Farrell v. Johnson & Johnson

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MARY BETH FARRELL ET AL. v. JOHNSON
AND JOHNSON ET AL.
(SC 20225)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiffs, M and V, sought to recover damages from, among others, the
defendant H, a urogynecologist, for, inter alia, lack of informed consent
and innocent misrepresentation in connection with an unsuccessful
surgery in which H implanted a mesh product in M’s body for the purpose
of treating M’s pelvic organ prolapse. M experienced bleeding and pain
after the procedure, and, despite several follow-up procedures to allevi-
ate the pain and to remove the mesh product, her pain continued. M
subsequently was diagnosed with nerve damage. Prior to trial, the plain-
tiffs sought to introduce into evidence two articles from medical journals
containing certain statements regarding the limited data about the mesh
product used in the present case and the experimental nature of the
implantation procedure, including statements that patients should con-
sent to the surgery with an understanding of the risks and experimental
nature of the procedure. The plaintiffs claimed that the statements in
the articles were admissible to demonstrate that H knew or should have
known that the mesh surgery was experimental and the subject of
medical controversy, and that H failed to properly advise M of the risks
associated with the mesh product. Following a hearing, the trial court
determined that the articles were being offered not for purposes of
notice but for the truth of the matter asserted therein and, therefore,
were inadmissible hearsay. At the conclusion of the trial, the court
directed a verdict in favor of H and another remaining defendant on
the innocent misrepresentation claim. The jury subsequently returned
a verdict in favor of the defendants on the remaining claims, and the
trial court rendered judgment thereon. Thereafter, the plaintiffs appealed
to the Appellate Court, which affirmed the trial court’s judgment. The
Appellate Court concluded, inter alia, that the trial court did not abuse
its discretion by excluding the two journal articles on the ground that
they were inadmissible hearsay and that the trial court properly directed
a verdict for the defendants on the innocent misrepresentation claim
because innocent misrepresentation claims primarily apply to business
transactions, typically between a buyer and seller. On the granting of
certification, the plaintiffs appealed to this court. Held:
1. The Appellate Court correctly concluded that the trial court did not abuse
its discretion in declining to admit into evidence the two journal articles
offered by the plaintiffs on the ground that those articles were inadmissi-
ble hearsay: the plaintiffs could not introduce the articles for the non-
hearsay purpose of proving what H, as a physician, knew or reasonably
should have known with respect to the experimental nature of the mesh
product and procedure, as the plaintiffs failed to meet their burden of
demonstrating that H read or reasonably should have read the contents
of the articles; moreover, the defendants contested the authority of the
articles, and the trial court did not abuse its discretion in excluding
them for the purpose of establishing that they were so authoritative in
the field that H should have been on constructive notice of their content.
2. The Appellate Court properly upheld the trial court’s decision to direct
a verdict for the defendants on the plaintiffs’ innocent misrepresentation
claim, this court having concluded that such a claim does not lie in
the context of the present case: innocent misrepresentation claims in
Connecticut generally are governed by § 552C of the Restatement (Sec-
ond) of Torts, which requires that the misrepresentation occur in a
‘‘sale, rental or exchange transaction with another,’’ and, in the present
case, the plaintiffs and H were not parties to such a commercial transac-
tion because M sought out the services of H not to purchase the mesh
product but primarily for the provision of medical services, namely, the
implantation of the mesh product; moreover, this court rejected the
plaintiffs’ claim that liability for innocent misrepresentation should be
extended to statements made by physicians in the course of providing
medical services because, although § 552C of the Restatement (Second)
of Torts acknowledges that claims for innocent misrepresentation may
be brought in the context of other types of business transactions, the
provision of medical care often requires physicians to provide medical
opinions rather than statement of facts, and a physician who makes a
false statement of fact still may be liable for misrepresentation; further-
more, even if this court assumed that innocent misrepresentation claims
could be pursued in the product liability context, that was of no conse-
quence because the plaintiffs did not seek to recover from H for product
liability, and this court declined to apply the doctrine of strict liability
for innocent misrepresentations made in the course of providing medical
treatment, as such liability would be doctrinally inconsistent with the
existing framework governing claims against physicians arising from
acts of omission or commission during physician-patient communica-
tions.
Argued October 25, 2019—officially released April 15, 2020*
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged negligent misrepresentation, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Waterbury and tried to the jury before Zemetis,
J.; thereafter, the court directed a verdict for the defen-
dants on the plaintiffs’ innocent misrepresentation claim;
subsequently, the jury returned a verdict for the defen-
dant Brian J. Hines et al. on the remaining counts, and
the court rendered judgment thereon, from which the
plaintiffs appealed to the Appellate Court, Lavine, Kel-
ler and Bishop, Js., which affirmed the trial court’s
judgment, and the plaintiffs, on the granting of certifica-
tion, appealed to this court. Affirmed.
Brenden P. Leydon, with whom, on the brief, was
Jacqueline E. Fusco, for the appellants (plaintiffs).
David J. Robertson, with whom were Heidi M.
Cilano and, on the brief, Malaina J. Sylvestre, for the
appellees (defendant Brian J. Hines et al.).
