Kissel v. Center for Women's Health, P.C. ( 2021 )

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JUDITH KISSEL v. CENTER FOR WOMEN’S
HEALTH, P.C., ET AL.
(AC 42469)
(AC 42493)
(AC 42505)
Moll, Alexander and Norcott, Js.
Syllabus
The plaintiff sought to recover damages from the defendant acupuncturist,
W, and his employer, C Co., for injuries she suffered when a heat lamp
used during an acupuncture treatment burned her left foot and toes
due to W’s alleged medical malpractice. The plaintiff attached to her
complaint a good faith certificate from her attorney but did not attach
a written and signed opinion letter from a similar health care provider.
C Co. filed a motion to dismiss the action on the ground that the plaintiff
failed to attach a written opinion letter from a similar health care pro-
vider as required by statute (§ 52-190a). Thereafter, W joined C Co.’s
motion to dismiss. Subsequently, the plaintiff filed a request to amend
her complaint to attach an opinion letter that she indicated had existed
at the time the complaint was originally filed but inadvertently was not
attached. The plaintiff also objected to the motions to dismiss and
claimed that the trial court had discretion to allow the amendment and
to deny the motions to dismiss because the opinion letter existed at the
time the action was commenced and was only inadvertently not attached
to the original complaint. The trial court denied the motions to dismiss
and overruled the objections to the plaintiff’s request to amend. There-
after, the court granted W’s motion to implead H Co., the distributor of
the heat lamp, as a third-party defendant. Subsequently, the plaintiff
filed an amended complaint to allege a product liability claim against
H Co. Following a trial, the jury returned a verdict in favor of the plaintiff
on the medical malpractice and product liability counts. Thereafter, the
court granted W’s and C Co.’s motions for permission to file a second
motion for reconsideration of the denial of their motions to dismiss but
denied the requested relief, denied H Co.’s motions for a directed verdict
and to set aside the verdict, and rendered judgment in accordance with
the verdict. On separate appeals brought to this court by W, C Co., and
H Co., held:
1. The trial court improperly denied the motions to dismiss filed by W and
C Co., the plaintiff having failed to attach a written opinion letter to
her complaint as required by § 52-190a and having failed to cure that
defect before the statute of limitations expired: this court’s decision in
Peters v. United Community & Family Services, Inc. (182 Conn. App.
688), made clear that a plaintiff’s efforts to cure a defective opinion
letter must be initiated prior to the expiration of the statute of limitations,
and the plaintiff did not seek to remedy her failure to attach the written
opinion letter to her original complaint before the two year statute of
limitations had expired, and, contrary to the plaintiff’s argument, W and
C Co. did not waive argument on the statute of limitations because they
did not raise it in their 2012 motions to dismiss, as that argument was
raised in their motions to reargue based on new, controlling case law;
moreover, a jury verdict in a medical malpractice action does not insulate
a defect in the required opinion letter from appellate review; further-
more, because the plaintiff had knowledge on the date of the incident
of the nature and extent of her injuries, she could not rely on the three
year statute (§ 52-584) of repose, and, thus, pursuant to § 52-584, the
action was subject to a two year statute of limitations.
2. The trial court properly denied H Co.’s motions for a directed verdict
and to set aside the verdict; the plaintiff presented alternative bases
of causation for her injuries, and, because there was a lack of jury
interrogatories to specify which basis of causation the jury used to
reach its verdict, H Co. was required to establish that the evidence was
insufficient to support any of the specifications of causation pursued
by the plaintiff, however, H Co. argued on appeal only that the plaintiff
failed to establish how or why the heat lamp came into contact with
her foot and its failure to challenge the alternative bases of causation
was fatal to its appeal.
Argued October 5, 2020—officially released June 29, 2021
Procedural History
Action to recover damages for medical malpractice,
and for other relief, brought to the Superior Court in
the judicial district of Stamford-Norwalk, where the
court, Hon. Edward R. Karazin, Jr., judge trial referee,
denied the defendants’ motions to dismiss; thereafter,
the court, Mottolese, J., granted the motion of the defen-
dant Reed Wang to implead Health Body World Supply,
Inc., as a third-party defendant; subsequently, the plain-
tiff filed an amended complaint; thereafter, the matter
was tried to the jury before Hon. Kenneth B. Povodator,
judge trial referee; verdict for the plaintiff; subse-
quently, the court, Hon. Kenneth B. Povodator, judge
trial referee, denied the defendants’ postverdict
motions and rendered judgment in accordance with
the verdict, from which the defendants filed separate
appeals to this court; thereafter, this court consolidated
the appeals. Affirmed in part; reversed in part; judg-
ment directed.
Wesley W. Horton, with whom were Kenneth J.
Bartschi and, on the brief, Mary Alice Moore Leon-
hardt, for the appellant in Docket No. AC 42469 (defen-
dant Reed Wang).
David J. Robertson, with whom was Keith M. Blu-
menstock, for the appellant in Docket No. AC 42493
(named defendant).
Laura Pascale Zaino, with whom were Paul D.
Meade and, on the brief, Logan A. Carducci, for the
appellant in Docket No. AC 42505 (defendant Health
Body World Supply, Inc.).
William M. Bloss, with whom, on the brief, were
Alinor C. Sterling, Matthew S. Blumenthal, Sarah
Steinfeld, and Sean K. McElligott, for the appellee
(plaintiff).
Opinion
ALEXANDER, J. This trilogy of appeals originated
when the plaintiff, Judith Kissel, sustained serious
burns to her left foot during the course of an acupunc-
ture treatment. The plaintiff commenced a medical mal-
practice action against the treating acupuncturist, Reed
Wang, and his place of employment, the Center for
Women’s Health, P.C. (Center). The plaintiff subse-
quently filed a third-party complaint alleging a product
liability claim against Health Body World Supply, Inc.,
also known as WABBO, the distributor of a device com-
monly referred to as the Miracle Lamp (heat lamp),
which injured her. After a trial on both the medical
malpractice and product liability claims, the jury
returned a verdict for the plaintiff on all counts, award-
ing her a total of $1 million in damages. Following the
resolution of various postverdict motions, the court
rendered judgment in accordance with the jury’s ver-
dict.
Wang, the Center, and WABBO each filed a separate
appeal, docketed as AC 42469, AC 42493, and AC 42505,
respectively. In AC 42469 and AC 42493, Wang and the
Center claim that (1) the trial court improperly denied
their motions to dismiss the medical malpractice action
for failing to comply with General Statutes § 52-190a
because the plaintiff failed to attach to her initial com-
plaint an opinion letter from a similar health care pro-
vider and her efforts to cure this defect occurred outside
of the limitation period, (2) the court improperly denied
the request for an evidentiary hearing with respect to
the jurisdictional facts related to the opinion letter, (3)
the plaintiff failed to present sufficient evidence with
respect to causation, and (4) the court improperly
instructed the jury regarding expert testimony and cau-
sation. In AC 42505, WABBO claims that the court
improperly denied its motions for a directed verdict
and to set aside the verdict because the plaintiff failed
to present sufficient evidence as to the element of cau-
sation. The plaintiff maintains that the judgment of the
trial court should be affirmed.
In AC 42469 and AC 42493, we agree with Wang and
the Center that the court improperly denied their
motions to dismiss the plaintiff’s medical malpractice
complaint as a result of her failure to attach the requisite
opinion letter to the complaint and to cure this defect
by the expiration of the statute of limitations.1 In AC
42505, we conclude that the plaintiff presented suffi-
cient evidence with respect to her product liability com-
plaint. The court, therefore, properly denied WABBO’s
motions for a directed verdict and to set aside the ver-
dict. Accordingly, we reverse the judgment with respect
to Wang and the Center on the medical malpractice
claims, and affirm the judgment with respect to the
product liability claims.
The following recitation, as set forth by the court in
its postverdict memorandum of decision,2 summarizes
the facts and procedural history and serves as a starting
point to address the claims raised in these appeals. The
plaintiff, a patient at the Center, went to Wang for her
first acupuncture treatment on April 22, 2010. At this
visit, Wang inserted needles in the plaintiff’s body and
placed the heat lamp3 near her foot as part of the treat-
ment. The surface temperature of this device, which
was distributed by WABBO,4 exceeded 500 degrees. As
part of his standard practice, Wang left the plaintiff
alone in the treatment room, but remained close by.
‘‘When . . . Wang returned to the room several
minutes later, the head of the heat lamp was resting
against the plaintiff’s foot, having caused serious injur-
ies to her foot. He removed the lamp from her foot,
and he (and the principal of the Center) transported
the plaintiff to a hospital for treatment.’’5
A significant issue at trial was the exact manner in
which the head of the heat lamp, which housed the
heating element, came into contact with the plaintiff’s
left foot. No one observed whether the head of the
heat lamp had descended or whether the entire lamp
assembly had tipped over.6 The parties presented exten-
sive evidence regarding the propensity of the head of
the lamp to lower on its own or whether such movement
was the result of some external force.
‘‘The jury awarded the plaintiff $1 million as to each
of the claim/theories of liability presented. With respect
to the medical malpractice claim, the jury determined
that the plaintiff was not comparatively negligent. With
respect to the product liability claim, the jury deter-
mined that the plaintiff was not comparatively responsi-
ble for her injuries, but pursuant to General Statutes
§ 52-572o, the jury determined that . . . Wang, as a
party to this action, had been 20 [percent] responsible.
The plaintiff had not made any claim for economic
damages, so the full award was for noneconomic dam-
ages.’’ With this factual overview in mind, we now pro-
ceed to the specific claims raised in each of these
appeals.
I
AC 42469 and AC 42493
In AC 42469 and AC 42493, Wang and the Center
claim, inter alia, that the court improperly denied their
motions to dismiss the plaintiff’s medical malpractice
complaint.7 Specifically, Wang and the Center contend
that the court lacked personal jurisdiction on the basis
of the plaintiff’s failure (1) to attach an opinion letter
from a similar health care provider to her medical mal-
practice complaint and (2) to cure that defect within
the applicable two year statutory limitation period. The
plaintiff counters that the court properly denied the
motions to dismiss the medical malpractice complaint.
She argues that Wang and the Center waived their stat-
ute of limitations defense and that the purpose of the
statute was satisfied, as evidenced by the jury’s verdict
in the present case. The plaintiff contends that the three
year statute of repose contained in General Statutes
§ 52-584 applied and, therefore, the amendment to the
complaint containing the opinion letter was timely and
cured the defect. We agree with Wang and the Center
that the medical malpractice complaint should have
been dismissed pursuant to § 52-190a (c) and that the
plaintiff’s efforts to cure the defect were not timely.
A detailed recitation of the facts and procedural his-
tory is necessary for the resolution of this claim.8 The
plaintiff’s complaint was served on the Center on April
4, 2012, and on Wang on April 6, 2012. In her two count
complaint, dated March 30, 2012, the plaintiff alleged
that Wang, as ‘‘a servant, agent, apparent agent and/or
employee of [the Center]’’ held himself out as a licensed
acupuncturist in Connecticut.9 She further alleged that
she sustained injuries as a result of Wang’s failure to
exercise the degree and care of a licensed acupuncturist
in the following ways: (1) failing to protect her from
contact with the heat lamp during the acupuncture
treatment; (2) failing to place the heat lamp at a safe
distance during the treatment; (3) leaving her unat-
tended during the acupuncture treatment and failing to
respond promptly to the her cries for help while she
was being burned; (4) failing to use a safe heating sys-
tem during the acupuncture treatment; and (5) not car-
ing for, treating, monitoring, diagnosing, and supervis-
ing her adequately and properly during the acupuncture
treatment. As a result of this professional negligence,
the plaintiff alleged a variety of injuries.10
The plaintiff’s counsel attached a certification to the
complaint indicating that he had made a reasonable
inquiry that led to a good faith belief that grounds
existed for this medical malpractice action against
Wang and the Center. See footnote 15 of this opinion.
The plaintiff did not, however, include a written and
signed opinion letter from a similar health care pro-
vider11 to show the existence of a good faith belief for
this action as required by § 52-190a (a).12
On May 24, 2012, the Center filed a timely motion to
dismiss the plaintiff’s complaint for lack of personal
jurisdiction.13 It claimed that the plaintiff failed to attach
a written opinion letter from a similar health care pro-
vider to the complaint as required by § 52-190a (a). It
argued that the plaintiff’s action sounded in medical
malpractice and that her failure to comply with subsec-
tion (a) of § 52-190a required dismissal pursuant to sub-
section (c) of that statute.14 On June 8, 2012, Wang
joined the Center’s motion to dismiss.
On June 28, 2012, the plaintiff requested leave to file
a first amended complaint. In this request, the plaintiff
indicated that ‘‘the similar health care provider opinion
existed at the time the complaint was originally filed
but was inadvertently not attached to the original com-
plaint.’’ The plaintiff attached exhibit A to the request
to file an amended complaint. Exhibit A included a copy
of a proposed first amended complaint, the original
certificate from the plaintiff’s counsel, and an unsigned
and undated opinion letter.15 An affidavit from the plain-
tiff’s attorney was attached as exhibit B. In this affidavit,
the plaintiff’s counsel averred that he represented the
plaintiff in this medical malpractice action, had con-
sulted with an expert, a licensed acupuncturist, begin-
ning on November 16, 2011, and provided this expert
with the plaintiff’s medical records. He further repre-
sented that the expert signed the opinion letter on Feb-
ruary 19, 2012, and had transmitted it to his representa-
tive that same day. The plaintiff’s counsel indicated
that he inadvertently failed to attach this letter to the
complaint on March 30, 2012.
