Products Liability Law Reporter

The Connecticut Supreme Court held that a patient who underwent unsuccessful implantation of a pelvic mesh sling could not hold a hospital liable as a product seller under the Connecticut Product Liability Act (CPLA), Conn. Gen. Stat. §52-572m et seq.

Debra Normandy underwent surgical implantation of American Medical Systems, Inc.’s Monarc Subfascial Hammock pelvic mesh sling. The operation was performed by physician Amy Breakstone at Bristol Hospital. Normandy was later diagnosed as having suffered mesh exposure and underwent surgical removal of the sling. She sued the hospital, alleging violation of the CPLA, among other claims. The defendant moved successfully for summary judgment, arguing that it was not a product seller as a matter of law.

Affirming, the state high court noted that the CPLA defines “product seller” in part as any person or entity engaged in the business of selling products whether the sale is for resale, use, or consumption. Citing case law, the court also noted that courts have considered a party a product seller when the sale of a product is a principal part of the transaction at issue and the essence of the relationship between buyer and seller is not furnishing a professional skill or service. Hospitals, the court added, have predominantly been held to be service providers, not product sellers, for purposes of strict liability.

The court concluded that the defendant had not actively advertised the Monarc mesh sling for sale to its patients, had not mentioned the mesh sling on its website, and had not sent any Monarc-related literature or marketing information to the plaintiff. Moreover, the majority of the defendant’s bill was for services, not products, provided to the plaintiff. The court thus rejected the plaintiff’s argument that the fact that the defendant had billed her more for the sling than it had paid rendered it a product seller. Profiting from providing a product does not by itself render an entity a product seller, the court found.

Accordingly, the trial court had properly concluded that the defendant was not a product seller as a matter of law.

Citation: Normandy v. American Med. Sys., Inc., 2021 WL 3482928 (Conn. Aug. 9, 2021).