Opinion
ROBINSON, C. J. This certified appeal requires us to
consider (1) when exhibits that otherwise would con-
stitute inadmissible hearsay may be admitted to prove
notice on the part of the defendant, Brian J. Hines, and
(2) whether the tort of innocent misrepresentation
extends to communications made by a physician during
the provision of medical services. The plaintiffs, Mary
Beth Farrell and Vincent Farrell,1 appeal, upon our grant
of their petition for certification,2 from the judgment
of the Appellate Court affirming the judgment of the
trial court, rendered after a jury trial, in favor of the defen-
dants Hines and Urogynecology and Pelvic Surgery, LLC,3
on numerous tort claims, including informed consent,
innocent misrepresentation, and negligent misrepre-
sentation, following an unsuccessful pelvic mesh sur-
gery on Mary Beth. See Farrell v. Johnson & John-
son, 184 Conn. App. 685, 688, 195 A.3d 1152 (2018). On
appeal, the plaintiffs challenge the Appellate Court’s
conclusions that the trial court properly (1) excluded
two medical journal articles from evidence as hearsay
when they had been offered to prove notice, and (2)
directed a verdict for the defendants on their innocent
misrepresentation claims. We disagree and, accordingly,
affirm the judgment of the Appellate Court.
The Appellate Court’s opinion sets forth the following
background facts and procedural history. ‘‘At some
point in 2007, Mary Beth’s gynecologist diagnosed her
with pelvic organ prolapse. As her condition worsened,
her gynecologist recommended that she see Hines, a
[urogynecologist], with whom she consulted in late Octo-
ber, 2008. Hines explained that implanting a mesh prod-
uct into Mary Beth would be the best surgery to treat
her condition. Mary Beth agreed to the surgery, and
Hines performed the procedure on November 19, 2008.’’
(Footnote omitted.) Id., 688–89.
‘‘Approximately four days after Mary Beth had returned
home from the surgery, she experienced excessive bleed-
ing and abdominal pain. Hines initially diagnosed her
with two large pelvic hematomas. Mary Beth continued
to follow up with Hines; however, she continued expe-
riencing pain. In February, 2009, Mary Beth underwent
another surgery during which Hines attempted to remove
the mesh product that he had implanted in her. Hines
removed as much of the mesh as possible; however,
some of the mesh could not be removed because it was
embedded in tissue. After a second surgery to remove
the mesh in the summer of 2009, Mary Beth still expe-
rienced pain and was diagnosed with damage to the
pudendal and obturator nerves.’’ Id., 689.
‘‘Mary Beth underwent several additional procedures,
such as nerve blocks and mesh removal, but these pro-
cedures did not eliminate the pain. The pain that she
experienced eventually caused her to resign her posi-
tion as a teacher so she could focus on her health.
At the time of trial in January, 2016, Mary Beth was
considering additional surgery, which she described as
‘major.’ ’’ Id.‘‘The plaintiffs served their original complaint on
November 15, 2011. The plaintiffs filed the operative,
third amended complaint on December 4, 2015, alleging
the following claims against the defendants: (1) lack of
informed consent; (2) innocent misrepresentation; (3)
negligent misrepresentation; (4) intentional misrepre-
sentation; and (5) loss of consortium.’’ Id., 690.
‘‘The plaintiffs’ case was tried to a jury in January,
2016. On January 19, 2016, the court directed a verdict
in favor of the defendants on the plaintiffs’ innocent
misrepresentation claim. On January 20, 2016, the jury
returned a verdict for the defendants on the remaining
counts, and the court [rendered] judgment on July 13,
2016. The plaintiffs’ motion to reargue was denied
. . . .’’ Id.The plaintiffs then appealed from the judgment of
the trial court to the Appellate Court, raising several
issues, including that the trial court (1) ‘‘abused its
discretion by excluding from evidence as hearsay two
journal articles,’’ and (2) ‘‘improperly directed a verdict
in favor of the defendants on the plaintiffs’ claim of
innocent misrepresentation . . . .’’ Id., 688. The Appel-
late Court agreed with the defendants’ argument that
the trial court did not abuse its discretion by excluding
the two journal articles regarding the experimental nature
of the surgery on the ground that they were inadmissible
hearsay. Id., 699. In addition, the Appellate Court con-
cluded that, under Johnson v. Healy, 176 Conn. 97, 405
A.2d 54 (1978), and § 552C of the Restatement (Second)
of Torts, the trial court properly directed a verdict for
the defendants on the innocent misrepresentation claim
because ‘‘innocent misrepresentation claims primarily
apply to business transactions, typically between a
buyer and seller, and . . . the theory is based on princi-
ples of warranty.’’ Farrell v. Johnson & Johnson, supra,184 Conn. App. 703. Accordingly, the Appellate Court
unanimously rendered judgment affirming the judgment
of the trial court. Id., 708. This certified appeal followed.
See footnote 2 of this opinion. Additional facts and
procedural history will be set forth as necessary.
I
We first consider whether the Appellate Court prop-
erly upheld the trial court’s exclusion from evidence of
the two articles discussing the experimental nature of
the mesh surgery as hearsay. The record reveals the
following additional facts and procedural history that
are relevant to our resolution of this claim. The plaintiffs
sought to introduce into evidence three journal articles
for notice purposes, two of which are at issue in this
appeal. Those two articles were (1) American College
of Obstetrics & Gynecology, ‘‘Pelvic Organ Prolapse,’’
109 ACOG Prac. Bull. 461 (2007) (ACOG Practice Bulle-
tin), and (2) D. Ostergard, ‘‘Lessons from the Past: Direc-
tions for the Future,’’ 18 Intl. Urogynecology J. 591
(2007) (Ostergard article). At trial, Hines testified that
he received the International Urogynecology Journal as
part of his membership in a professional society and
that he had read articles in Obstetrics & Gynecology,
but he was not aware of and had not read the two
specific articles at issue.