Additionally, the plaintiff also filed a consolidated
opposition to the motions to dismiss filed by Wang and
the Center on June 28, 2012.16 Citing to this court’s
decision in Votre v. County Obstetrics & Gynecology
Group, P.C., 113 Conn. App. 569, 585, 966 A.2d 813,
cert. denied, 292 Conn. 911, 973 A.2d 661 (2009), the
plaintiff argued that ‘‘where the opinion letter exists at
the time of the commencement of the action, but is
inadvertently not attached to the complaint, a trial court
has discretion to allow the amendment and deny a
motion to dismiss.’’ She further claimed that the dis-
missal of her complaint ‘‘would elevate form over sub-
stance’’ and would violate Connecticut’s public policy
of allowing a trial on the merits. The plaintiff empha-
sized that ‘‘the important dividing line is whether the
opinion letter existed at the time the lawsuit was com-
menced or whether it was created after commence-
ment. . . . Accordingly, the rule in Votre, which pro-
vides a safe harbor when the opinion letter exists prior
to commencement of the lawsuit, comports with the
purpose of § 52-190a and common sense.’’ The Center
filed a reply to the plaintiff’s opposition to its motion
to dismiss.17
On July 9, 2012, the Center objected to the plaintiff’s
request for leave to amend her complaint. It argued that
the court lacked discretion to permit an amendment to
the complaint in order for the plaintiff to attach an
opinion letter from a similar health care provider. The
Center also argued that a hearing was required to
resolve its challenge to certain facts contained in the
affidavit of the plaintiff’s counsel.
On July 16, 2012, the court, Hon. Edward R. Karazin,
Jr., judge trial referee, heard oral argument on the
motions to dismiss. Counsel for the Center argued that
the failure to include the opinion letter of a similar
health care provider constituted insufficient process
and that the plaintiff should not be permitted to amend
her complaint. The plaintiff’s counsel emphasized that
because the opinion letter existed at the time the medi-
cal malpractice case had been commenced, the court
had discretion to grant the plaintiff’s request to amend
the complaint so as to include the opinion letter.
On September 6, 2012, the court issued a memoran-
dum of decision denying the motions to dismiss. After
summarizing the arguments of the parties and setting
forth the relevant law, the court framed the issue as
follows: ‘‘Although the law is explicit that a written
opinion letter complying with § 52-190a (a) must be
attached to the complaint in a medical malpractice case
in order to subject the defendant to the jurisdiction of
the court and to avoid dismissal of the action, the law
is less clear as to the legal consequences when a plaintiff
obtained a statutorily valid written opinion letter prior
to commencing the action but failed to attach it to her
original complaint and subsequently seeks to amend
her complaint to attach that written opinion letter.’’
After quoting from our decision in Votre v. County
Obstetrics & Gynecology Group, P.C., supra, 113 Conn.
App. 585,18 the trial court noted that the discretionary
power to permit an amendment to a complaint to
include the § 52-190a letter applied only when such a
letter existed prior to the commencement of the action.
The court noted the split of authority among decisions
of the Superior Court as to whether the referenced
passage from Votre constituted dicta and concluded
that it had the discretion to allow the plaintiff to amend
her complaint. ‘‘Without taking a position on the viabil-
ity of the language at issue in Votre, this court holds,
in the absence of any appellate authority to the contrary,
that to the extent that the written opinion letter existed
prior to the commencement of this action, then the
court, in the exercise of its discretion, may deny the
. . . motions to dismiss and consider the written opin-
ion letter that is attached to the amended complaint.’’
The court next addressed whether the opinion letter
had existed prior to the commencement of the plaintiff’s
medical malpractice action. The court recognized that
the plaintiff claimed that the undated letter had been
written prior to the lawsuit, while Wang and the Center
disputed this fact. Nevertheless, it determined that an
evidentiary hearing was not required. The court
explained: ‘‘Turning, then, to the attestations made in
the affidavit, the attorney claims that he signed the
complaint in this action on March 30, 2012, and that at
that time he filed the complaint, the signed, written
opinion letter of the similar health care provider existed
and was retained in the plaintiff’s file. He further attests
that his failure to attach the written opinion letter was
inadvertent and an oversight. Such attestations are
based on the attorney’s personal knowledge, and consti-
tute facts that would be admissible at trial and indicate
that the attorney is competent to testify to the matters
stated in the affidavit. [Wang and the Center did] not
submit any evidence to rebut the attorney’s attestations,
but rather make conclusory statements challenging the
evidence. . . . Therefore, in the absence of counterevi-
dence by [Wang and the Center], the court finds that
the written opinion letter existed prior to the com-
mencement of this action and that the attorney’s failure
to attach it to the original complaint was inadvertence
or an oversight.’’ (Citations omitted.)
In summary, the court found that the opinion letter
had been authored prior to the commencement of the
action and that the failure to attach it to the original
complaint resulted from inadvertence or oversight. It
permitted the plaintiff to amend her complaint to
include the opinion letter. On September 21, 2012, the
court denied the motions to reargue and for reconsider-
ation filed by Wang and the Center.
A number of pretrial filings, motions and hearings
ensued and the trial did not commence until November
16, 2017. The jury returned its verdict in favor of the
plaintiff on both the malpractice and product liability
counts on December 21, 2017. Approximately six
months later, Wang filed a motion for permission to
file a second motion for reconsideration of the denial
of his motion to dismiss.19 Wang argued that this court’s
recently released decision in Peters v. United Commu-
nity & Family Services, Inc., 182 Conn. App. 688, 191
A.3d 195 (2018), was ‘‘directly on point factually, [was]
controlling legally, and [served] as additional grounds
for the dismissal of [the plaintiff’s] claims in the instant
action.’’ On September 6, 2018, the court, Hon. Kenneth
B. Povodator, judge trial referee, heard oral argument
on both the motion for permission to file a second
motion for reconsideration and the substantive merits
of the request for reconsideration.
At the hearing, Wang argued that, pursuant to Peters,
any attempt to cure a defect relating to a § 52-190a
opinion letter must have occurred prior to the expira-
tion of the statutory limitation period; otherwise, the
only available remedy was to commence a new action
pursuant to the accidental failure of suit statute, Gen-
eral Statutes § 52-592.20 The plaintiff countered that
Judge Karazin, in his 2012 decision, properly had relied
on Votre, and that case remained good law even after
Peters. Six days later, the Center joined Wang’s motion
for permission to file a second motion for reconsidera-
tion of the denial of the 2012 motion to dismiss.
On January 3, 2019, Judge Povodator issued a memo-
randum of decision addressing the postverdict motions
that had been filed, including the motions for reconsid-
eration of the 2012 motions to dismiss.21 The court began
by summarizing the issues relating to § 52-190a in this
case and the relevant language from our decisions in
Votre v. County Obstetrics & Gynecology Group, P.C.,
supra, 113 Conn. App. 585, and Peters v. United Com-
munity & Family Services, Inc., supra, 182 Conn. App.
706. After observing that its decision constituted a
‘‘close call,’’ the court focused on the issue of judicial
economy and that the purpose underlying § 52-190a had
been satisfied, given the jury’s verdict in favor of the
plaintiff.
The court concluded: ‘‘It would be inequitable and
highly wasteful to reverse the earlier decisions in such
a belated fashion. Subject matter jurisdictional issues
may be raised at any time, but other jurisdictional issues
are subject to waiver—and inferentially subject to other
equitable considerations. For all these reasons, the
motions to reargue are (have been) granted with respect
to entertaining reargument and reconsidering the ear-
lier decision, but the equities overwhelmingly dictate
against affording any relief.’’
On appeal, Wang and the Center argue that the court
improperly denied their motions to dismiss. Specifi-
cally, they contend that the plaintiff’s complaint did not
comply with § 52-190a due to the absence of an opinion
letter from a similar health care provider. They claim
that the plaintiff did not attempt to remedy this defect
until after the statute of limitations had expired. Wang
and the Center contend that the plaintiff’s medical mal-
practice action should have been dismissed. The plain-
tiff counters that (1) Wang and the Center waived the
argument that the § 52-190a defect was not cured within
the statutory limitation period, (2) the purpose underly-
ing § 52-190a was satisfied in this case given the jury’s
finding of medical malpractice, and (3) her amendment
was filed within the three year repose period of § 52-
584, which she claims is the limitation period. We agree
that the court lacked personal jurisdiction over Wang
and the Center as a result of the plaintiff’s failure to
cure the § 52-190a defect within the statutory limitation
period and that the medical malpractice action, there-
fore, should have been dismissed.
We begin our analysis by setting forth our standard
of review and a comprehensive review of the relevant
legal principles. ‘‘A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without
jurisdiction. . . . Our Supreme Court has held that the
failure of a plaintiff to comply with the statutory require-
ments of § 52-190a (a) results in a defect in process that
implicates the personal jurisdiction of the court. . . .
‘‘When a . . . court decides a . . . question raised
by a pretrial motion to dismiss, it must consider the
allegations of the complaint in their most favorable
light. . . . In this regard, a court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing them in a manner most favorable to the pleader.
. . . The motion to dismiss . . . admits all facts which
are well pleaded, invokes the existing record and must
be decided upon that alone.’’ (Citations omitted; inter-
nal quotation marks omitted.) Labissoniere v. Gaylord
Hospital, Inc., 199 Conn. App. 265, 278–79, 235 A.3d
589, cert. denied, 335 Conn. 968, 240 A.3d 284 (2020),
and cert. denied, 335 Conn. 968, 240 A.3d 285 (2020);
see also Bennett v. New Milford Hospital, Inc., 300
Conn. 1, 10–11, 12 A.3d 865 (2011). We employ a de
novo standard of review with respect to a challenge to
the trial court’s ultimate legal conclusion and resulting
denial of a motion to dismiss. Perrone v. Buttonwood
Farm Ice Cream, Inc., 158 Conn. App. 550, 554, 119
A.3d 659 (2015); see also Bennett v. New Milford Hospi-
tal, Inc., supra, 10; Labissoniere v. Gaylord Hospital,
Inc., 182 Conn. App. 445, 451, 185 A.3d 680 (2018);
Lohnes v. Hospital of St. Raphael, 132 Conn. App. 68,
76, 31 A.3d 810 (2011), cert. denied, 303 Conn. 921, 34
A.3d 397 (2012).22
Next, we turn to the statutory language. Section 52-
190a (a) provides in relevant part: ‘‘No civil action . . .
shall be filed to recover damages resulting from per-
sonal injury or wrongful death occurring on or after
October 1, 1987, whether in tort or in contract, in which
it is alleged that such injury or death resulted from the
negligence of a health care provider, unless the attorney
or party filing the action . . . has made a reasonable
inquiry as permitted by the circumstances to determine
that there are grounds for a good faith belief that there
has been negligence in the care or treatment of the
claimant. The complaint . . . shall contain a certificate
of the attorney or party filing the action . . . that such
reasonable inquiry gave rise to a good faith belief that
grounds exist for an action against each named defen-
dant . . . . To show the existence of such good faith,
the claimant or the claimant’s attorney . . . shall
obtain a written and signed opinion of a similar health
care provider, as defined in section 52-184c, which
similar health care provider shall be selected pursuant
to the provisions of said section, that there appears
to be evidence of medical negligence and includes a
detailed basis for the formation of such opinion. Such
written opinion shall not be subject to discovery by any
party except for questioning the validity of the certifi-
cate. The claimant or the claimant’s attorney . . . shall
retain the original written opinion and shall attach a
copy of such written opinion, with the name and signa-
ture of the similar health care provider expunged, to
such certificate. . . .’’ (Emphasis added.) See also Tor-
res v. Carrese, 149 Conn. App. 596, 608, 90 A.3d 256,
cert. denied, 312 Conn. 912, 93 A.3d 595 (2014). Simply
stated, § 52-190a applies when (1) the defendant is a
health care provider and (2) the claim is one of medical
malpractice. LaPierre v. Mandell & Blau, M.D.’s, P.C.,
202 Conn. App. 44, 49, 243 A.3d 816 (2020).
In Bennett v. New Milford Hospital, Inc., supra, 300
Conn. 27, our Supreme Court explained that the purpose
of § 52-190a ‘‘is to discourage the filing of baseless law-
suits against health care providers . . . .’’ (Internal
quotation marks omitted.) See generally Wilcox v.
Schwartz, 303 Conn. 630, 640–43, 37 A.3d 133 (2012)
(setting forth history of § 52-190a); Plante v. Charlotte
Hungerford Hospital, 300 Conn. 33, 54, 12 A.3d 885(2011) (legislature established comprehensive prelitiga-
tion inquiry, including requirement of opinion letter by
objectively qualified health care provider, in attempt to
reduce filing of frivolous medical malpractice actions).
