
‘‘does not market, advertise, or solicit the sale of medi-
cal or surgical products.’’ We disagree. Instead, we
agree with the defendant that Roth’s deposition testi-
mony is wholly consistent with the statement in her
affidavit that the defendant advertises its services and
not particular products. Roth testified that, ‘‘[i]n gen-
eral, [the defendant’s] marketing or advertising [was
for] promoting our service for the hospital, promoting
our services. . . . So we market and advertise what
we do.’’ Roth unambiguously replied in the negative
when asked: ‘‘And you believe that you don’t market
or advertise medical or surgical products?’’11
The plaintiff next argues that the essence of her rela-
tionship with the defendant was for the procurement
of the Monarc mesh sling because the defendant
obtained and stocked the mesh sling, any services pro-
vided were dependent on its sale, and the defendant
billed the plaintiff at a significant upcharge. We dis-
agree. It is undisputed that the defendant paid $900
for the Monarc mesh sling and subsequently billed the
plaintiff’s health insurance carrier $4230. The mere fact
that the defendant billed for the Monarc mesh sling
does not conclusively establish that its sale was the
main purpose of the plaintiff’s relationship with the
defendant. See In re Yasmin & Yaz (Drospirenone)
Marketing, Sales Practices & Products Liability Liti-
gation, 692 F. Supp. 2d 1012, 1023 (S.D. Ill. 2010) (‘‘the
sale of pharmaceuticals is just one aspect of the transac-
tion between patient and pharmacist’’), aff’d sub nom.
Walton v. Bayer Corp., 643 F.3d 994 (7th Cir. 2011);
Brandt v. Boston Scientific Corp., 204 Ill. 2d 640, 648,
792 N.E.2d 296 (2003) (‘‘it is not reasonable to infer
that [the plaintiff] simply went to the hospital, bought
the sling, and left’’). Furthermore, the fact that the
defendant billed the plaintiff far more than it paid for
the Monarc mesh sling, and potentially may have prof-
ited from providing the product, does not by itself ren-
der the defendant a product seller under the product
liability act.12 See Hector v. Cedars-Sinai Medical Cen-
ter, supra, 180 Cal. App. 3d 505 (‘‘[t]he 85 percent sur-
charge in and of itself does not place the hospital in
the business of selling pacemakers’’). Indeed, given the
nature of the services provided by hospitals, often in
emergency situations, that a hospital keeps medical
supplies on its shelves ready for use does not, without
more, render it a product seller.
Finally, we consider other indicia that the essence
of the transaction in the present case was for services
rather than the sale of a product. First, we observe that
the defendant did not bill the plaintiff’s health insurance
carrier for the cost of the Monarc mesh sling alone.
Instead, the defendant billed for the total amount asso-
ciated with the surgical procedure, including $4230 for
the mesh sling and more than $10,000 for various sup-
plies and recovery and operating room services.13
Although not dispositive, the fact that the majority of
the bill was for services, rather than products, strongly
indicates that the essence of the transaction was for the
provision of services. See Brandt v. Boston Scientific
Corp., supra, 204 Ill. 2d 652 (noting that, because ‘‘[o]nly
a small fraction of the total charge was for the sling,’’
predominant purpose of transaction was for services,
not goods). Second, the plaintiff testified at her deposi-
tion that the reason she went to the defendant for the
surgery, as opposed to another hospital, was because
Breakstone, as her physician, scheduled the surgery
there.14
Because the defendant did not actively advertise the
Monarc mesh sling for sale to patients, and because
the particular transaction between the plaintiff and the
defendant was primarily for services rather than the
sale of the medical product, we conclude that the trial
court correctly determined that the defendant was not
a product seller as a matter of law. Accordingly, the
trial court properly granted the defendant’s motion for
summary judgment on the product liability count.
II
We turn now to the plaintiff’s claim that the trial
court incorrectly concluded that the plaintiff’s CUTPA
and common-law claims were time barred because the
statutes of limitations applicable to those claims were
not tolled under the doctrines of continuing course of
conduct or fraudulent concealment. ‘‘[I]n the context
of a motion for summary judgment based on a statute
of limitations special defense, a defendant typically
meets its initial burden of showing the absence of a
genuine issue of material fact by demonstrating that
the action had commenced outside of the statutory
limitation period. . . . When the plaintiff asserts that
the [limitation] period has been tolled by an equitable
exception to the statute of limitations, the burden nor-
mally shifts to the plaintiff to establish a disputed issue
of material fact in avoidance of the statute.’’ (Internal
quotation marks omitted.) Flannery v. Singer Asset
Finance Co., LLC, 312 Conn. 286, 310, 94 A.3d 553(2014).