The plaintiffs sought to admit the following statement
from the ACOG Practice Bulletin: ‘‘Given the limited
data and frequent changes in marketed products (partic-
ularly with regard to type of mesh material itself, which
is most closely associated with several of the postopera-
tive risks, especially mesh erosion), the procedures
should be considered experimental and patients should
consent to surgery with that understanding.’’ With
respect to the Ostergard article, the plaintiffs sought to
admit the following three statements: (1) ‘‘a physician
can inform the patient of [the procedure’s] experimental
nature’’; (2) ‘‘[t]here is a need for more information with
specific graft materials to clarify success and adverse
event rates’’; and (3) ‘‘[w]ithout an adequate evidence
base, practitioners cannot determine whether an inno-
vative technique is the most safe and effective method
for treating a patient. Without adequate data on the risks
and benefits of new treatments, patients are unable to
provide a true informed consent.’’
Both parties submitted briefing on the admissibility
of the articles, and the trial court heard argument on
January 12, 2016. The trial court, in its ruling, agreed
that the plaintiffs were offering the articles for their
truth and that they therefore must be excluded as inad-
missible hearsay.4
On appeal, the plaintiffs argue that the journal arti-
cles were admissible because they were offered for non-
hearsay purposes, specifically, to show that Hines was
on notice of a controversy regarding mesh products.
In response, the defendants counter that the trial court
properly excluded the articles as hearsay because the
plaintiffs failed to show that Hines had read the articles
and, therefore, that the articles could not be admitted
for notice. The defendants also argue that the articles’
probative value was outweighed by their prejudicial
effect and that, even if the articles were admissible,
any error was harmless.
We begin with the standard of review applicable to
a trial court’s evidentiary decisions. ‘‘[We] examine the
nature of the ruling at issue in the context of the issues
in the case. . . . To the extent [that] a trial court’s
admission of evidence is based on an interpretation of
the [Connecticut] Code of Evidence, our standard of
review is plenary. For example, whether a challenged
statement properly may be classified as hearsay and
whether a hearsay exception properly is identified are
legal questions demanding plenary review. They require
determinations about which reasonable minds may not
differ; there is no ‘judgment call’ by the trial court, and
the trial court has no discretion to admit hearsay in the
absence of a provision providing for its admissibility.
. . . We review the trial court’s decision to admit
evidence, if premised on a correct view of the law,
however, for an abuse of discretion. . . . In other
words, only after a trial court has made the legal deter-
mination that a particular statement is or is not hear-
say, or is subject to a hearsay exception, is it vested
with the discretion to admit or to bar the evidence based
upon relevancy, prejudice, or other legally appropriate
grounds related to the rule of evidence under which
admission is being sought.’’5 (Citations omitted.) State
v. Saucier, 283 Conn. 207, 217–19, 926 A.2d 633 (2007).
‘‘Thus . . . the function performed by the trial court
in issuing its ruling should dictate the scope of review.’’
Id., 219. For example, the interpretation of a rule of
evidence is a question of law (e.g., constitutes hearsay),
but application of that interpreted rule of evidence is
discretionary by the trial court (e.g., a hearsay excep-
tion applies). Id., 219–20.
‘‘An out-of-court statement offered to establish the
truth of the matter asserted is hearsay.’’ (Internal quota-
tion marks omitted.) Id., 223; see Conn. Code Evid. § 8-
1 (3). ‘‘The hearsay rule forbids evidence of out-of-court
assertions to prove the facts asserted in them. If the
statement is not an assertion or is not offered to prove
the facts asserted, it is not hearsay. . . . This exclu-
sion from hearsay includes utterances admitted to show
their effect on the hearer.’’ (Citation omitted; internal
quotation marks omitted.) State v. Hull, 210 Conn. 481,
498–99, 556 A.2d 154 (1989). ‘‘Because, however, the
effect on the hearer rationale may be misapplied to
admit facts that are not relevant to the issues at trial
. . . courts have an obligation to ensure that a party’s
purported nonhearsay purpose is indeed a legitimate
one. . . . Evidence is . . . admissible [only] when it
tends to establish a fact in issue or to corroborate other
direct evidence in the case. . . . Accordingly, an out-
of-court statement is admissible to prove the effect on
the hearer only when it is relevant for the specific, per-
missible purpose for which it is offered.’’ (Citations
omitted; emphasis omitted; internal quotation marks omit-
ted.) State v. Miguel C., 305 Conn. 562, 574, 46 A.3d
126 (2012); see also E. Prescott, Tait’s Handbook of
Connecticut Evidence (6th Ed. 2019) § 8.3.1, p. 503.
‘‘The proffering party bears the burden of establishing
the relevance of the offered testimony. Unless such a
proper foundation is established, the evidence . . . is
irrelevant.’’ (Internal quotation marks omitted.) State
v. Davis, 298 Conn. 1, 23, 1 A.3d 76 (2010).