The court in Bennett also considered § 52-190a (c),
which provides that ‘‘[t]he failure to obtain and file
the written opinion required by subsection (a) of this
section shall be grounds for dismissal of the action.’’
(Emphasis added.) In interpreting subsection (c) of
§ 52-190a, our Supreme Court concluded that a motion
to dismiss constitutes the proper procedural vehicle
to challenge any deficiencies with the requisite letter.
Bennett v. New Milford Hospital, Inc., supra, 300
Conn. 29.
Cognizant of the severity of the dismissal of an action
as a result of a noncompliant opinion letter, the court
noted that such a dismissal was without prejudice and
that, in the event that the statute of limitations had run,
the accidental failure of suit statute, § 52-592,23 may
afford relief in certain circumstances. Id., 30–31; see
also Plante v. Charlotte Hungerford Hospital, supra,
300 Conn. 46–47 (holding that when medical malprac-
tice action has been dismissed pursuant to § 52-190a
(c) for failure to supply opinion letter by similar health
care provider, plaintiff may commence otherwise time
barred action pursuant to matter of form provisions of
§ 52-592 (a), only if that failure was caused by simple
mistake or omission, rather than egregious conduct or
gross negligence attributable to plaintiff or plaintiff’s
attorney). It bears emphasizing, however, that ‘‘[d]is-
missal is the mandatory remedy when a plaintiff fails
to file an opinion letter that complies with § 52-190a
(a).’’ (Internal quotation marks omitted.) Doyle v. Aspen
Dental of Southern CT, PC, 179 Conn. App. 485, 492, 179
A.3d 249 (2018); see also Peters v. United Community &
Family Services, Inc., supra, 182 Conn. App. 701; see
generally Votre v. County Obstetrics & Gynecology
Group, P.C., supra, 113 Conn. App. 584 (noting that
courts are bound to uphold law that legislature adopts
and that § 52-190a (c) plainly states that failure to
include letter mandated by § 52-190a (a) shall be
grounds to dismiss action).
In Morgan v. Hartford Hospital, 301 Conn. 388, 397,
21 A.3d 451 (2011), our Supreme Court determined ‘‘the
precise nature of the jurisdiction which is to be chal-
lenged pursuant to the dismissal language of § 52-190a
(a).’’ After a review of the relevant case law, it con-
cluded that the failure to comply with the requirements
of § 52-190a (a) implicated personal jurisdiction and
not the subject matter jurisdiction of the court. Id., 399.
It noted that, unlike matters involving subject matter
jurisdiction, personal jurisdiction may be obtained via
consent or waiver. Id. Additionally, the Morgan court
noted that a motion to dismiss contesting personal juris-
diction must be filed within thirty days of the filing of
an appearance or such a claim would be waived. Id.;
see also Practice Book §§ 10-6, 10-7, 10-30, and 10-32.
‘‘Accordingly, we conclude that, because the written
opinion letter of a similar health care provider must be
attached to the complaint in proper form, the failure
to attach a proper written opinion letter pursuant to
§ 52-190a constitutes insufficient service of process
and, therefore, Practice Book § 10-32 and its corres-
ponding time and waiver rule applies by its very terms.
Because we conclude that the absence of a proper writ-
ten opinion letter is a matter of form, it implicates
personal jurisdiction. It is in the nature of a pleading
that must be attached to the complaint.’’ (Footnote
omitted.) Morgan v. Hartford Hospital, supra, 402; see
also Ugalde v. Saint Mary’s Hospital, Inc., 182 Conn.
App. 1, 7, 188 A.3d 787, cert. denied, 330 Conn. 928, 194
A.3d 1195 (2018); Gonzales v. Langdon, 161 Conn. App.
497, 513–14, 128 A.3d 562 (2015).
Thus, in a medical malpractice action, a plaintiff must
comply with § 52-190a by including an opinion letter
from a similar health care provider with the complaint
to establish personal jurisdiction, and a timely challenge
to the failure to include a legally sufficient opinion letter
will result in a dismissal. In a series of decisions, all of
which were issued after the 2012 motions to dismiss
and during the pendency of these proceedings before
the trial court, our court addressed how a plaintiff,
whose opinion letter to the medical malpractice com-
plaint was defective, could avoid dismissal or otherwise
pursue his or her claim.
In Gonzales v. Langdon, supra, 161 Conn. App. 508,
we considered ‘‘whether a complaint alleging medical
malpractice that does not include a legally sufficient
opinion letter may be amended to avoid dismissal, and
under what circumstances an amendment is permitted.’’
In that case, the plaintiff alleged that the defendant, a
dermatologist who held himself out as a specialist in
cosmetic surgery, negligently performed a neck and
jowl face-lift procedure. Id., 500–501. The plaintiff
attached an opinion letter from a board certified derma-
tologist. Id., 501. The defendant moved to dismiss the
complaint on the basis that the opinion letter contained
insufficient details regarding the qualifications of the
author of the opinion letter. Id. In addition to her con-
tention that the original opinion letter was, in fact,
legally sufficient, the plaintiff filed a request for leave
to amend her complaint more than thirty days from the
return date, thus past the time to amend it as of right,24
but within the applicable statutory limitation period. Id.,
501–502. Specifically, she sought to include an amended
version of the original opinion letter and a new opinion
letter authored by a board certified plastic surgeon. Id.,
501. The trial court granted the defendant’s motion to
dismiss on the basis that the original opinion letter was
not legally sufficient. Id., 502–503.
On appeal, we agreed that the original opinion letter
was insufficient because the author was not a similar
health care provider as defined by § 52-184c (c).25 Id.,
507. We then considered whether the plaintiff’s com-
plaint could be amended and the circumstances under
which such an amendment would be permitted. Id., 508.
We reasoned that the general applicability of General
Statutes § 52-128 and Practice Book §§ 10-59 and 10-
60, the policies underlying § 52-190a (a), and judicial
economy all favored permitting an amendment filed
after the thirty days to amend as of right but before
the statute of limitations had expired. Id., 517–20. We
concluded, therefore, that the trial court had abused
its discretion by not granting the plaintiff leave to amend
the complaint with the amended original opinion letter
and the new opinion letter. Id., 521. We further deter-
mined, however, that the amended original opinion let-
ter did not meet the requirements of §§ 52-190a and 52-
184c, and that the record was insufficient to determine
whether the new opinion letter satisfied § 52-184c (c).
Id., 523.
Next, in Ugalde v. Saint Mary’s Hospital, Inc., supra,182 Conn. App. 3, the plaintiff alleged that the defen-
dant, a general surgeon, negligently performed a robot-
assisted gastrectomy. The opinion letter attached to the
complaint failed to identify the medical qualifications
of its author. Id., 5. The defendant, therefore, moved
to dismiss the complaint on the basis of a deficient
opinion letter. Id. The plaintiff filed a request for leave
to amend the complaint by adding details to the opinion
letter regarding the author’s medical qualifications. Id.
The trial court granted the defendant’s motion, reason-
ing that a request for leave to amend the complaint had
been filed outside of the applicable limitation period.
Id., 6.
On appeal, the plaintiff argued only that she should
have been permitted to amend the complaint with a
more detailed opinion letter. Id., 8. In rejecting this
argument, we first noted: ‘‘In Gonzales v. Langdon,
[supra, 161 Conn. App. 510], this court held, as a matter
of first impression, that a legally insufficient opinion
letter may be cured by amendment under two circum-
stances. The court held: [I]f a plaintiff alleging medical
malpractice seeks to amend his or her complaint in
order to amend the original opinion letter, or to substi-
tute a new opinion letter for the original opinion letter,
the trial court (1) must permit such an amendment
if the plaintiff seeks to amend as of right within thirty
days of the return day and the action was brought
within the statute of limitations, and (2) has discre-
tion to permit such an amendment if the plaintiff seeks
to amend within the applicable statute of limitations
but more than thirty days after the return day. The
court may abuse its discretion if it denies the plaintiff’s
request to amend despite the fact that the amendment
would cure any and all defects in the original opinion
letter and there is an absence of other independent
reasons to deny permission for leave to amend.’’
(Emphasis added; internal quotation marks omitted.)
Ugalde v. Saint Mary’s Hospital, Inc., supra, 182 Conn.
App. 8.
The plaintiff conceded that she had failed to file her
request for leave to amend the complaint within thirty
days of the return date. Id., 8–9. We then rejected the
plaintiff’s reliance on Gonzales v. Langdon, supra, 161
Conn. App. 497, explaining: ‘‘The holding in Gonzales
permits amendment to legally insufficient opinion let-
ters only if they are sought prior to the expiration of
the statute of limitations.’’ (Emphasis added.) Ugalde
v. Saint Mary’s Hospital, Inc., supra, 182 Conn. App. 12.
Finally, in Peters v. United Community & Family
Services, Inc., supra, 182 Conn. App. 691, the plaintiff
sued the defendant dentist, who held himself out as a
specialist in oral and maxillofacial surgery, for malprac-
tice. The opinion letter attached to the complaint did
not indicate if its author was certified as a specialist.
Id., 692. The defendant moved to dismiss the complaint,
arguing that the opinion letter needed to be authored
by an individual trained in the same medical specialty
and certified by an American board in the same medical
specialty. Id., 693. In response, the plaintiff contended
that the author had ‘‘inadvertently left out the fact that
he was board certified’’ and sought to cure this defect
by submitting an affidavit attesting that the author had
been board certified at all relevant times. Id., 694–95.
The plaintiff, however, did not seek permission to
amend the complaint or to file an amended opinion
letter. Id., 695.
At oral argument on the motion to dismiss, the defen-
dant argued that the court lacked discretion to consider
the affidavit because the efforts to cure the opinion
letter had occurred more than thirty days after the
return date of the complaint and after the statute of
limitations had expired. Id., 695. The court subse-
quently granted the defendant’s motion to dismiss. Id.,696–97. It agreed that the letter was deficient because
it had failed to state whether the author was board
certified, and concluded that it was not necessary to
determine whether this deficiency could be remedied
by the filing of an affidavit rather than an amended
pleading because neither option remained viable due
to the expiration of the statute of limitations. Id., 697–98.
On appeal, the sole issue before this court was
‘‘whether the trial court, in ruling on the motion to
dismiss, correctly determined that our decision in Gon-
zales v. Langdon, supra, 161 Conn. App. 497 . . .
barred it from considering the affidavit that [the plain-
tiff] had attached to his opposition to the motion to
dismiss in an effort to cure the defect in the opinion
letter attached to the complaint.’’ Peters v. United Com-
munity & Family Services, Inc., supra, 182 Conn. App.
699.26 We concluded that the plaintiff’s efforts to correct
the deficient opinion letter had occurred after the expi-
ration of the statute of limitations and, therefore, the
court properly granted the defendant’s motion and dis-
missed the action. Id.In our analysis, we noted that, prior to our decision
in Gonzales v. Langdon, supra, 161 Conn. App. 497, our
Supreme Court had recognized that a plaintiff whose
medical malpractice action that had been dismissed for
failing to comply with the opinion letter requirements
of § 52-190a (a), could either refile the action or attempt
to seek redress via § 52-592. Peters v. United Commu-
nity & Family Services, Inc., supra, 182 Conn. App.
701. We also recognized that, in Gonzales v. Langdon,
supra, 510, this court had held, for the first time, that
‘‘a plaintiff who files a legally insufficient opinion letter
may, in certain instances, cure the defective opinion
letter through amendment of the pleadings, thereby
avoiding the need to file a new action.’’ Peters v. United
Community & Family Services, Inc., supra, 701.
Turning to the facts and circumstances in Peters,
this court acknowledged that certain decisions of the
Superior Court had permitted a plaintiff to cure a defec-
tive opinion letter via a supplemental affidavit rather
than by seeking leave to file an amended pleading.
Peters v. United Community & Family Services, Inc.,
supra, 182 Conn. App. 703–704. We ultimately declined
to address that issue27 and concluded that, because the
plaintiff had failed to undertake any attempt to remedy
the defective opinion letter until after the statute of
limitations had expired, the trial court properly had
granted the motion to dismiss. Id., 705–706. ‘‘Regardless
of the type of procedure a plaintiff elects to employ to
cure a defect in an opinion letter filed in accordance
with § 52-190a, that procedure must be initiated prior
to the running of the statute of limitations. Otherwise
the sole remedy available will be to initiate a new action,
if possible, pursuant to § 52-592.’’ Id., 706.
Guided by these precedents, we return to the facts
of the present case. The plaintiff commenced her action
against Wang and the Center on April 6, 2012, and April
4, 2012, respectively. In her pleadings, she consistently
alleged that, on April 22, 2010, she suffered injuries,
namely, the burning of her toes and foot, as a result of
Wang’s professional negligence. The plaintiff’s counsel
attached a signed, good faith certificate that he had
conducted a reasonable inquiry into the circumstances
of the plaintiff’s claims and that, on the basis of that
inquiry, he believed in good faith that Wang and the
Center had been negligent in the treatment of the plain-
tiff. The plaintiff’s counsel, however, failed to attach a
signed opinion letter from a similar health care provider
as required by § 52-190a. Accordingly, Wang and the
Center timely moved to dismiss the plaintiff’s action
pursuant to § 52-190a (c).
