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32 ¦ AUGUST 31, 2020 CONNECTICUT OPINIONS

city. The Workers’ Compensation Commission PERSONAL INJURY • CIVIL PROCEDURE •
found that, because Howie’s and All Roofs were
uninsured and the city had a statutory duty to PRODUCTS LIABILITY

maintain city-owned property, the city was liable Court Finds No Innocent
for plaintiff’s injuries as the plaintiff’s “princi-
pal employer.” The appellate court affirmed the Misrepresentation Claim Available for
WCC’s finding, and the city appealed arguing that Products Liability without Commercial
maintaining the roof was not a part or process Transaction with Plaintiff
of the city’s trade or business. Citing Massolini,
the court affirmed the appellate court and WCC’s
findings, holding it was within the city’s trade or CASE: Farrell v. Johnson & Johnson
business to maintain the roof of the transfer fa- COURT: Connecticut Supreme Court
cility. The judgment was affirmed by the court. DOC. NO.: SC 20225
COURT OPINION BY: Robinson
DATE: April 15, 2020 • PAGES: 20
PERSONAL INJURY • CIVIL PROCEDURE Plaintiff was diagnosed with pelvic organ pro-
lapse, and underwent surgery to implant a mesh
product to prevent further prolapse. Plaintiff
Court Upholds Trial Court’s Spoliation experienced pain and other complications fol-
Instruction lowing surgery and approximately three months
later, she had surgery to remove the mesh prod-
CASE: Boone v. Boehringer Ingelheim Pharm., Inc. uct. The surgeon removed as much of the mesh
COURT: Connecticut Supreme Court as possible; however, the mesh product had be-
DOC. NO.: SC 20200 come imbedded in her tissue. Plaintiff under-
COURT OPINION BY: Kahn went a second surgery to remove the mesh but
DATE: May 04, 2020 • PAGES: 25
Upon experiencing heart palpitations, decedent continued to have pain and she was diagnosed
was diagnosed with nonvalvular atrial fibrillation with nerve damage. Despite additional proce-
and was prescribed the anticoagulant Pradaxa. dures to remove the mesh and alleviate pain,
Decedent suffered a gastrointestinal bleed and plaintiff continued to experience pain, causing
underwent dialysis to remove Pradaxa from her her to retire from work. Plaintiff brought claims
blood. Decedent’s kidneys began to fail and de- alleging lack of informed consent, innocent and
cedent later died. Plaintiff brought the present negligent misrepresentation, misrepresentation
action alleging negligence for failure to give ade- and loss of consortium. The trial court direct-
quate warnings and instructions on bleeding, neg- ed a verdict in favor of defendants on innocent
ligence in failing to test and study Pradaxa, and misrepresentation and the jury returned a ver-
defective design. During trial, the court declined dict in favor of the defendants on all the other
to issue directions to the jury on spoliation of cer- claims. Plaintiff appealed, arguing the trial court
tain documents related to a federal claim against abused its discretion by directing the verdict on
the defendants, and the jury returned a verdict in misrepresentation and excluding two journal
favor of defendants, finding that plaintiff failed to articles from discovery as hearsay. The appel-
demonstrate any wrongful conduct on the part of late court upheld the trial court’s judgment, and
the defendants which led to decedent’s death. On plaintiff appealed. Plaintiff sought to admit
appeal, plaintiff alleged the trial court abused its two journal articles on the experimental nature
discretion by failing to properly instruct the jury of surgical meshes, and argued they did so to
on spoliation of documents related to Pradaxa, establish notice, however the trial court found
and the court upheld the trial court’s finding. The they were being submitted to establish the truth
court found the trial court’s decision was related of the articles. The defendant argued plaintiff
back to their ruling at the outset that any bad faith failed to establish that the surgeon actually read
argument about spoliation would not be admitted, the article, and therefore could not establish
and was not proper “fodder.” The court found the notice, and the court agreed. The court found
trial court’s dismissal on design defect was proper that there was no direct transaction between the
because marketing a reversal agent for the side ef- defendant company which produced the mesh
fects of Pradaxa would have required independent implant and the plaintiff, and therefore no com-
FDA approval, and it was not approved until after mercial transaction existed to underlie an inno-
the decedent’s death. The court affirmed the trial cent misrepresentation claim. The court upheld
court’s finding. the appellate court’s finding.

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