Notice is a long recognized nonhearsay purpose in
Connecticut. More than eighty years ago, this court
observed: ‘‘Admission of testimony of a witness . . .
that the day before the accident he had told [the fore-
man] . . . that the stone should be removed before
someone was injured . . . was not hearsay . . . and
was admissible as tending to impute to the defendants
notice of the situation and its potential dangers.’’ Jen-
kins v. Reichert, 125 Conn. 258, 264, 5 A.2d 6 (1939);
see Rogers v. Board of Education, 252 Conn. 753, 767,
749 A.2d 1173 (2000) (statements in transcript were not
inadmissible hearsay because they were offered ‘‘for
the relevant purpose of showing that the statements
had been made in the presence of the plaintiff’’); Whit-
man Hotel Corp. v. Elliott & Watrous Engineering Co.,
137 Conn. 562, 574, 79 A.2d 591 (1951) (admitting letters
from plaintiffs’ attorney to defendants to show ‘‘the fact
of the defendants’ knowledge of the claimed effect of
their operations, since that knowledge should influence
their future conduct’’).
Although our decision in State v. Saucier, supra, 283
Conn. 207, contemplates that a hearsay determination,
when based on an interpretation of the Code of Evi-
dence, is solely a question of law, it also instructs us
to ‘‘examine the nature of the ruling at issue in the con-
text of the issues in the case.’’ Id., 217. In the present
case, the trial court determined that the two articles
were inadmissible hearsay because they were irrelevant
with respect to the plaintiffs’ asserted nonhearsay pur-
pose. For a trial court to determine that a statement is
admissible nonhearsay, the court must find that it is
relevant for some reason other than its truth. See E.
Prescott, supra, § 8.3.1, p. 503. The plaintiffs’ stated
purpose for offering the articles was to show that Hines
had ‘‘notice . . . that there was a lack of sufficient risk-
benefit information upon which informed consent could
be made at that time. . . . [T]hat’s the heart of this
case.’’ Thus, the trial court was required to exercise its
discretion by finding facts regarding whether Hines had
notice of these articles in order to determine whether
they were relevant to the stated nonhearsay purpose.
Because the trial court was required to make a ‘‘judg-
ment call’’ in determining whether the articles were
admissible nonhearsay, we review the court’s determi-
nation for abuse of discretion and conclude that the
trial court did not abuse its discretion.6
The purpose of notice evidence is to show an effect
on the hearer. See E. Prescott, supra, § 8.8.1, p. 514
(‘‘[a] statement is not hearsay if offered to prove notice
to the hearer’’); see also 2 R. Mosteller, McCormick on
Evidence (8th Ed. 2020) § 249, pp. 196–200. Therefore,
if the offering party has failed to demonstrate that the
putative listener has heard or read the statement, it is
inadmissible to prove notice. See, e.g., Rotolo v. Digital
Equipment Corp., 150 F.3d 223, 224–25 (2d Cir. 1998)
(holding that District Court improperly admitted vid-
eotape created by plaintiff’s competitor for internal use
only as notice evidence against defendant because plain-
tiff presented no evidence that defendant saw tape or
reasonably should have seen it); George v. Celotex Corp.,
914 F.2d 26, 30 (2d Cir. 1990) (plaintiff must first prove
that defendant’s predecessor ‘‘saw the unpublished
report or that it reasonably should have seen it as part
of the published literature in the industry’’ because,
‘‘before [the] plaintiff can argue [nonhearsay] notice
she must show that the defendant was at least inferen-
tially put on notice by the report’’); Betts v. Manville
Personal Injury Settlement Trust, 225 Ill. App. 3d 882,
924, 588 N.E.2d 1193 (trial court improperly admitted
newspaper and magazine articles for notice purposes
because ‘‘there [was] no evidence anyone at [the defen-
dant company] read these articles such that notice can
be established’’), cert. denied, 146 Ill. 2d 622, 602 N.E.2d
447 (1992); 4 C. Fishman, Jones on Evidence (7th Ed.
2000) § 24:27, pp. 263–66 (‘‘In civil litigation as well as
criminal, a statement may be nonhearsay because it is
relevant to show knowledge or notice. . . . But to be
relevant for this nonhearsay purpose, the offering party
must establish that the adverse party in fact heard,
saw or read the statement.’’ (Footnotes omitted.)); R.
Mosteller, supra, § 249, p. 197 n.13 (‘‘[o]f course, there
must be evidence that the relevant party could hear
the statements or they are inadmissible under a notice
theory’’); see also State v. Rosales, 136 N.M. 25, 30, 94
P.3d 768 (2004) (explaining that, if evidence was offered
to show that witness heard victim’s statement, it could
prove motive, but, ‘‘[i]f [the witness] was unaware of
the victim’s claim, then [the defendant’s] theory that the
evidence was not being offered for its truth is difficult
to understand’’).
Courts have concluded that articles are admissible,
despite hearsay objections, to show whether a party
should have known a fact at issue. See Coyne v. Taber
Partners I, 53 F.3d 454, 461 n.6 (1st Cir. 1995) (allowing
newspaper article to show hotel’s constructive notice
of violent strike); Toney v. Zarynoff’s, Inc., 52 Mass.