On June 28, 2012, the plaintiff filed a request for leave
to file an amended complaint and a memorandum in
opposition to the 2012 motions to dismiss. In the former,
the plaintiff indicated that the purpose of the requested
amended complaint was to include a written, signed
opinion letter from a similar health care provider that
had existed at the time the complaint had been filed,
but inadvertently was not attached to the original com-
plaint. The plaintiff’s counsel also included an affidavit
setting forth the details regarding when he had received
the opinion letter and the inadvertent failure to attach
the signed opinion letter to the complaint.
After hearing oral argument, the court issued a memo-
randum of decision on September 6, 2012, denying the
motions to dismiss and overruling the objection to the
plaintiff’s request for leave to amend her complaint.
The court reasoned that the plaintiff had obtained the
opinion letter prior to the commencement of her medi-
cal malpractice action, but failed to include it with her
original complaint due to inadvertence and oversight.
It further concluded that to dismiss the action would
elevate form over substance and violate the public pol-
icy of permitting a trial on the merits. On September
21, 2012, the court denied the motions to reargue and
for reconsideration filed by the Center and Wang.
Pretrial proceedings ensued over the course of sev-
eral years. During the time period between the denial
of the 2012 motions and the second motion for reconsid-
eration filed in 2018, the law concerning § 52-190a devel-
oped in our appellate courts. See, e.g., Santorso v. Bris-
tol Hospital, 308 Conn. 338, 63 A.3d 940 (2013) (released
on April 23, 2013); Torres v. Carrese, supra, 149 Conn.
App. 596 (released on April 22, 2014); Gonzalez v. Lang-
don, supra, 161 Conn. App. 497 (released on December
1, 2015); Ugalde v. Saint Mary’s Hospital, Inc., supra,182 Conn. App. 1 (released on May 15, 2018); Peters v.
United Community & Family Services, Inc., supra,182 Conn. App. 688 (released on June 19, 2018). Signifi-
cantly, our jurisprudence shifted from consideration of
whether the opinion letter had existed at the time the
plaintiff commenced the malpractice action to a focus
on whether the elected procedure to remedy a defective
opinion letter had begun prior to the expiration of the
statute of limitations.
The trial occurred in November and December, 2017.
On December 21, 2017, the jury returned a verdict for
the plaintiff. Wang, the Center, and WABBO each filed
various postverdict motions, seeking, inter alia, to set
aside the verdict, judgment notwithstanding the verdict,
and for remittitur. On June 26, 2018, Wang filed a motion
for permission to file a second motion to reconsider
the 2012 denial of the motion to dismiss. In that motion,
Wang directed the trial court to our decision in Peters
v. United Community & Family Services, Inc., supra,182 Conn. App. 688, and described that opinion as
legally controlling and supporting the dismissal of the
medical malpractice action. The court heard oral argu-
ment on September 6, 2018.28 During this proceeding,
Wang’s counsel argued that any remedy to correct a
defect in the opinion letter must have been commenced
within the applicable statute of limitations, pursuant to
our then relatively recently released decision in Peters.
On January 3, 2019, the court issued its memorandum
of decision addressing the various postverdict motions
that had been filed. At the outset of its analysis relating
to the motion for reconsideration of the 2012 motions
to dismiss, the court recognized that, at the time of the
2012 decision denying the motions to dismiss, ‘‘the sole
relevant appellate authority was Votre v. County Obstet-
rics & Gynecology Group, P.C., [supra, 113 Conn. App.
585], which contained language—disputed as to
whether it was dictum or controlling—relating to the
propriety of a belated filing of an already-existing opin-
ion letter, and it was the significance of that language
that was subject to disagreement by trial courts.’’ The
court noted that in Peters v. United Community &
Family Services, Inc., supra, 182 Conn. App. 688, our
court ‘‘held that corrective action relating to an opinion
letter from a similar health care provider had to be
undertaken within the applicable statute of limita-
tions.’’ (Emphasis added.) Thus, the court had to con-
sider whether our 2018 opinion in Peters necessitated
a contrary decision from the 2012 denial of the motions
to dismiss.
The court began its consideration of this statute of
limitations issue by noting that the request to amend
the complaint had been filed ‘‘substantially’’ more than
two years after the date of the plaintiff’s injury and that
there had been no claim that the plaintiff took any
ameliorative action prior to the expiration of the statute
of limitations. It then identified two related concerns
regarding the timing and nature of the 2018 requests
for reconsideration of the 2012 denial of the motions to
dismiss. First, it stated that a motion for reconsideration
generally is filed not years after the underlying decision,
but rather within days. Thus, as a general matter, only
a minimal chance exists that controlling precedent
materially will alter the relevant legal landscape. Sec-
ond, the court posited whether the motions to dismiss
could be revisited six years after their initial denial and
after an intervening trial on the merits, particularly at
the trial court level.29 The court granted the motions
for reconsideration ‘‘to reconcile, or determine the
interplay between, two Appellate Court decisions,
Peters and Votre.’’
With respect to the substantive merits regarding
whether the motions to dismiss should be granted,
albeit belatedly, the court recognized that, subsequent
to the 2012 memorandum of decision, which had
focused on whether a valid opinion letter existed at the
time the medical malpractice action had been com-
menced, our appellate courts determined that a plaintiff
must take corrective action with respect to a defective
opinion letter within the applicable statute of limita-
tions. Nevertheless, the court ultimately concluded that
the prior denials of the motions to dismiss should stand
for several reasons.
First, the court noted that both Peters v. United Com-
munity & Family Services, Inc., supra, 182 Conn. App.
688, and Gonzales v. Langdon, supra, 161 Conn. App.
497, concerned the correction of attached, but defective
opinion letters, whereas the plaintiff in the present case
had failed to attach the opinion letter to her complaint.30
Second, it observed that Gonzales v. Langdon, supra,
497, and Torres v. Carrese, supra, 149 Conn. App. 596,
mentioned the statute of limitations as the benchmark
for when correction of a defective opinion letter must
occur and that both of these cases had been issued
prior to the commencement of the present trial. The
court noted that neither the goal of judicial economy
nor the purpose of § 52-190a would be advanced if it
nullified the trial and the jury’s verdict based on the
statute of limitations argument advanced by Wang and
the Center. Ultimately, the court concluded: ‘‘It would
be inequitable and highly wasteful to reverse the earlier
decisions in such a belated fashion. Subject matter juris-
dictional issues may be raised at any time, but other
jurisdictional issues are subject to waiver—and inferen-
tially subject to other equitable considerations.’’
Given our decision in Peters v. United Community &
Family Services, Inc., supra, 182 Conn. App. 706, it
cannot be disputed that regardless of the method
employed to cure a defect in an opinion letter filed
pursuant to § 52-190a, such correction must be initiated
prior to the expiration of the statute of limitations. Wang
and the Center argue that the Peters holding applies in
the present case and the denials of the 2012 motions
to dismiss must be reversed. The plaintiff counters that
Wang and the Center waived this statute of limitations
argument, the purpose of § 52-190a was satisfied as a
result of the jury’s verdict, and the amendment to the
medical malpractice complaint was filed timely within
the three year statute of repose contained in § 52-584,
and, therefore, the judgment of the court must stand.31
We first consider the plaintiff’s argument that Wang
and the Center waived their statute of limitations claim
as it related to § 52-190a and Peters v. United Commu-
nity & Family Services, Inc., supra, 182 Conn. App.
688. In her brief, the plaintiff notes that, as a general
matter, our courts have ‘‘made it clear that we will
not permit parties to anticipate a favorable decision,
reserving a right to impeach it or set it aside if it happens
to be against them, for a cause which was well known
to them before or during the trial.’’ (Internal quotation
marks omitted.) C.R. Klewin Northeast, LLC v. Bridge-
port, 282 Conn. 54, 87, 919 A.2d 1002 (2007). She then
contends that the statute of limitations argument
related to § 52-190a could have been made in the 2012
motions to dismiss; see, e.g., Bennett v. New Milford
Hospital, supra, 300 Conn. 30–31; or raised in 2014 and
2015, or when this court released its decision in Torres
v. Carrese, supra, 149 Conn. App. 596, and Gonzales v.
Langdon, supra, 161 Conn. App. 497, respectively. We
are not persuaded that Wang and the Center waived
their statute of limitations argument.
A discussion of Torres v. Carrese, supra, 149 Conn.
App. 596, is instructive. In that case, the plaintiff com-
menced a medical malpractice action against her obste-
tricians in September, 2006. Id., 601–602. She attached
to her complaint an opinion letter from a board certified
urologist. Id., 603. In November, 2006, the obstetricians
moved to dismiss the complaint on the ground that the
opinion letter had not been written by a similar health
care provider. Id., 604. The trial court ultimately denied
the motions to dismiss, reasoning that an insufficient
letter, as opposed to the absence of such a letter, was
not a sufficient ground for dismissal. Id., 605.
‘‘On January 19, 2011, the case was called for trial.
On January 31, 2011, and February 10, 2011, after our
Supreme Court released its opinion in Bennett v. New
Milford Hospital, Inc., [supra, 300 Conn. 21] (holding
in cases against specialists, author of written opinion
letter pursuant to § 52-190a (a) must be similar health
care provider as defined in § 52-184c (c), regardless of
author’s potential qualifications to testify at trial, and
insufficient written opinion letter, while not impairing
subject matter jurisdiction, requires dismissal of action
under § 52-190a (c)), the [obstetricians] each filed new
motions to dismiss the plaintiff’s complaint. On March
7, 2011, the court granted the [obstetricians’] motions
to dismiss the plaintiff’s complaint because the plaintiff
failed to attach an opinion letter from a similar health
care provider to the complaint as required by § 52-190a.’’
(Footnotes omitted; internal quotation marks omitted.)
Torres v. Carrese, supra, 149 Conn. App. 605–606.
On appeal, the plaintiff argued, inter alia, that the
obstetricians’ 2011 motions to dismiss had been filed
outside of the time period set forth by Practice Book
§ 10-30 and the trial court erred by considering and
granting them. Id., 607. The obstetricians countered
that their ‘‘2011 motions to dismiss were functionally
motions to reargue their timely filed 2006 motions to
dismiss the plaintiff’s complaint.’’ Id., 612. Due to the
unique circumstances of that case, we agreed with the
obstetricians. Id. First, we concluded that, despite their
title, the 2011 motions ‘‘essentially sought to reverse or
to modify the denials of their earlier 2006 motions to
dismiss’’ and therefore the trial court properly had con-
cluded that, in reality, these were motions to reargue.
Id., 614.
Next, we determined that the court had not abused its
discretion by considering the 2011 motions to reargue,
despite the twenty day time period set forth in Practice
Book § 11-12 (a). Id., 614–15. We explained: ‘‘[T]he
[obstetricians], in filing their 2011 motions to dismiss,
sought reconsideration because of a newly articulated
controlling principle of law set forth by our Supreme
Court in Bennett v. New Milford Hospital, Inc., supra,300 Conn. 1. . . . See Opoku v. Grant, 63 Conn. App.
686, 692–93, 778 A.2d 981 (2001) ([T]he purpose of a
reargument is . . . to demonstrate to the court that
there is some decision or some principle of law which
would have a controlling effect, and which has been
overlooked, or that there has been a misapprehension
of facts. . . . [A] motion to reargue . . . is not to be
used as an opportunity to have a second bite of the
apple or to present additional cases or briefs which
could have been presented at the time of the original
argument. . . .). Thus, it was reasonable for the [obste-
tricians] to file what amounts to a late motion to rear-
gue before a second judge in light of the Supreme
Court’s decision in Bennett, issued almost four years
after [the trial court] issued [its] ruling on the [obstetri-
cians’] 2006 motions to dismiss.’’ (Emphasis added;
internal quotation marks omitted.) Torres v. Carrese,
supra, 149 Conn. App. 616–17.
We further noted the particular circumstances of Tor-
res with respect the trial court’s consideration of the
obstetricians’ motions to reconsider after an extended
time period. ‘‘The trial court correctly determined that
Bennett [v. New Milford Hospital, Inc., supra, 300 Conn.
1] was to have retroactive effect. See, e.g., Marone v.
Waterbury, 244 Conn. 1, 10, 707 A.2d 725 (1998) (‘judg-
ments that are not by their terms limited to prospective
application are presumed to apply retroactively’). In
light of Bennett, the court was faced with a situation
in which any judgment rendered on the professional
negligence issues in favor of the plaintiff would likely
be reversed in any event. By dealing with the issue, the
court avoided the time and expense, to the state and
to the parties, of a perhaps pointless trial.’’ Torres v.
Carrese, supra, 149 Conn. App. 617 n.23.