It is undisputed that, because the plaintiff’s surgery
took place on December 1, 2009, and she did not com-
mence this action until February 19, 2015, her claims
are time barred by the applicable statutes of limitations
and repose period in the absence of tolling.15 The bur-
den, therefore, shifts to the plaintiff to establish that
there is a genuine issue of material fact as to whether
the statutes of limitations and repose period were tolled
under either the continuing course of conduct or fraudu-
lent concealment doctrine. See id.A
The plaintiff first argues that the statute of limitations
for the CUTPA claim and statute of limitations and
repose period for the common-law claims are subject to
tolling under the continuing course of conduct doctrine
because ‘‘the defendant continued to market and pro-
mote mesh slings’’ after the plaintiff’s surgery, while
concealing the risk of sling implant procedures until at
least 2016.16 The plaintiff further argues that the continu-
ing course of conduct doctrine tolls the statute of limita-
tions and repose period applicable to her common-law
claims because the defendant owed her a continuing
duty to inform her of the risks associated with a mesh
sling implant procedure, even after the procedure was
completed, as well as a fiduciary duty to do so. In
response, the defendant argues that the trial court cor-
rectly concluded that the statute of limitations for the
CUTPA claim and statute of limitations and period of
repose for the common-law claims were not tolled. The
defendant asserts that the plaintiff failed to present
evidence that the defendant advertised or marketed the
Monarc mesh sling that was implanted in the plaintiff.
The defendant also argues that hospitals do not have
a general or fiduciary duty to inform a patient of the
risks associated with surgical procedures. We agree
with the defendant and conclude that, under the circum-
stances of this case, the statute of limitations for the
CUTPA claim and statute of limitations and period of
repose for the common-law claims were not tolled by
the continuing course of conduct doctrine.
On a motion for summary judgment, when deciding
whether a statute of limitations or repose is tolled by
the continuing of conduct doctrine, the court ‘‘must
determine whether there is a genuine issue of material
fact with respect to whether the defendant: (1) commit-
ted an initial wrong upon the plaintiff; (2) owed a contin-
uing duty to the plaintiff that was related to the alleged
original wrong; and (3) continually breached that duty.’’
(Internal quotation marks omitted.) Martinelli v. Fusi,
290 Conn. 347, 357, 963 A.2d 640 (2009).
Having reviewed the record, we conclude that the
plaintiff has failed to establish a genuine issue of mate-
rial fact with respect to whether the defendant ever
advertised the Monarc mesh sling on its hospital web-
site. Although the practice group’s website provided a
single mention and hyperlink to the Monarc mesh sling,
the plaintiff has not demonstrated that the defendant
had any control over the contents of that webpage.17
Moreover, even if we were to assume that the generic
mentions of mesh slings on the defendant’s website
constituted advertising, the record clearly indicates that
the plaintiff herself never saw or received any such
marketing by the defendant. See footnote 10 of this
opinion. Because there is no evidence that the defen-
dant committed the initial wrong of marketing the prod-
uct 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 plaintiff’s
CUTPA claim.18 See, e.g., Soto v. Bushmaster Firearms
International, LLC, 331 Conn. 53, 94, 202 A.3d 262(‘‘standing to bring a CUTPA claim will lie only when
the purportedly unfair trade practice is alleged to have
directly and proximately caused the plaintiff’s injur-
ies’’), cert. denied sub nom. Remington Arms Co., LLC
v. Soto, U.S. , 140 S. Ct. 513, 205 L. Ed. 2d
317 (2019).
We further conclude that the defendant did not have
an independent duty to inform the plaintiff of the risks
associated with a mesh sling implant procedure, even
after the procedure had been completed, as well as
a fiduciary duty. As the defendant argues, a hospital
generally does not have an independent responsibility
to inform a patient of risks associated with a medical
procedure. See Sherwood v. Danbury Hospital, 278
Conn. 163, 196, 896 A.2d 777 (2006). ‘‘[I]t is solely the
responsibility of the nonemployee treating physician,
and not the duty of the hospital, to inform the patient of
the risks and benefits of, and alternatives to, a proposed
medical procedure . . . .’’ Id., 185–86. Therefore,
because the defendant hospital had no independent
duty to inform the plaintiff of the risks associated with
the mesh sling implant procedure, there is no genuine
issue of material fact as to whether the continuing
course of conduct doctrine tolls the statute of limita-
tions and period of repose applicable to the plaintiff’s
common-law claims.