App. 554, 562–63, 755 N.E.2d 301 (reversing trial court’s
exclusion of newspaper articles to show defendants’
knowledge of criminal activity in area, even though
defendant’s operator ‘‘had not read them’’), review
denied, 435 Mass. 1107, 761 N.E.2d 964 (2001). Or, in
the context of a manufacturer: ‘‘For purposes of deter-
mining if it had notice of the hazardous character of
its product, [the] defendant was chargeable with knowl-
edge of the entire body of scientific learning and litera-
ture relating to that product . . . .’’ Marsee v. United
States Tobacco Co., 866 F.2d 319, 326 (10th Cir. 1989).
We agree with these decisions insofar as they hold that,
if the proponent of an article can demonstrate that
another party should have known the contents of the
article, because of an independent duty to do so, it
may be admissible to prove notice constructively. For
example, manufacturers are ‘‘held to the knowledge of
an expert in its field . . . and therefore [have] a duty
‘to keep abreast of scientific knowledge, discoveries,
and advances and is presumed to know what is imparted
thereby.’ ’’ (Citations omitted.) George v. Celotex Corp.,
supra, 914 F.2d 28.
Physicians possess a duty to stay abreast of the state
of medical science in their areas of practice. See Tomer
v. American Home Products Corp., 170 Conn. 681, 687,
368 A.2d 35 (1976) (‘‘[s]ince the defendants could not
be held to standards which exceeded the limits of scien-
tific advances existing at the time of their allegedly
tortious conduct, expert testimony tending to show the
scope of duties owed could have been properly limited
to scientific knowledge existing at that time’’ (empha-
sis added)); C. Williams, Note, ‘‘Evidence-Based Medi-
cine in the Law Beyond Clinical Practice Guidelines:
What Effect Will EBM Have on the Standard of Care?,’’
61 Wash. & Lee L. Rev. 479, 508–12 (2004) (describing
duty and listing cases). In the present case, the defen-
dants contested the authoritativeness of the two arti-
cles at issue. As such, the trial court did not abuse its
discretion by excluding them for the purpose of estab-
lishing that they were so authoritative in the field that
Hines should have been on constructive notice of their
content—that is, that he reasonably should have read
them. Put differently, because something is published
in a journal does not mean, ipso facto, that it represents
the state of medical science at the time, such that a
physician is charged with a duty to know its contents.
But cf. George v. Celotex, supra, 914 F.2d 28–30 (deter-
mining that asbestos report was relevant to defendant’s
liability because of defendant’s duty to know and because
of defendant’s use of precise value criticized by report).
In the present case, the plaintiffs failed to meet their
burden of demonstrating that Hines read or reasonably
should have read the contents of these articles. Although
one of the underlying issues in the case was what Hines,
as a physician, knew or reasonably should have known
with respect to the experimental nature of the mesh,
the plaintiffs could not use the articles for that purpose
without first establishing that Hines was on actual or
constructive notice of the articles’ contents. Although
Hines testified that he had received or read certain
articles in the two journals at issue and had published
his own article in one of the journals, those facts alone
do not permit an inference that, as a result, he read
every article in each issue published by each of the
journals. Nor did the plaintiffs argue or present evi-
dence to establish an independent duty establishing that
Hines reasonably should have read these two articles,
beyond his receipt of one of the journals.7
The plaintiffs argue that proof of knowledge is not
necessary to prove notice. On this point, the plain-
tiffs rely on Blue Cross of California v. SmithKline
Beecham Clinical Laboratories, Inc., 108 F. Supp. 2d
116 (D. Conn. 2000). In Blue Cross of California, the
court considered the defendant’s motion for summary
judgment and concluded that ‘‘highly publicized infor-
mation’’ released by ‘‘the national media and various
professional organizations’’ put the plaintiffs on inquiry
notice for statute of limitations reasons. Id., 123–24.
The court denied the motion to strike the media reports
on hearsay grounds because they showed ‘‘inquiry
notice of the matters reported therein . . . .’’ Id., 123
n.5. Blue Cross of California is not inconsistent with
our decision in the present case. The plaintiffs here
have not asserted that the experimental nature of the
pelvic mesh was a matter covered in ‘‘volumes’’ by the
national media; had they done so, they would have a
stronger argument that Hines should have known of
that issue. Similarly, we disagree with the plaintiffs’
reliance on Kochan v. Owens-Corning Fiberglass Corp.,
242 Ill. App. 3d 781, 610 N.E.2d 683 (1993), overruled
by Nolan v. Weil-McLain, 233 Ill. 2d 416, 910 N.E.2d
549 (2009). In Kochan, the trial court permitted the
plaintiffs’ expert to summarize articles detailing the dan-
gers of asbestos. Kochan v. Owens-Corning Fiberglass
Corp., supra, 803. The court held that this evidence was
‘‘intended to show when, in [the expert’s] opinion, it
was generally known or should have been known in
the industry that asbestos caused asbestosis and was
linked to cancer.’’ Id., 805. In the present case, the
court allowed one of the three challenged articles to
be admitted through the plaintiffs’ expert under the
learned treatise exception to the hearsay rule under § 8-3
(8) of the Connecticut Code of Evidence to show what
Hines knew or should have known, but the plaintiffs
failed to establish such a foundation when offering the
ACOG Practice Bulletin and the Ostergard article.8
Accordingly, we conclude that the Appellate Court prop-
erly upheld the trial court’s conclusion that those two
articles were hearsay and not admissible to prove
notice.