Similar circumstances exist in the present case that
warrant and justify consideration of the argument
regarding the statute of limitations and § 52-190a, even
though it was raised approximately six years after the
initial 2012 motions to dismiss. First, Wang and the
Center, in their 2012 motions to dismiss, claimed that
the plaintiff had failed to comply with the requirements
of § 52-190a due to her counsel’s failure to include an
opinion letter, raising a challenge pertaining to personal
jurisdiction. Second, during the pendency of the pro-
ceedings, new appellate authority was released in 2018,
namely, Peters v. United Community & Family Ser-
vices, Inc., supra, 182 Conn. App. 688, and that opinion
presumptively applied retroactively. The decision in
Peters, which related to the claim set forth in the 2012
motions to dismiss, expressly held that efforts to rem-
edy a defective opinion letter must be initiated prior to
the running of the statute of limitations.32 Id., 706. Wang
and the Center may have raised this argument during
the pretrial proceedings, but we are not aware of, nor
has the plaintiff directed us to any controlling case,
statute, or rule of practice that would require them to
do so or face the consequences of waiver. For these
reasons, we are not persuaded by the plaintiff’s con-
tention that Wang and the Center waived the argument
relating to the statute of limitations and § 52-190a.
Next, we consider the plaintiff’s contention that, as
a result of the jury’s verdict, the purpose of § 52-190a,
preventing frivolous medical malpractice actions, was
served in the present case, and, therefore, to dismiss
the medical malpractice action at this juncture would
elevate form over substance to an unreasonable degree.
We are not persuaded.
Indisputably, the purpose of § 52-190a is to prevent
frivolous medical malpractice actions, and the require-
ment of a letter from a similar health care provider ‘‘was
intended to address the problem that some attorneys,
either intentionally or innocently, were misrepresenting
in the certificate of good faith the information that they
obtained from the experts.’’ (Internal quotation marks
omitted.) Shortell v. Cavanagh, 300 Conn. 383, 388, 15
A.3d 1042 (2011); see also Plante v. Charlotte Hun-
gerford Hospital, supra, 300 Conn. 55; Bennett v. New
Milford Hospital, Inc., supra, 300 Conn. 12; Barrett v.
Montesano, 269 Conn. 787, 796, 849 A.2d 839 (2004);
Votre v. County Obstetrics & Gynecology Group, P.C.,
supra, 113 Conn. App. 584.
The plaintiff argues that, because the jury found in her
favor with respect to the medical malpractice action, it
could not constitute a frivolous action. We acknowledge
the pragmatic nature of this contention. Our legislature,
however, specifically authorized the dismissal of a med-
ical malpractice action for the failure to attach an opin-
ion letter to the complaint. General Statutes § 52-190a
(c); Rios v. CCMC Corp., 106 Conn. App. 810, 822, 943
A.2d 544 (2008); see also Santorso v. Bristol Hospital,
supra, 308 Conn. 349 (noting mandatory dismissal
where plaintiff fails to comply with § 52-190a (c)); Mor-
gan v. Hartford Hospital, supra, 301 Conn. 398(Supreme Court recognized that opinion letter was akin
to pleading that must be attached to complaint in order
to commence medical malpractice action); Bennett v.
New Milford Hospital, Inc., supra, 300 Conn. 6 (trial
court was required to dismiss action as consequence
of failure to provide opinion letter); Wood v. Rutherford,
187 Conn. App. 61, 73, 201 A.3d 1025 (2019) (failure to
attach proper written opinion letter mandates dismissal
of action); Ugalde v. Saint Mary’s Hospital, Inc., supra,182 Conn. App. 12 (if amendment to legally insufficient
opinion letter is not sought prior to expiration of statute
of limitations, dismissal is required by § 52-190a); Doyle
v. Aspen Dental of Southern CT, PC, supra, 179 Conn.
App. 492 (dismissal is mandatory remedy when plaintiff
fails to file opinion letter in compliance with § 52-190a).
As we noted in Votre v. County Obstetrics & Gynecology
Group, P.C., supra, 113 Conn. App. 584–85: ‘‘We are
bound to uphold the laws the legislature adopts. . . .
Legislative power under article third [of our state consti-
tution] reposes in the Senate and the House of Repre-
sentatives, not in the Judiciary.’’
The argument advanced by the plaintiff would effec-
tively deprive medical providers of the ability to appeal
from an adverse ruling with respect to the existence
and sufficiency of an opinion letter following a trial on
the merits. Although we understand the practical aspect
of the plaintiff’s argument with respect to judicial econ-
omy and the fact that these proceedings occurred over
several years and culminated in a five week trial, we
decline to foreclose the ability of litigants to seek appel-
late review with respect to § 52-190a. Consistent with
established precedent, an appellate determination that
the trial court improperly concluded that personal juris-
diction existed has resulted in the dismissal or vacatur
of the subsequent proceedings before the trial court.
See Green v. Simmons, 100 Conn. App. 600, 606–609,
919 A.2d 482 (2007) (judgment in favor of plaintiff
reversed and remanded with direction to dismiss action
where Appellate Court determined plaintiff failed to
establish that requirements of long arm statute had been
satisfied and therefore court had improperly exercised
personal jurisdiction over defendants); see, e.g., Cogs-
well v. American Transit Ins. Co., 282 Conn. 505, 535,
923 A.2d 638 (2007); Narayan v. Narayan, 122 Conn.
App. 206, 216, 3 A.3d 75 (2010), rev’d on other grounds,
305 Conn. 394, 46 A.3d 90 (2012). For these reasons,
we are not persuaded by the plaintiff’s argument that
a jury verdict in a medical malpractice action would
insulate a defect in the required opinion letter from
appellate review.
Finally, the plaintiff argues, for the first time on
appeal and as an alternative ground for affirming the
verdict, that, pursuant to the repose section of § 52-
584, she timely amended her complaint to include the
opinion letter before the expiration of the three year
statute of repose.33 Under these facts and circum-
stances, we conclude that the two year statute of limita-
tions applied in the present case.
We begin with language of the applicable statute of
limitations for medical malpractice actions. Section 52-
584 provides in relevant part: ‘‘No action to recover
damages for injury to the person . . . caused by negli-
gence, or by reckless or wanton misconduct, or by
malpractice of a physician, surgeon, dentist, podiatrist,
chiropractor, advanced practice registered nurse, hos-
pital or sanatorium, 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 . . . .’’
(Emphasis added.)
In Wojtkiewicz v. Middlesex Hospital, 141 Conn. App.
282, 60 A.3d 1028, cert. denied, 308 Conn. 949, 67 A.3d
291 (2013), we distinguished the different time periods
identified in § 52-584. ‘‘[T]his statute imposes two spe-
cific time requirements on plaintiffs. The first require-
ment, referred to as the discovery portion . . . requires
a plaintiff to bring an action 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 . . . . The second provides that in no event
shall a plaintiff bring an action more than three years
from the date of the act or omission complained of.
. . . The three year period specifies the time beyond
which an action under § 52-584 is absolutely barred,
and the three year period is, therefore, a statute of
repose.’’ (Emphasis in original; internal quotation marks
omitted.) Id., 286–87; Rosato v. Mascardo, 82 Conn. App.
396, 401–402, 844 A.2d 893 (2004); see also Neuhaus v.
DeCholnoky, 280 Conn. 190, 200–201, 905 A.2d 1135(2006).
In Lagassey v. State, 268 Conn. 723, 846 A.2d 831(2004), our Supreme Court stated: ‘‘The limitation
period for actions in negligence begins to run on the
date when the injury is first discovered or in the exercise
of reasonable care should have been discovered. . . .
In this regard, the term injury is synonymous with legal
injury or actionable harm. Actionable harm occurs
when the plaintiff discovers, or in the exercise of rea-
sonable care, should have discovered the essential ele-
ments of a cause of action. . . . A breach of duty by
the defendant and a causal connection between the
defendant’s breach of duty and the resulting harm to
the plaintiff are essential elements of a cause of action
in negligence; they are therefore necessary ingredients
for actionable harm. . . . Furthermore, actionable
harm may occur when the plaintiff has knowledge of
facts that would put a reasonable person on notice of
the nature and extent of an injury, and that the injury
was caused by the negligent conduct of another. . . .
In this regard, the harm complained of need not have
reached its fullest manifestation in order for the limita-
tion period to begin to run; a party need only have
suffered some form of actionable harm.’’ (Citations
omitted; internal quotation marks omitted.) Id., 748–49;
see also Barrett v. Montesano, 269 Conn. 787, 793, 849
A.2d 839 (2004); Parnoff v. Aquarion Water Co. of Con-
necticut, 188 Conn. App. 153, 168, 204 A.3d 717 (2019).
The focus, however, is on the plaintiff’s knowledge of
the facts, rather than the discovery of applicable legal
theories. Catz v. Rubenstein, 201 Conn. 39, 47, 513 A.2d
98 (1986).
As a general matter, the determination of whether a
plaintiff, in the exercise of reasonable care, should have
discovered actionable harm for purposes of § 52-584 is
for the trier of fact. Lagassey v. State, supra, 268 Conn.
749. Under some circumstances, however, the start of
the two year statute of limitations in a medical malprac-
tice action may be decided as a matter of law. For
example, in Burns v. Hartford Hospital, 192 Conn. 451,
472 A.2d 1257 (1984), our Supreme Court considered
whether summary judgment properly had been ren-
dered in favor of the defendant physician and hospital.
In that case, the two year old plaintiff had been treated
following an automobile accident. Id., 452. This medical
treatment included the insertion of intravenous tubes
into the plaintiff’s legs. Id. Approximately one week
later, the child’s left leg became swollen and red. The
physician initially diagnosed the condition as a hema-
toma, but after further procedures and testing, discov-
ered an infection, likely from contaminated intravenous
tubes. Id., 452–53.
The plaintiff filed an action more than two years from
the date on which the infection in his leg was first
discovered. Id., 453. The physician and the hospital
moved for summary judgment based on the statute of
limitations. Id., 453–54. The trial court granted the
motions for summary judgment. Id., 454. Our Supreme
Court held that that the two year statute of limitations
commenced on the date the child’s mother was aware
he had an infection and not a hematoma. Id., 459–60.
‘‘Because the plaintiff did not bring suit within two
years of discovering the injury, the trial court correctly
ruled that the action was barred by the statute of limita-
tions.’’ Id., 460.
Although the procedural posture of Burns v. Hart-
ford Hospital, supra, 192 Conn. 451, differs from the
present case, its reasoning guides us to reject the plain-
tiff’s reliance on the repose section of § 52-584. In the
present case, the allegations in the complaint conclu-
sively establish that the plaintiff had knowledge, on the
date of the incident, of the nature and extent of the
injuries to her foot. The knowledge of these facts would
put a reasonable person on notice that those injuries
were the result of Wang’s alleged negligent conduct.
To conclude otherwise would eviscerate the policies
underlying the statute of limitations. See Lindsay v.
Pierre, 90 Conn. App. 696, 701, 879 A.2d 482 (2005).
For these reasons, we reject the plaintiff’s reliance on
the repose section of § 52-584 and her claim that the
efforts to cure the opinion letter were timely.
In sum, the plaintiff failed to attach an opinion letter
as required by § 52-190a to her complaint. None of the
arguments advanced by the plaintiff disputes this fact.
Wang and the Center demonstrated that her efforts
to cure this defect were not commenced within the
statutory limitation period. We are not persuaded by
the plaintiff’s additional arguments regarding § 52-190a.
We conclude that the court did not have personal juris-
diction as to Wang and the Center and that the medical
malpractice action should have been dismissed.
II
AC 42505
In AC 42505, WABBO claims that the court improp-
erly denied its motions for a directed verdict and to set
aside the verdict because the plaintiff did not establish
the element of causation. Specifically, WABBO argues
that it was entitled to judgment in the product liability
action because the plaintiff failed to prove how the heat
lamp came into contact with her foot. The plaintiff
responds that she satisfied her burden with respect
to the element of causation, including by means not
challenged by WABBO on appeal. We agree with the
plaintiff.
In her third amended third-party complaint (operative
third-party complaint) against WABBO,34 the plaintiff
alleged a violation of the Connecticut Product Liability
Act, General Statutes § 52-572m et seq.35 In this pleading,
the plaintiff alleged that WABBO was a foreign corpora-
tion authorized to do business in Connecticut and that
it sold the heat lamp to Wang for use in Connecticut.
She further alleged that WABBO placed the heat lamp
into the stream of commerce with the expectation that
it would reach consumers without a substantial change
in condition. On April 22, 2010, Wang used the heat
lamp, which had not been substantially changed, during
the plaintiff’s acupuncture treatment. The plaintiff
claimed that the stabilizing hardware and hydraulic
mechanisms for the head and arm of the heat lamp
were deficient and resulted in the heating element com-
ing into contact with her foot and injuring her.
The plaintiff alleged that WABBO was negligent and
strictly liable in distributing, selling, and/or otherwise
placing the heat lamp into the stream of commerce by
failing (1) to affix a warning on the heat lamp regarding
the propensity of its arm to lower, (2) to include any
locking devices on the hydraulic mechanisms and joints
of the heat lamp, (3) to include a safety guard over the
face of the heating element, and/or (4) to provide a user
manual or instructions with the heat lamp or on its
website.36 She further alleged that ‘‘[o]ne or more of
these defects and acts of negligence described herein
was a substantial factor in causing the injuries to the
plaintiff.’’ (Emphasis added.)