B
Finally, the plaintiff argues that the statute of limita-
tions and period of repose applicable to her common-
law claims are tolled under the doctrine of fraudulent
concealment, as codified in General Statutes § 52-595.19
The plaintiff seems to claim that the defendant fraudu-
lently concealed the risks associated with the mesh
sling implant procedure because the defendant had
actual knowledge of the dangers and intentionally con-
cealed that information from the plaintiff. In response,
the defendant argues that it warned of the risks associ-
ated with mesh sling implantation surgery on its website
and that the plaintiff failed to submit evidence to dem-
onstrate any concealment on the part of the defendant.
‘‘[T]o toll a statute of limitations by way of [the]
fraudulent concealment statute [§ 52-595], a plaintiff
must present evidence that a defendant: (1) had actual
awareness, rather than imputed knowledge, of the facts
necessary to establish the [plaintiff’s] cause of action;
(2) intentionally concealed these facts from the [plain-
tiff]; and (3) concealed the facts for the purpose of
obtaining delay on the [plaintiff’s] part in filing a com-
plaint on their cause of action.’’ (Internal quotation
marks omitted.) Iacurci v. Sax, 313 Conn. 786, 799–800,
99 A.3d 1145 (2014).
Having reviewed the record, we conclude that the
plaintiff has failed to establish a genuine issue of mate-
rial fact with respect to whether the defendant con-
cealed any information regarding the risks of the mesh
sling implant procedure generally or the Monarc mesh
sling specifically. First, the defendant’s website indi-
cates there are risks associated with the procedure,
stating: ‘‘Postoperative urinary problems, such as void-
ing problems, urinary tract infections, and urge inconti-
nence may occur. The [United States Food and Drug
Administration] has reported complications associated
with some synthetic mesh slings.’’ Second, the record
contains no direct or circumstantial evidence that any
alleged concealment by the defendant was for the spe-
cific purpose of delaying the plaintiff’s filing of the
complaint. We conclude, therefore, that the trial court
correctly determined that the plaintiff’s claims are time
barred, as the statutes of limitations and period of
repose were not tolled by the doctrines of fraudulent
concealment or continuing course of conduct. Accord-
ingly, the trial court properly granted the defendant’s
motion for summary judgment with respect to the plain-
tiff’s CUTPA and common-law claims.
The judgment is affirmed.
In this opinion the other justices concurred.
* August 9, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes § 52-572m (a) provides: ‘‘ ‘Product seller’ means any
person or entity, including a manufacturer, wholesaler, distributor or retailer
who is engaged in the business of selling such products whether the sale
is for resale or for use or consumption. The term ‘product seller’ also includes
lessors or bailors of products who are engaged in the business of leasing
or bailment of products.’’
2
Mark Normandy, who is Debra Normandy’s husband, is also a plaintiff
in this action. The sole count of the operative complaint pertaining to Mark
Normandy is the product liability count, which alleges that he suffered
emotional distress and a loss of consortium, a claim that is derivative of
Debra Normandy’s statutory claim. For the sake of convenience, all refer-
ences to the plaintiff in this opinion are to Debra Normandy.
3
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
4
We note that the plaintiff’s original, two count complaint was against
both Bristol Hospital, Inc., and the named defendant, American Medical
Systems, Inc. The plaintiff subsequently withdrew her complaint as to the
named defendant on July 10, 2015. Accordingly, all references herein to the
defendant are to Bristol Hospital, Inc.
5
The complaint also alleged a loss of consortium claim on behalf of her
husband. See footnote 2 of this opinion.