II
We next turn to the plaintiffs’ claim that the trial
court improperly directed a verdict for the defendants
on the count of innocent misrepresentation. The record
reveals the following additional relevant facts and pro-
cedural history. On January 14, 2016, after the close of
evidence, the trial court heard arguments on the defen-
dants’ motion for a judgment and a directed verdict9
on several issues, including the innocent misrepresen-
tation claim. At this hearing, the plaintiffs argued, inter
alia, that the evidence at trial presented several misrep-
resentations by Hines, including his: (1) explanation
that ‘‘I believe[d], not correctly, but I believed I had a
pretty good understanding of what the risks of using
this product were’’; (2) failure to disclose certain pay-
ments; and (3) statement that the surgery ‘‘will improve
[the plaintiffs’] sex life . . . .’’ The trial court indicated
it had several questions regarding the applicability to
this case of the tort of innocent misrepresentation and
requested supporting case law from the plaintiffs. The
next day, the trial court granted the defendants’ motions
for a directed verdict and judgment on the innocent
misrepresentation claim and later rendered judgment
accordingly.10
On appeal, the plaintiffs contend that the Appellate
Court improperly upheld the trial court’s decision to
direct a verdict on the innocent misrepresentation
counts because it was both procedurally and substan-
tively improper. The plaintiffs argue that claims for
innocent misrepresentation are not limited to economic
loss, and, therefore, they should have been allowed to
present their claimed pecuniary loss to the jury. In addi-
tion, the plaintiffs contend that the requisite commer-
cial transaction existed between the parties because
Hines was in the business of performing these types of
procedures. The defendants counter that the trial court
properly directed a verdict on the claim of innocent
misrepresentation because there was no commercial
relationship between the parties and because ‘‘[t]he
mesh product that was used was entirely incidental to
the medical care that [Hines] rendered to [Mary Beth].’’
The defendants further argue that there was no factual
foundation for the innocent misrepresentation claim,
which, they contend, is inapplicable in cases arising
from the provision of medical services. We agree with
the defendants that the trial court properly directed a
verdict because a claim for innocent misrepresentation
does not lie as matter of law in this context.11
‘‘Whether the evidence presented by the plaintiff is
sufficient to withstand a motion for a directed verdict
is a question of law, over which our review is plenary.
. . . Directed verdicts are not favored. . . . A trial
court should direct a verdict only when a jury could
not reasonably and legally have reached any other con-
clusion. . . . In reviewing the trial court’s decision [to
grant a defendant’s motion for a directed verdict] we
must consider the evidence in the light most favorable
to the plaintiff. . . . 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.’’ (Citation omitted; internal quotation
marks omitted.) MacDermid, Inc. v. Leonetti, 328 Conn.
726, 744, 183 A.3d 611 (2018). ‘‘At the outset, we note
that although we do not generally favor directed ver-
dicts . . . [a] verdict may properly be directed where
the decisive question is one of law.’’ (Citation omitted;
internal quotation marks omitted.) Red Maple Proper-
ties v. Zoning Commission, 222 Conn. 730, 735, 610
A.2d 1238 (1992).
‘‘In Connecticut, a claim of innocent misrepresenta-
tion . . . is based on principles of warranty, and . . .
is not confined to contracts for the sale of goods. . . .
A person is subject to liability for an innocent misrepre-
sentation if in a sale, rental or exchange transaction
with another, [he or she] makes a representation of a
material fact for the purpose of inducing the other to
act or to refrain from acting in reliance upon it . . .
even though it is not made fraudulently or negligently.
. . . We have held that an innocent misrepresentation
is actionable, even though there [is] no allegation of
fraud or bad faith, because it [is] false and misleading,
in analogy to the right of a vendee to elect to retain
goods which are not as warranted, and to recover dam-
ages for the breach of warranty.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.) Gib-
son v. Capano, 241 Conn. 725, 730, 699 A.2d 68 (1997).
The seminal Connecticut case concerning innocent
misrepresentation is Johnson v. Healy, supra, 176 Conn.
97. In Johnson, this court discussed the evolution of
the common-law cause of action for innocent misrep-
resentation as an amalgam of tort and contract law.
‘‘Traditionally, no cause of action lay in contract for
damages for innocent misrepresentation; if the plaintiff
could establish reliance on a material innocent mis-
statement, he could sue for rescission, and avoid the
contract, but he could not get affirmative relief. . . .
In tort, the basis of responsibility, although at first undif-
ferentiated, was narrowed, at the end of the [nineteenth]
century, to intentional misconduct, and only gradually
expanded, in this century, to permit recovery in dam-
ages for negligent misstatements. . . . At the same
time, liability in warranty, that curious hybrid of tort
and contract law, became firmly established, no later
than the promulgation of the Uniform Sales Act in 1906.
In contracts for the sale of tangible chattels, express war-
ranty encompasses material representations which are
false, without regard to the state of mind or the due care
of the person making the representation. For breach
of express warranty, the injured plaintiff has always
been entitled to choose between rescission and dam-
ages. Although the description of warranty liability has
undergone clarification in the Uniform Commercial Code,
which supersedes the Uniform Sales Act, these basic
remedial principles remain unaffected. At the same
time, liability in tort, even for misrepresentations which
are innocent, has come to be the emergent rule for trans-
actions that involve a commercial exchange.’’ (Cita-
tions omitted; footnote omitted.) Id., 100–101; see also
3 Restatement (Second), Torts § 552C, p. 141 (1977); 3
Restatement (Second), supra, § 524A, p. 51.