Wang testified that the heat lamp he had purchased
from WABBO did not come with a manual or warnings
about the propensity of the head of the heat lamp to
fall down. He also stated that the absence of a locking
mechanism, a safety guard, a manual, or warnings made
the heat lamp unreasonably dangerous.
Sami Kuang Wu, the owner of WABBO, testified that
Wang had purchased the heat lamp in March, 2008. She
also stated that the heat lamp was shipped without
locking devices on the joints of its arms or a ‘‘safety
shield’’ between the heating element plate and the
patient. Wu further testified that the spring pistons that
provided the upward force needed to hold the heat
lamp in place would lose their function as the device
was used and eventually would no longer maintain the
placement of the heat lamp. She explained that as the
spring pistons became worn, the heat lamp had a ten-
dency to lower inadvertently and spontaneously on its
own, and that WABBO was aware of this tendency in
2008. Wu also indicated that Wang should have received
a manual and that a warning sticker should have been
affixed to the heat lamp.
The plaintiff presented testimony from Victor A.
Popp, a registered professional engineer. Popp testified
about various locking mechanisms that could have been
used to prevent the inadvertent downward movement
of the head of the heat lamp, where the heating element
was located. He indicated that the use of a safety guard
would have prevented the heating element from coming
into contact with the skin of a patient if the arm lowered.
He opined that in 2008, both a locking mechanism and
a safety guard would have been economically and tech-
nologically feasible.
The plaintiff’s counsel asked a lengthy hypothetical
question in which Popp was to assume as true various
facts regarding the heat lamp and the April 22, 2010
incident. Popp concluded that the defective condition
of the heat lamp was a substantial factor contributing
to the plaintiff’s injuries and opined, to a reasonable
degree of engineering certainty, that the heat lamp was
in a defective condition in March, 2008, when it was sold
without a locking mechanism for the arm and without
a safety guard over the heating element and that the
inclusion of these devices on the heat lamp would have
prevented the plaintiff from being burned.
The parties presented their closing arguments on
December 19, 2017. The plaintiff’s counsel argued that
there was evidence that the heat lamp was unreasonably
dangerous due to (1) the propensity of the arm to lower,
(2) the lack of a locking mechanism on the arm, (3)
the lack of a safety guard over the heating element, (4)
the lack of a warning sticker on the heat lamp, and/or
(5) the lack of a user’s manual. The plaintiff’s counsel
specifically argued that if there had been a safety guard
over the heating element, then the plaintiff would not
have been injured. During his rebuttal argument, coun-
sel again emphasized that the lack of a safety guard
caused the plaintiff’s injuries.
The court charged the jury on December 19 and 20,
2017. At the outset, the court instructed the jury that
the plaintiff had asserted a claim against WABBO that
the heat lamp used by Wang was unreasonably danger-
ous and defective. The court stated: ‘‘The plaintiff’s
specific allegations of defects and inadequate preventa-
tive measures include claims that WABBO placed the
lamp into commerce, namely, sold it to . . . Wang,
despite the absence of any warning affixed to the lamp
concerning the heat plate’s potential to cause harm and/
or injury; the negligently-designed and/or manufactured
condition of the lamp due to the failure to include ade-
quate locking devices to prevent unintended lowering;
the failure to provide a user manual or instructions for
use with the lamp or on its website; and/or the failure
to place a heating shield of some sort in front of the
heating plate.’’ (Emphasis added.)
The court then instructed the jury as to the elements
of a claim under the Connecticut Product Liability Act.
It informed the jury that the plaintiff only needed to
prove one such deficiency or hazard in order to satisfy
the necessary elements for this cause of action. With
respect to the element of causation, the court defined
‘‘cause in fact’’ and proximate cause.
WABBO challenged the absence of proof regarding
the causation element during the evidentiary phase of
the trial and in a postverdict motion. On December 13,
2017, WABBO moved for a directed verdict, claiming
that the plaintiff failed ‘‘to remove her claims that her
injuries were caused by a defect in [WABBO’s] product
from the realm of speculation and conjecture.’’ The
court deferred its ruling on WABBO’s motion pursuant
to Practice Book § 16-37.37
On December 29, 2017, WABBO filed a motion to set
aside the jury’s verdict and incorporated the arguments
it previously had set forth in its motion for a directed
verdict. Specifically, WABBO again claimed that ‘‘the
evidence presented by the plaintiff has failed to remove
the issue of causation of her injuries from the realm of
speculation and conjecture and the plaintiff has failed
to sustain her burden of proof as to her claims of the
Connecticut [Product] Liability Act . . . .’’
In its January 3, 2019 memorandum of decision, the
trial court addressed WABBO’s causation arguments.
The court noted that the plaintiff ‘‘need not prevail on
more than one specification of negligence or product
defect, in order to sustain the verdict.’’ The court
observed that ‘‘the claimed lack of any specific mecha-
nism for the lamp head to come into contact with the
plaintiff’s foot would not undermine the causative link
between failing to protect against a hot surface coming
into contact with the skin of a user or a user’s client/
patient. . . . [H]ow the lamp came into contact with
the plaintiff’s foot is not the issue when there is a
claim that there should have been a protective feature
or device which would have prevented an injury how-
ever the lamp might have come into contact with an
individual such as the plaintiff.’’ (Emphasis added.)
Continuing its analysis, the court stated that Wu had
acknowledged that, in 2008, it was technologically feasi-
ble and would have involved a minimal cost to add
protection over the face of the heat lamp. Wu also had
indicated that locking mechanisms for the movable arm
of the heat lamp were in use in similar products in 2008.
The court found that ‘‘WABBO, as distributor of the
product, was aware of the propensity for such lamps,
over time to lose tension such that the lamp head could
spontaneously lower. (A spring piston mechanism holds
the arm and lamp head in position, but over time and
with usage, the spring loses some of its ability to main-
tain the position of the lamp as originally set.) As a
progression of loss of ability to hold its position, there
would be an intermediate loss of tension, whereby some
(decreasing over time) disturbance would be sufficient
to cause a lowering, which technically would not be
‘spontaneous.’ ’’ (Footnote omitted.)
The court then determined that there was ‘‘ample’’
evidence that there was no guard or safety mechanism
to protect against contact with the head of the heat
lamp. The court concluded: ‘‘With respect to the product
liability claim . . . the jury was presented with suffi-
cient evidence (lay and expert) that, combined with its
own common sense and experience, was sufficient to
support a finding that the [heat] lamp was defective,
and that the defect caused the injuries to the plaintiff.’’
We begin by setting forth our standard of review and
the relevant legal principles. Initially, we note that a
‘‘defendant must overcome a high threshold to prevail
on either a motion for a directed verdict or a motion
to set aside a judgment.’’ (Internal quotation marks
omitted.) Rawls v. Progressive Northern Ins. Co., 310
Conn. 768, 775, 83 A.3d 576 (2014). ‘‘A trial court should
direct a verdict only when a jury could not reasonably
and legally have reached any other conclusion. . . . In
reviewing the trial court’s decision [to deny the defen-
dant’s motion for a directed verdict] we must consider
the evidence in the light most favorable to the plaintiff.
. . . Although it is the jury’s right to draw logical deduc-
tions and make reasonable inferences from the facts
proven . . . it may not resort to mere conjecture and
speculation. . . . A directed verdict is justified if . . .
the evidence is so weak that it would be proper for the
court to set aside a verdict rendered for the other party.’’
(Internal quotation marks omitted.) Demond v. Project
Service, LLC, 331 Conn. 816, 833, 208 A.3d 626 (2019);
see also Bagley v. Adel Wiggins Group, 327 Conn. 89,
102, 171 A.3d 432 (2017). The question of whether the
evidence presented by the plaintiff was sufficient to
withstand a motion for a directed verdict is a question
of law, subject to plenary review by this court. Pellet
v. Keller Williams Realty Corp., 177 Conn. App. 42,
50, 172 A.3d 283 (2017); see also Theodore v. Lifeline
Systems Co., 173 Conn. App. 291, 307, 163 A.3d 654(2017).38
Regarding a motion to set aside the verdict, the stan-
dard for appellate review is the abuse of discretion
standard. ‘‘In determining whether there has been an
abuse of discretion, every reasonable presumption
should be given in favor of the correctness of the court’s
ruling. . . . Reversal is required only [when] an abuse
of discretion is manifest or [when] injustice appears to
have been done. . . . [T]he role of the trial court on a
motion to set aside the jury’s verdict is not to sit as [an
added] juror . . . but, rather, to decide whether, view-
ing the evidence in the light most favorable to the pre-
vailing party, the jury could reasonably have reached
the verdict that it did. . . . In reviewing the action of
the trial court in denying [or granting a motion] . . .
to set aside the verdict, our primary concern is to deter-
mine whether the court abused its discretion . . . .’’
(Internal quotation marks omitted.) Rendahl v. Peluso,
173 Conn. App. 66, 94–95, 162 A.3d 1 (2017); see also
Viking Construction, Inc. v. TMP Construction Group,
LLC, Conn. , , A.3d (2021).
We are mindful that ‘‘[t]his court has emphasized two
additional points with respect to motions to set aside
a verdict that are equally applicable to motions for a
directed verdict: First, the plaintiff in a civil matter
is not required to prove his case beyond a reasonable
doubt; a mere preponderance of the evidence is suffi-
cient. Second, the well established standards compel-
ling great deference to the historical function of the
jury find their roots in the constitutional right to a
trial by jury. . . . This standard also requires the trial
court to consider the evidence, including reasonable
inferences, in the light most favorable to the plaintiff.’’
(Citation omitted; emphasis added; internal quotation
marks omitted.) Pellet v. Keller Williams Realty Corp.,
supra, 177 Conn. App. 48–49.
The elements of a product liability action are well
established. ‘‘In a products liability action, the plaintiff
must plead and prove that the product was defective
and that the defect was the proximate cause of the
plaintiff’s injuries. . . . A product is defective when it
is unreasonably dangerous to the consumer or user.
. . . The established rule in Connecticut is that [a]
product may be defective because a manufacturer or
seller failed to warn of the product’s unreasonably dan-
gerous propensities. . . . Under such circumstances,
the failure to warn, by itself, constitutes a defect.’’ (Cita-
tions omitted; internal quotation marks omitted.) Bat-
tistoni v. Weatherking Products, Inc., 41 Conn. App.
555, 562, 676 A.2d 890 (1996); see also Haesche v. Kis-
sner, 229 Conn. 213, 218, 640 A.2d 89 (1994).
WABBO has challenged only the causation element
in its appeal. We note that ‘‘[p]roof that a defect in the
product caused the injury in controversy is a prerequi-
site to recovery for product-caused injury in every
products liability case, whether the action is grounded
on negligence, breach of warranty, strict liability in tort
. . . or a combination of such theories. . . . Theodore
v. Lifeline Systems Co., supra, 173 Conn. App. 308.
When the causation issue involved goes beyond the
field of ordinary knowledge and experience of judges
and jurors, expert testimony is required.’’ (Emphasis
added; internal quotation marks omitted.) Ferrari v.
Johnson & Johnson, Inc., 190 Conn. App. 152, 162, 210
A.3d 115 (2019); see also Sharp v. Wyatt, Inc., 31 Conn.
App. 824, 833, 627 A.2d 1347 (1993) (plaintiff must plead
and prove that defendant’s product was defective and
proximately caused injuries), aff’d, 230 Conn. 12, 644
A.2d 871 (1994); Wierzbicki v. W.W. Grainger, Inc., 20
Conn. App. 332, 334, 566 A.2d 1369 (1989) (same).
Our courts have applied the following test for causa-
tion in cases involving a claim under our Product Liabil-
ity Act. ‘‘The causation inquiry has two facets: (1) cause-
in-fact; and (2) legal or proximate cause. These two
components ask the following questions respectively:
(1) whether the defendant’s conduct was the cause-in-
fact of the injury; and, if so; (2) whether as a matter
of social policy the defendant should be held legally
responsible for the injury. Proof of proximate cause
requires proof of both cause-in-fact and legal cause.
. . . 63 Am. Jur. 2d 55–58, Products Liability § 21
(2010). Cause-in-fact, also referred to as actual cause,
asks whether there was a sufficiently close, actual,
causal connection between the defendant’s conduct and
the actual damage suffered by the plaintiff. It requires
that there be a direct causal connection between the
negligence or product defect and the injury. That is, it
refers to the physical connection between an act and an
injury. . . . 63 Am. Jur. 2d, supra, § 24, p. 60.’’ (Internal
quotation marks omitted.) Theodore v. Lifeline Systems
Co., supra, 173 Conn. App. 308–309. ‘‘[T]he test of proxi-
mate cause is whether the defendant’s conduct is a
substantial factor in bringing about the [victim’s]
injuries.’’ (Emphasis added; internal quotation marks
omitted.) DeOliveira v. PMG Land Associates, L.P., 105
Conn. App. 369, 378, 939 A.2d 2 (2008); see also Barry
v. Quality Steel Products, Inc., 263 Conn. 424, 433, 820
A.2d 258 (2003) (test for proximate cause is whether
defendant’s conduct is substantial factor in bringing
about plaintiff’s injuries); Wagner v. Clark Equipment
Co., 243 Conn. 168, 178, 700 A.2d 38 (1997) (same).