6
The plaintiff argues that the trial court improperly relied on § 20 of the
Restatement (Third) of Torts because the ‘‘[a]doption of [the Restatement
(Third) of Torts] for product liability claims has been rejected in Connecti-
cut.’’ The plaintiff relies on Bifolck v. Philip Morris, Inc., 324 Conn. 402, 408,
152 A.3d 1183 (2016), in which this court declined to adopt the Restatement
(Third) or to make any substantive changes to our product liability tests,
instead favoring ‘‘modest refinements’’ to the approach under the
Restatement (Second). This court, however, has deemed the Restatement
(Third) instructive and persuasive in other contexts. See Ruiz v. Victory
Properties, LLC, 315 Conn. 320, 335–36, 107 A.3d 381 (2015) (referencing
Restatement (Third) in recognizing range of reasonable foreseeability);
White v. Mazda Motor of America, Inc., 313 Conn. 610, 624–25, 99 A.3d 1079(2014) (referring to Restatement (Third) when defining essential elements
of product malfunction claim as example of developing theory); see also
Hayes v. Caspers, Ltd., 90 Conn. App. 781, 792–93, 881 A.2d 428 (trial
court’s jury instruction on proximate cause ‘‘functionally mirror[ed]’’ test
in Restatement (Third), which ‘‘provide[d] yet another basis for sustaining
the validity of the court’s instructions’’), cert. denied, 276 Conn. 915, 888
A.2d 84 (2005). In contrast to Bifolck, the issue presented in the present
case does not require us to undertake a significant shift from the analysis
of the Restatement (Second). Accordingly, we deem the Restatement
(Third) instructive.
7
In a situation that is distinguishable from the present case, we note that
hospitals have been deemed product sellers when the product at issue is
not ‘‘integrally associated with the medical treatment.’’ Restatement (Third),
supra, § 20, reporter’s note to comment (d), p. 290; see Johnson v. Sears,
Roebuck & Co., 355 F. Supp. 1065, 1067 (E.D. Wis. 1973) (hospital may be
strictly liable for ‘‘mechanical and administrative services’’); Thomas v. St.
Joseph Hospital, 618 S.W.2d 791, 796–97 (Tex. Civ. App. 1981, writ ref’d
n.r.e.) (hospital may be strictly liable for patient’s gown that caught on fire).
8
The plaintiff relies on the observation of the United States District Court
for the District of Connecticut that there is no ‘‘broad categorical rule’’ that
hospitals cannot be product sellers of medical devices they sell to patients.
Mihok v. Medtronic, Inc., 119 F. Supp. 3d 22, 37 (D. Conn. 2015). The
defendant, however, does not argue that hospitals can never be product
sellers under the product liability act. It simply argues that, on the facts of
this case, it is not a product seller because of its relationship with the
plaintiff and the nature of the transaction centering on surgical services
rather than the sale of the product itself.
9
The plaintiff also argues that the trial court improperly failed to find
that ‘‘a fiduciary duty existed such that the defendant was required to inform
the plaintiff of the dangers of the [Monarc] mesh sling about which it had
actual knowledge and . . . the opportunity to mitigate.’’ This court, how-
ever, has already concluded that the nonemployee treating physician, rather
than the hospital, owes a fiduciary duty to a patient to warn them of the
risks of a procedure. See Sherwood v. Danbury Hospital, 278 Conn. 163,
185–86, 196, 896 A.2d 777 (2006). Thus, the defendant did not owe an indepen-
dent fiduciary duty to the plaintiff to warn her of any risks associated with
her surgical procedure.
10
At her deposition, the plaintiff was asked: ‘‘Have you ever seen any
advertising from [the defendant]?’’ The plaintiff replied, ‘‘I have.’’ She then
responded in the negative when asked whether any of the defendant’s adver-
tisements ‘‘mention[ed] the sling that [she] had received during [her] surgery
. . . .’’ Finally, she was asked: ‘‘Did you ever see any advertisements at all
for the sling that you received during your surgery, from anybody?’’ The
plaintiff responded: ‘‘Just the brochure that . . . Breakstone had given me.
. . . There wasn’t much information though. I mean, they were just promot-
ing their product.’’
11
The plaintiff also argues that, because the United States Food and Drug
Administration (FDA) defines both ‘‘device user facility’’ and ‘‘distributor’’
to include hospitals, the defendant should be considered a product seller
in the context of strict product liability. 21 C.F.R. § 803.3 (d) and (e) (2020).
The plaintiff fails to provide any authority to support her argument that
hospitals are considered ‘‘distributors’’ by the FDA and that such a conclu-
sion would be persuasive in the product liability context. The plain language
of the federal regulations includes hospital in the definition of ‘‘device user
facility.’’ See id., § 803.3 (d). ‘‘Distributor’’ is defined in relevant part as
‘‘any person (other than the manufacturer or importer) who furthers the
marketing of a device from the original place of manufacture to the person
who makes final delivery or sale to the ultimate user, but who does not
repackage or otherwise change the container, wrapper, or labeling of the
device or device package. . . .’’ (Emphasis added.) Id., § 803.3 (e). Because
we conclude that there is no genuine issue of material fact that the defendant
did not market the Monarc mesh sling to the plaintiff, the defendant is not
a ‘‘distributor’’ under the plain language of the federal regulations.