In Johnson, this court upheld the trial court’s verdict
for the plaintiffs on their innocent misrepresentation
claim. Johnson v. Healy, supra, 176 Conn. 102–103. The
plaintiffs had relied on affirmative statements by the
defendant that ‘‘the house was made of the best mate-
rial, that he had built it, and that there was nothing
wrong with it’’ when deciding to make their purchase.
Id., 98–99. Because strict liability for innocent misrep-
resentation ‘‘is based on principles of warranty’’ that
are clearly established in sales of goods, the court con-
sidered whether such warranty law extended to sales
of real estate. Id., 101–102. The court held that such
an extension was appropriate in this context because
caveat emptor was no longer a barrier to misrepresenta-
tion and warranty law applied in the sale of ‘‘new homes
. . . .’’ Id., 102.
In the present case, the plaintiffs seek to extend liabil-
ity for innocent misrepresentation even further, effec-
tively rendering physicians strictly liable for statements
they make in the course of medical treatment. Unlike
in Johnson, we are not persuaded that these facts dic-
tate an extension of liability.
First, in Connecticut, the tort of innocent misrepresen-
ation generally is governed by § 552C of the Restatement
(Second),12 which requires ‘‘a sale, rental or exchange
transaction with another’’ before liability attaches. See
Gibson v. Capano, supra, 241 Conn. 730 (relying on § 552C
in innocent misrepresentation case involving sale of
property); see also Bartholomew v. Bushnell, 20 Conn.
271, 274 (1850) (sale of horses); Little Mountains Enter-
prises, Inc. v. Groom, 141 Conn. App. 804, 806, 64 A.3d
781 (2013) (sale of real property); Matyas v. Minck,
37 Conn. App. 321, 333, 655 A.2d 1155 (1995) (same).
The commentary to § 552C of the Restatement (Sec-
ond) illuminates this language further, explaining that
it encompasses ‘‘any sale, rental or exchange of land,
chattels, securities or anything else of value, such
as copyrights, patents and other valuable intangible
rights.’’ 3 Restatement (Second), supra, § 552C, com-
ment (c), p. 144; see W. Prosser, Torts (4th Ed. 1971)
§ 107, p. 711 (‘‘a large group of the American courts
have succeeded in prying open the door, and extending
strict liability to express representations made in the
course of other commercial dealings, such as the sale
of land, securities, or patent rights’’ (emphasis added)).
The few courts that have considered this issue have
concluded that the provision of professional services
is not a commercial transaction for purposes of § 552C
of the Restatement (Second). See Adams v. Allen, 56
Wn. App. 383, 385, 393, 783 P.2d 635 (1989) (holding
that ‘‘sale, rental or exchange transaction’’ language in
§ 552C is inapplicable to physician’s representations in
course of prescribing medication), overruled on other
grounds by Caughell v. Group Health Cooperative of
Puget Sound, 124 Wn. 2d 217, 876 P.2d 898 (1994).
Similarly, with respect to other professional services,
the United States District Court for the District of Mas-
sachusetts granted a motion to dismiss when a plaintiff
sought to hold a law firm liable for alleged misrepresen-
tations regarding ‘‘the tax advantages of [an] invest-
ment’’ under a theory of innocent misrepresentation
because the law firm was ‘‘not a party to any sale . . . .’’
Norman v. Brown, Todd & Heyburn, 693 F. Supp. 1259,
1260, 1264–65 (D. Mass. 1988).
In the present case, Mary Beth did not seek out Hines
for the purpose of purchasing a product; instead, as the
complaint alleges, she sought his services in implanting
the pelvic mesh. Therefore, Mary Beth’s purchase of
the mesh was secondary to the main purpose of the
transaction, namely, to seek surgical assistance for her
pelvic organ prolapse. Hines, as a urogynecologist and
a surgeon, did not function primarily as a seller of pelvic
mesh. See Zbras v. St. Vincent’s Medical Center, 91
Conn. App. 289, 294, 880 A.2d 999 (‘‘[t]he transaction
in this case, a surgery, clearly was labeled a service
rather than the sale of a product’’), cert. denied, 276
Conn. 910, 886 A.2d 424 (2005). For these reasons, and
in the absence of any authority cited by the plaintiffs
to the contrary, we conclude that Hines’ provision of
medical services did not qualify as a ‘‘sale, rental or
exchange transaction’’ under § 552C of the Restatement
(Second), and, therefore, a claim for innocent misrep-
resentation does not lie under our existing innocent
misrepresentation precedent.13 Although the plaintiffs
assert that there was a commercial transaction between
the parties, the core of their argument necessarily seeks
to extend liability for innocent misrepresentations out-
side of commercial transactions.
Liability outside of ‘‘a sale, rental or exchange trans-
action’’ is not categorically excluded by the Restate-
ment, as that provision includes a caveat declining to
opine on ‘‘other types of business transactions, in addi-
tion to those of sale, rental and exchange, in which strict
liability may be imposed for innocent misrepresenta-
tion under the conditions stated in [§ 552C].’’14 3 Restate-
ment (Second), supra, § 552C, caveat, pp. 141–42; see
also E. & F. Construction Co. v. Stamford, 114 Conn.
250, 257–59, 158 A. 551 (1932) (building contractor
could recover because of town’s innocent misrepre-
sentation of amount of rock that contractor would be
required to excavate under contract for services). As a
result, we next consider whether liability for innocent
misrepresentations should be extended to statements
made during the provision of medical services.