A thorough review of the pleadings, evidence, closing
arguments, and jury charge establish that the plaintiff
alleged and presented evidence of various means in
which WABBO’s defective product, the heat lamp,
caused her injuries. In addition to the lowering of the
arm holding the heat lamp, the plaintiff maintained that
the lack of (1) a locking mechanism, (2) a safety guard,
(3) a user manual, or (4) a warning regarding the pro-
pensity of the arm to lower each constituted a substan-
tial factor, and thus proximately caused her injuries on
April 22, 2010. In its appellate brief, WABBO focuses
primarily on the question of how the heat lamp lowered
onto the plaintiff’s foot and whether there was evidence
that this lowering occurred spontaneously or due to
some outside force. WABBO summarily contends that
the absence of a locking mechanism and the guard went
to the issue of a defect and not causation.
Contrary to the bald assertion made by WABBO, we
conclude, on the basis of our comprehensive review of
the pleadings and evidence in this case, that the plaintiff
presented to the jury alternative methods of causation
and did not limit consideration of the causation element
to how or why the arm of the heat lamp lowered. There
was sufficient evidence in the court record for the jury
to find that the lack of a safety guard over the heating
element was a substantial factor, and thus a proximate
cause, of the plaintiff’s injuries to her left foot. WABBO
did not submit jury interrogatories to specify which of
the alternative bases of causation the jury used to reach
its verdict.
In the present case, due to the lack of jury interrogato-
ries, the only manner in which WABBO can prevail
would be to establish that the evidence was insufficient
to support any of the specifications of causation pur-
sued by the plaintiff. See Seven Oaks Enterprises, L.P.
v. Devito, 185 Conn. App. 534, 558–59, 198 A.3d 88, cert.
denied, 330 Conn. 953, 197 A.3d 893 (2018); Jackson v.
H.N.S. Management Co., 109 Conn. App. 371, 372–73,
951 A.2d 701 (2008). It failed, however, to challenge the
claims that the lack of a locking mechanism, safety
guard, user manual or warning regarding the propensity
of the arm of the heat lamp to lower was a substantial
factor, and thus the proximate cause, of the burns suf-
fered by the plaintiff. The failure to challenge these
matters is fatal to WABBO’s appeal. Accordingly, we
conclude that the court properly denied WABBO’s
motions for a directed verdict and to set aside the ver-
dict.
The judgment is reversed with respect to the medical
malpractice claims against Wang and the Center for
Women’s Health, P.C., and the case is remanded with
direction to render judgment dismissing those claims
against them; the judgment with respect to the product
liability claim is affirmed.
In this opinion the other judges concurred.
1
As a result of this conclusion, we need not reach the other claims raised
by Wang and the Center in AC 42469 and AC 42493.
2
The court, Hon. Kenneth B. Povodator, judge trial referee, issued a fifty-
two page memorandum of decision on January 3, 2019, addressing various
motions, including motions for permission to file a late motion to reargue
and motions for reconsideration of the 2012 motions to dismiss, motions
for directed verdict, motions to set aside the verdict, a motion for remittitur
and a motion for judgment notwithstanding the verdict.
3
Pursuant to a user brochure introduced into evidence, the heat lamp
promoted metabolism, regulated physiological deficiencies, diminished
inflammation and eased pain, tissue injuries, arthritis, and various skin
conditions. This device contained a round plate coated with thirty-three
elements and was activated by a built-in heating element. The mineral plate
then emitted ‘‘a special band of electromagnetic waves’’ that were absorbed
by the patient’s body.
4
‘‘The action was commenced in April, 2012. In December of that year
. . . Wang sought to implead [WABBO] the distributor of the heat lamp
that caused the injury to the plaintiff . . . . After the motion was granted,
and a third-party complaint served on [WABBO], the plaintiff amended her
complaint so as to assert a direct claim against . . . [WABBO]. Early in
the trial . . . Wang withdrew his complaint directed to . . . WABBO.’’ See
part II of this opinion.
5
The heat lamp brochure introduced into evidence cautioned that the
head of the heat lamp should not be touched during operation. It further
instructed that the head of the lamp should be positioned eight to twelve
inches away from the patient.
6
The plaintiff was unaware of how the head of the heat lamp ended up
on her foot. When Wang returned to the treatment room, ‘‘he did not notice
or observe whether the lamp assembly had tipped over or whether the arm
supporting the lamp head had descended.’’
7
‘‘[P]rofessional negligence or malpractice . . . [is] defined as the failure
of one rendering professional services to exercise that degree of skill and
learning commonly applied under all the circumstances in the community
by the average prudent reputable member of the profession with the result of
injury, loss, or damage to the recipient of those services. . . . Furthermore,
malpractice presupposes some improper conduct in the treatment or opera-
tive skill [or] . . . the failure to exercise requisite medical skill.’’ (Emphasis
omitted; internal quotation marks omitted.) Votre v. County Obstetrics &
Gynecology Group, P.C., 113 Conn. App. 569, 576, 966 A.2d 813, cert. denied,
292 Conn. 911, 973 A.2d 661 (2009).
8
‘‘A motion to dismiss admits all facts well pleaded and invokes any
record that accompanies the motion, including supporting affidavits that
contain undisputed facts. . . . In a medical malpractice action, despite the
allegations in the plaintiff’s complaint, it is proper to consider undisputed
facts contained in affidavits when deciding a motion to dismiss if the affida-
vits provide independent evidence of the nature of a defendant’s medical
practice. . . . Where . . . the motion [to dismiss] is accompanied by sup-
porting affidavits containing undisputed facts, the court may look to their
content for determination of the jurisdictional issue and need not conclu-
sively presume the validity of the allegations of the complaint. . . . Gener-
ally, [i]f affidavits and/or other evidence submitted in support of a defen-
dant’s motion to dismiss conclusively establish that jurisdiction is lacking,
and the plaintiff fails toundermine this conclusion with counteraffidavits
. . . or other evidence, the trial court may dismiss the action without further
proceedings. . . . If, however, the defendant submits either no proof to
rebut the plaintiff’s jurisdictional allegations . . . or only evidence that fails
to call those allegations into question . . . the plaintiff need not supply
counteraffidavits or other evidence to support the complaint, but may rest on
the jurisdictional allegations therein. . . . As a general matter, the burden
is placed on the defendant to disprove personal jurisdiction.’’ (Citations
omitted; internal quotation marks omitted.) Carpenter v. Daar, 199 Conn.
App. 367, 381–82, 236 A.3d 239, cert. granted, 335 Conn. 962, 239 A.3d
1215 (2020).
In the event, however, that the motion to dismiss raises a factual question
that is not determinable from the record, the plaintiff bears the burden of
proof to present evidence to establish jurisdiction, and due process may
require an evidentiary hearing. LaPierre v. Mandell & Blau, M.D.’s, P.C.,
202 Conn. App. 44, 49 n.3, 243 A.3d 816 (2020).
9
General Statutes § 20-206aa (3) provides: ‘‘ ‘The practice of acupuncture’
means the system of restoring and maintaining health by the classical and
modern Oriental medicine principles and methods of assessment, treatment
and prevention of diseases, disorders and dysfunctions of the body, injury,
pain and other conditions. ‘The practice of acupuncture’ includes:
(A) Assessment of body function, development of a comprehensive treat-
ment plan and evaluation of treatment outcomes according to acupuncture
and Oriental medicine theory;
(B) Modulation and restoration of normal function in and between the
body’s energetic and organ systems and biochemical, metabolic and circula-
tion functions using stimulation of selected points by inserting needles,
including, trigger point, subcutaneous and dry needling, and other methods
consistent with accepted standards within the acupuncture and Oriental
medicine profession;
(C) Promotion and maintenance of normal function in the body’s energetic
and organ systems and biochemical, metabolic and circulation functions by
recommendation of Oriental dietary principles, including, use of herbal and
other supplements, exercise and other self-treatment techniques according
to Oriental medicine theory; and
(D) Other practices that are consistent with the recognized standards of
the acupuncture and Oriental medicine profession and accepted by the
National Certification Commission for Acupuncture and Oriental Medicine.’’
See generally General Statutes § 20-206bb (setting forth licensing require-
ment for persons engaging in practice of acupuncture in Connecticut).
10
The plaintiff alleged that she suffered third degree burns to her left foot
and toes, a broken toe, an infection of a bone in her toe, permanent deformity
and scarring of her left toes, foot and leg, permanent pain in her left foot,
loss of sensation and numbness in her left toes and foot, and physiological,
psychological, and neurological sequelae and required a five day admission
to the burn unit of a New York hospital, multiple skin graft surgeries, and
multiple debriding procedures.
11
General Statutes § 52-184c (b) provides: ‘‘If the defendant health care
provider is not certified by the appropriate American board as being a
specialist, is not trained and experienced in a medical specialty, or does
not hold himself out as a specialist, a ‘similar health care provider’ is one
who: (1) Is licensed by the appropriate regulatory agency of this state or
another state requiring the same or greater qualifications; and (2) is trained
and experienced in the same discipline or school of practice and such
training and experience shall be as a result of the active involvement in the
practice or teaching of medicine within the five-year period before the
incident giving rise to the claim.’’
12
General Statutes § 52-190a (a) provides: ‘‘No civil action or apportion-
ment complaint shall be filed to recover damages resulting from personal
injury or wrongful death occurring on or after October 1, 1987, whether in
tort or in contract, in which it is alleged that such injury or death resulted
from the negligence of a health care provider, unless the attorney or party
filing the action or apportionment complaint has made a reasonable inquiry
as permitted by the circumstances to determine that there are grounds for
a good faith belief that there has been negligence in the care or treatment
of the claimant. The complaint, initial pleading or apportionment complaint
shall contain a certificate of the attorney or party filing the action or appor-
tionment complaint that such reasonable inquiry gave rise to a good faith
belief that grounds exist for an action against each named defendant or for
an apportionment complaint against each named apportionment defendant.
To show the existence of such good faith, the claimant or the claimant’s
attorney, and any apportionment complainant or the apportionment com-
plainant’s attorney, shall obtain a written and signed opinion of a similar
health care provider, as defined in section 52-184c, which similar health
care provider shall be selected pursuant to the provisions of said section,
that there appears to be evidence of medical negligence and includes a
detailed basis for the formation of such opinion. Such written opinion shall
not be subject to discovery by any party except for questioning the validity
of the certificate. The claimant or the claimant’s attorney, and any apportion-
ment complainant or apportionment complainant’s attorney, shall retain the
original written opinion and shall attach a copy of such written opinion,
with the name and signature of the similar health care provider expunged,
to such certificate. The similar health care provider who provides such
written opinion shall not, without a showing of malice, be personally liable
for any damages to the defendant health care provider by reason of having
provided such written opinion. In addition to such written opinion, the court
may consider other factors with regard to the existence of good faith. If
the court determines, after the completion of discovery, that such certificate
was not made in good faith and that no justiciable issue was presented
against a health care provider that fully cooperated in providing informal
discovery, the court upon motion or upon its own initiative shall impose
upon the person who signed such certificate or a represented party, or both,
an appropriate sanction which may include an order to pay to the other
party or parties the amount of the reasonable expenses incurred because
of the filing of the pleading, motion or other paper, including a reasonable
attorney’s fee. The court may also submit the matter to the appropriate
authority for disciplinary review of the attorney if the claimant’s attorney
or the apportionment complainant’s attorney submitted the certificate.’’
(Emphasis added.)
13
Practice Book § 10-30 provides in relevant part: ‘‘(a) A motion to dismiss
shall be used to assert . . . (2) lack of jurisdiction over the person . . . .
‘‘(b) Any defendant, wishing to contest the court’s jurisdiction, shall do
so by filing a motion to dismiss within thirty days of the filing of an appear-
ance. . . .’’ The plaintiff does not dispute that the motion to dismiss filed
by the Center and joined by Wang was timely.
14
In its memorandum of law in support of the motion to dismiss, the Center
argued: ‘‘The civil summons signed by [the] plaintiff’s counsel contains the
case code of T 28 which is the code for Medical Malpractice. Appended to
the complaint is a document entitled ‘Certificate,’ which is signed by the
plaintiff’s attorney and which states in part, ‘I . . . hereby certify that I have
made reasonable inquiry, as permitted by the circumstances, to determine
whether there are grounds for a good faith belief that there has been negli-
gence in the case and treatment of the plaintiff . . . . This inquiry has given
rise to a good faith belief on my part that grounds exist for an action against
the defendants . . . .’ ’’ (Footnote omitted.)