12
The defendant points out that the record does not indicate how much
ultimately was paid by the plaintiff’s health insurance carrier.
13
The record indicates that the defendant billed $1757.93 for other sup-
plies, such as pharmaceuticals and surgical supplies, $2110 for recovery
room services, $5890.50 for operating room services, and $335 for various
laboratory testing and treatment. As we noted, there is no evidence in the
record of the amount the plaintiff’s health insurance carrier actually paid
to the defendant. See footnote 12 of this opinion.
14
When asked at her deposition why she went to ‘‘Bristol Hospital on
December 1, 2009,’’ the plaintiff stated, ‘‘Breakstone scheduled it. . . . The
sling surgery.’’
15
The plaintiff’s various claims are governed by three year statutes of
limitations and a three year period of repose. See General Statutes § 42-
110g (f) (‘‘[a]n action under this section may not be brought more than three
years after the occurrence of a violation of this chapter’’); General Statutes
§ 52-577 (‘‘[n]o action founded upon a tort shall be brought but within three
years from the date of the act or omission complained of’’); General Statutes
§ 52-584 (‘‘[n]o action to recover damages for injury to the person, or to
real or personal property . . . shall be brought but within two years from
the date when the injury is first sustained or discovered or in the exercise
of reasonable care should have been discovered, and except that no such
action may be brought more than three years from the date of the act or
omission complained of’’).
‘‘As this court previously has observed, [w]hile statutes of limitation[s]
are sometimes called statutes of repose, the former bars [a] right of action
unless it is filed within a specified period of time after [an] injury occurs,
[whereas] statute[s] of repose [terminate] any right of action after a specific
time has elapsed, regardless of whether there has as yet been an injury.’’
(Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contrac-
tors, Inc., 307 Conn. 412, 416 n.2, 54 A.3d 1005 (2012); see also Baxter v.
Sturm, Ruger & Co., 230 Conn. 335, 341, 644 A.2d 1297 (1994).
16
We note that the period of repose under General Statues § 52-584 may
be tolled by the doctrines of continuing course of conduct and fraudulent
concealment. See Neuhaus v. DeCholnoky, 280 Conn. 190, 201, 905 A.2d
1135 (2006) (continuing course of conduct doctrine may toll period of repose
in § 52-584); Connell v. Colwell, 214 Conn. 242, 246 n.4, 571 A.2d 116 (1990)
(fraudulent concealment doctrine may toll period of repose under § 52-584).
17
The plaintiff relies on Soto v. Bushmaster Firearms International, LLC,
331 Conn. 53, 94, 202 A.3d 262, cert. denied sub nom. Remington Arms Co.,
LLC v. Soto, U.S. , 140 S. Ct. 513, 205 L. Ed. 2d 317 (2019), to support
her argument that her claim under CUTPA is not time barred. This case is
distinguishable from Soto, however, because there is no evidence that the
defendant itself marketed the Monarc mesh sling.
18
The parties dispute whether the CUTPA statute of limitations may be
tolled by the continuing course of conduct doctrine. The plaintiff argues
that the doctrine does apply, citing a decision of the United States Bank-
ruptcy Court for the District of Connecticut. See In re Kellogg, 166 B.R.
504, 507 (Bankr. D. Conn. 1994). In response, the defendant cites to our
decision in Flannery v. Singer Asset Finance Co., LLC, supra, 312 Conn.
286, to support its argument that the continuing course of conduct doctrine
does not toll the statute of limitations under CUTPA. In Flannery, we
determined that, ‘‘[b]ecause the plaintiff’s tolling claim is entirely nonviable,
we need not address his second claim regarding the applicability of tolling
to save an untimely CUTPA action.’’ Id., 298. Here, we again do not need
to reach the issue of whether the CUTPA limitation period may be tolled
by the continuing course of conduct doctrine because we conclude that
there is no factual predicate for the application of that doctrine.
19
General Statutes § 52-595 provides: ‘‘If any person, liable to an action
by another, fraudulently conceals from him the existence of the cause of
such action, such cause of action shall be deemed to accrue against such
person so liable therefor at the time when the person entitled to sue thereon
first discovers its existence.’’