15
The opinion letter attached to the first amended complaint provided:
‘‘OPINION
PURSUANT TO C.G.S., SECTION 52-190a
‘‘Dear Mr. Lichtenstein:
‘‘Thank you for asking me to review the case of Judith Kissel. As you
know, I am a licensed acupuncturist. In my role as a licensed acupuncturist,
I am familiar with the standard of care as it relates to the practice of
acupuncture in the United States. At your request, I have read and reviewed
the following medical records of Judith Kissel:
•Records from the Center for Women’s Health
•Records from the Stamford Hospital
‘‘Based upon my review of the medical records, it is my opinion that there
was negligence in the care and treatment of Judith Kissel by Reed Wang,
L.Ac on April 22, 2010 at the Center for Women’s Health. The standard of
care dictates that patients receiving acupuncture must be positioned a safe
distance from any piece of equipment that has the potential to injure the
patient. In addition, the patient needs to be appropriately monitored to
ensure that the patient remains safe throughout the acupuncture procedure.
In this case, Ms. Kissel’s left foot was burned on a heat lamp while she was
receiving acupuncture from Reed Wang, L.Ac. Mr. Wang was negligent in
his placement and/or monitoring of Ms. Kissel during the acupuncture proce-
dure. Mr. Wang’s departure from the standard of care was a substantial
factor in causing the thermal burn to Ms. Kissel’s left foot.
‘‘My opinion that there was negligence on the part of Mr. Wang is based
upon my review of the medical records as well as my education, training,
and experience. The opinion stated herein is based upon the information
available to me at this time. Should other information and evidence become
available, I reserve the right to supplement and/or amend this opinion.’’
(Emphasis omitted.)
16
The plaintiff attached a copy of a letter requesting the licensed acupunct-
urist to review the facts of this case. This letter provided in relevant part:
‘‘Thank you for agreeing to review this case. It involves a 52 y/o who sched-
uled her first acupuncture session with Dr. Reed Wang who provides his
service at the OB/GYN office of Center for Women’s Health in Stamford.
During this session on April 22, 2010, a heat lamp was set up and Dr. Wang
exited the room. At some point, this heat lamp fell onto Ms. Kissel’s left
foot. Dr. Wang and obstetrician, Dr. Joel Evans, took Ms. Kissel to Stamford
ED where she was diagnosed with 3rd degree and 2nd degree burns to the
left great toe as well as the dorsum aspect of the foot and the left second
toe. She has had multiple surgeries and skin grafts as a result.
‘‘The medical records are skimpy because Dr. Wang did not write a note
in her chart pertaining to this incident. Only Dr. Evans made a notation
after the fact. We are looking to you for comment on this incident and Dr.
Wang’s care and treatment as an acupuncturist.
‘‘When you have completed your review, please call Attorney Joel Lich-
tenstein at your earliest convenience to discuss.’’
17
The Center disputed, inter alia, that the opinion letter had existed prior
to the commencement of the medical malpractice action and that the author
of the opinion letter had been sent the plaintiff’s medical records. The Center
argued additionally that an evidentiary hearing was required to resolve the
disputed facts set forth in the affidavit from the plaintiff’s counsel and that
the plaintiff could not amend her complaint to include the opinion letter.
18
Specifically, the court quoted the following language from our decision:
‘‘Given the fallibility existing in the legal profession . . . it is possible that
a written opinion of a similar health care provider, existing at the time of
commencement of an action, might be omitted through inadvertence. In
such a scenario, it certainly may be within the discretionary power of the
trial judge to permit an amendment to attach the opinion, and, in so doing,
deny a pending motion to dismiss. Such a discretionary action would not
be at variance with the purpose of § 52-190a, to prevent groundless lawsuits
against health care providers.’’ (Footnote omitted.) Votre v. County Obstet-
rics & Gynecology Group, P.C., supra, 113 Conn. App. 585.
19
Wang, the Center, and WABBO filed a number of various postverdict
motions that extended the appellate process.
20
See, e.g., Estela v. Bristol Hospital, Inc., 179 Conn. App. 196, 203–21,
180 A.3d 595 (2018) (discussing applicability of § 52-592).
21
The court granted the motions for permission to file a second motion
for reconsideration.
22
Citing Peters v. United Community & Family Services, Inc., supra, 182
Conn. App. 705, Wang argues that this court should apply the plenary stan-
dard of review when considering a trial court’s decision regarding a motion
to dismiss. We note that our Supreme Court has stated that there is no
meaningful distinction between plenary and de novo review and that it has
used those terms interchangeably. Ammirata v. Zoning Board of Appeals,
264 Conn. 737, 746 n.13, 826 A.2d 170 (2003); see also Sherman v. Ronco,
294 Conn. 548, 554 n.10, 985 A.2d 1042 (2010).
23
General Statutes § 52-592 (a) provides: ‘‘If any action, commenced within
the time limited by law, has failed one or more times to be tried on its
merits because of insufficient service or return of the writ due to unavoidable
accident or the default or neglect of the officer to whom it was committed,
or because the action has been dismissed for want of jurisdiction, or the
action has been otherwise avoided or defeated by the death of a party or
for any matter of form; or if, in any such action after a verdict for the
plaintiff, the judgment has been set aside, or if a judgment of nonsuit has
been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if
the plaintiff is dead and the action by law survives, his executor or adminis-
trator, may commence a new action, except as provided in subsection (b)
of this section, for the same cause at any time within one year after the
determination of the original action or after the reversal of the judgment.’’
24
See General Statutes § 52-128 and Practice Book § 10-59.
25
Specifically, we stated: ‘‘The original opinion letter was authored by a
board certified dermatologist, who did not claim to have any training or
experience in cosmetic surgery, let alone a certification in plastic surgery
or cosmetic surgery. Although the board certified dermatologist claimed to
know the relevant standard of care and that [the defendant] breached that
standard, this is not sufficient to meet the requirements of § 52-184c (c).
. . . The plaintiff was required to obtain an opinion letter authored by a
health care provider with experience and training in cosmetic surgery, and
with board certification in cosmetic surgery or in a specialty requiring greater
training and experience. Both of these requirements are missing from the
original opinion letter.’’ (Citation omitted.) Gonzales v. Langdon, supra, 161
Conn. App. 507.
26
The plaintiff conceded that, based on the allegations set forth in his
complaint, he was required to provide an opinion letter from a doctor trained
and board certified in oral and maxillofacial surgery, and that the opinion
letter attached to the complaint did not set forth these required details.
Peters v. United Community & Family Services, Inc., supra, 182 Conn.
App. 699.
27
Specifically, we stated: ‘‘Although at this juncture it would seem prudent
for a plaintiff to follow the corrective measures approved in Gonzales, we
do not decide at this time whether a trial court has the authority to permit
alternative procedures, such as the use of a clarifying affidavit, to remedy
a defective opinion letter.’’ Peters v. United Community & Family Services,
Inc., supra, 182 Conn. App. 705 n.10.
In Carpenter v. Daar, 199 Conn. App. 367, 389–90, 236 A.3d 239, cert.
granted, 335 Conn. 962, 239 A.3d 1215 (2020), we subsequently held that in
the case of a defective opinion letter, a plaintiff must amend the complaint
and not use a subsequently filed supplemental affidavit from the author of the
opinion letter to cure said defect. Our Supreme Court granted certification
in that case, limited to the following issue: ‘‘Did the Appellate Court properly
uphold the trial court’s dismissal of the plaintiff’s medical malpractice action
for failure to comply with . . . § 52-190a?’’ Carpenter v. Daar, 335 Conn.
962, 239 A.3d 1215 (2020).
28
Six days later, the Center joined Wang’s June 26, 2018 motion. In this
motion, the Center argued that ‘‘[t]he issues as to the Center and . . . Wang
are identical as to the same motion to dismiss and ruling applied to the
Center. . . . The undersigned defendant does not seek to further brief or
argue any of the issues and relies upon the motion that was filed by . . .
Wang . . . and the oral argument that took place on the motion on Septem-
ber 6, 2018. To avoid inconsistent rulings between [Wang and the Center]
who filed identical motions to dismiss and received the same ruling, the
[Center] seeks to join this motion for reconsideration.’’
29
Perhaps presciently, the court aptly noted: ‘‘There seems to be no identi-
fied impediment to the [Center and Wang] raising the issue on appeal—
notwithstanding the earlier denial of the motions to dismiss, Peters is claimed
to represent the current accurate state of the law, and no reason had been
identified why it would not be applicable prior to final judgment in this
case, if in fact that decision controls the jurisdictional issue first raised
more than six years ago.’’
30
For the purposes of our analysis, whether the opinion letter was missing
from the complaint or was deficient in some other manner appears to
constitute a distinction without a difference. Under both scenarios, the
result is a defective letter pursuant to § 52-190a.
31
The plaintiff does not argue that the judgment should be affirmed based
on the reasoning utilized in the court’s 2012 memorandum of decision—
that is, the court had discretion to permit the plaintiff to amend the medical
malpractice complaint to include the opinion letter because the opinion
letter had been in existence at the time that the action was commenced.
32
In Torres v. Carrese, supra, 149 Conn. App. 611 n.14, we mentioned that
the court could not consider an opinion letter that had been obtained after
the action had been commenced, after the motions to dismiss had been
filed, and after the statute of limitations had expired. This reference to the
statute of limitations is not the equivalent of the specific holding of Peters
v. United Community & Family Services, Inc., supra, 182 Conn. App. 706,
that efforts to cure a defect in an opinion letter must be initiated prior to
the expiration of the statute of limitations.
33
In the January 3, 2019 postverdict memorandum of decision, the court
did not address the three year repose section of § 52-584. It did note, however,
that the plaintiff’s request to amend her complaint ‘‘was filed substantially
more than two years after the date of the occurrence . . . [and that] [t]here
is no claim that the corrective action taken by the plaintiff occurred prior
to the expiration of the statute of limitations.’’
34
On February 6, 2013, Wang filed a third-party complaint against WABBO.
Approximately one month later, the plaintiff filed a third-party complaint
against WABBO. At the start of the trial, Wang withdrew his action
against WABBO.
35
General Statutes § 52-572m (b) provides in relevant part: ‘‘ ‘Product
liability claim’ includes all claims or actions brought for personal injury
. . . caused by the manufacture, construction, design . . . warnings,
instructions, marketing, packaging or labeling of any product. ‘Product liabil-
ity claim’ shall include, but is 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 negli-
gent or innocent.’’ See generally Allard v. Liberty Oil Equipment Co., 253
Conn. 787, 799–800, 756 A.2d 237 (2000) (complaint set forth ‘‘classic allega-
tions of product liability’’); Gajewski v. Pavelo, 36 Conn. App. 601, 611, 652
A.2d 509 (1994) (noting that current statutory scheme intended to merge
various common-law theories of product liability into one cause of action),
aff’d, 236 Conn. 27, 670 A.2d 318 (1996).
36
See, e.g., Wagner v. Clark Equipment Co., 243 Conn. 168, 174–75, 700
A.2d 38 (1997) (plaintiff filed product liability action alleging theories of
strict liability for defective design, strict liability for failure to warn or
instruct, negligent design, and negligent failure to warn or instruct).
37
Practice Book § 16-37 provides: ‘‘Whenever a motion for a directed
verdict made at any time after the close of the plaintiff’s case-in-chief is
denied or for any reason is not granted, the judicial authority is deemed to
have submitted the action to the jury subject to a later determination of
the legal questions raised by the motion. The defendant may offer evidence
in the event the motion is not granted, without having reserved the right to
do so and to the same extent as if the motion had not been made. After
the acceptance of a verdict and within the time stated in Section 16-35 for
filing a motion to set a verdict aside, a party who has moved for a directed
verdict may move to have the verdict and any judgment rendered thereon
set aside and have judgment rendered in accordance with his or her motion
for a directed verdict; or if a verdict was not returned such party may move
for judgment in accordance with his or her motion for a directed verdict
within the aforesaid time after the jury has been discharged from consider-
ation of the case. If a verdict was returned, the judicial authority may allow
the judgment to stand or may set the verdict aside and either order a new
trial or direct the entry of judgment as if the requested verdict had been
directed. If no verdict was returned, the judicial authority may direct the
entry of judgment as if the requested verdict had been directed or may order
a new trial.’’
38
In Pellet v. Keller Williams Realty Corp., supra, 177 Conn. App. 42, we
noted that some of our decisions had applied the abuse of discretion standard
when reviewing the granting of a motion for a directed verdict. ‘‘[A] line of
cases out of this court has stated that we review a trial court’s granting of
a motion for a directed verdict for an abuse of discretion. . . . In tracing
the origins of this assertion, it is clear that this standard improperly became
conflated at one point with the standard of review for challenges to the
grant or denial of motions to set aside a verdict. . . . In any event, because
we are bound by the precedent of our Supreme Court as the ultimate arbiter
of state law; see Stuart v. Stuart, 297 Conn. 26, 45–46, 996 A.2d 259 (2010);
we apply the standard of review that it has held proper for a challenge to
a trial court’s granting of a motion for a directed verdict. That standard is
plenary. See, e.g., Curran v. Kroll, [303 Conn. 845, 855, 37 A.3d 700 (2012)].’’
(Citations omitted.) Pellet v. Keller Williams Realty Corp., supra, 50 n.9.