The plaintiffs argue that, ‘‘[i]f someone can be held
liable for innocent misrepresentation in the sale of a
horse, what possible reason is there to immunize a
doctor—who owes a fiduciary duty to his patient—for
similar omissions?’’ In addition, they argue that General
Statutes § 52-572m (b),15 the statute that governs prod-
uct liability claims, permits recovery for personal injury
damages from innocent misrepresentations. The defen-
dants counter that personal injury damages are more
appropriately obtained from malpractice actions that
lie in negligence rather than in strict liability. They posit
that ‘‘[i]t is not difficult to imagine the mischief that
can potentially ensue if, rather than having to prove a
medical malpractice case through expert testimony, a
plaintiff could potentially recover some or all of the
same damages by asserting instead that the alleged
harm that was suffered at the hands of the physician
was due to ‘innocent misrepresentation,’ in other words
strict liability for the doctor not knowing before the
procedure was undertaken that the outcome would be
unfavorable.’’ We agree with the defendants and con-
clude that strict liability should not extend to innocent
misrepresentations made during the provision of medi-
cal services in this instance.
We initially note that the few courts that have consid-
ered this issue have uniformly declined to hold physi-
cians strictly liable for statements made in the course
of medical treatment. See Christensen v. Thornby, 192
Minn. 123, 126, 255 N.W. 620 (1934) (declining to hold
surgeon strictly liable for representations in absence
of negligence or fraudulent intent); Black v. Gundersen
Clinic, Ltd., 152 Wis. 2d 210, 214, 448 N.W.2d 247 (App.)
(‘‘[w]e have not recognized the imposition of liability
upon a doctor under the strict liability doctrine based
upon misrepresentation’’), review denied, 449 N.W.2d
276 (Wis. 1989). Unlike product sellers, the medical
profession requires the exercise of a highly particular-
ized skill and is often accompanied by medical opinions
rather than statements of fact.16 That is not to say that
a physician can never make a false statement of fact,
because, if and when he or she does, a patient may sue
the physician for misrepresentation. See, e.g., Doe v.
Cochran, 332 Conn. 325, 342–45, 210 A.3d 469 (2019);
Duffy v. Flagg, 279 Conn. 682, 697, 905 A.2d 15 (2006).
But, on the facts presented by this case, the plaintiffs
have not pointed to any persuasive policy reason for
why this current misrepresentation scheme is insuffi-
cient and should be extended to include innocent mis-
representations.
The plaintiffs argue, however, that public policy per-
mits the recovery of damages for personal injuries
resulting from innocent misrepresentations because
such claims are permitted as product liability claims
under § 52-572m (b). See, e.g., Doe v. Hartford Roman
Catholic Diocesan Corp., 317 Conn. 357, 438, 119 A.3d
462 (2015) (legislature has ‘‘primary responsibility in
pronouncing the public policy of our state’’ (internal
quotation marks omitted)). We disagree. First, the fact
that the legislature included the types of damages per-
mitted in a product liability claim in the first sentence
of the statute does not suggest that every theory in the
following sentence permits such damages in any case
against any defendant that implicates a defective prod-
uct. See footnote 15 of this opinion (quoting text of
§ 52-572m (b)). Second, and most significant, the plain-
tiffs did not assert a product liability claim against Hines
in this case. Thus, even if we assume without deciding
that personal injury damages are permitted for innocent
misrepresentation claims in a product liability context,
this would be of no consequence in the present case.
Finally, the plaintiffs have not presented any author-
ity applying strict liability for misrepresentations to
medical services. This is likely because such strict liabil-
ity for misrepresentations is doctrinally inconsistent
with the existing framework governing claims against
physicians arising from acts of omission or commission
during physician-patient communications. Under the
doctrine of informed consent, a physician must ‘‘pro-
vide the patient with that information which a reason-
able patient would have found material for making a
decision whether to embark upon a contemplated
course of therapy.’’ (Internal quotation marks omitted.)
Duffy v. Flagg, supra, 279 Conn. 691. Permitting a
patient to sue for innocent misrepresentation would
drastically alter this standard by rendering a physician
liable for any inaccuracies that may be discovered in
the future, not only those a reasonable patient would
have found material at the time. This is inconsistent
with the ‘‘numerous cases holding that a doctor is not
liable for failing to warn a patient of risks flowing from
an unknown and unknowable condition.’’ Latham v.
Hayes, 495 So. 2d 453, 461 (Miss. 1986) (Anderson, J.,
dissenting).17 Because a reasonable patient could not
expect to be informed of currently unknown risks, we
decline to replace this state’s informed consent action
with one that would make physicians strictly liable for
innocent statements made in the course of treatment.18
Accordingly, we conclude that the Appellate Court
properly upheld the trial court’s decision to direct a
verdict on the plaintiffs’ innocent misrepresentation
claim.19
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* April 15, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
For the purpose of simplicity, we refer to each of the plaintiffs individu-
ally by first name when appropriate.
2
We granted the plaintiffs’ petition for certification to appeal, limited to
the following issues: ‘‘Did the Appellate Court correctly determine that the
trial court did not improperly rule that the journal articles, offered to prove
notice, were inadmissible as hearsay?’’ And ‘‘[d]id the Appellate Court cor-
rectly conclude that the theory of innocent misrepresentation is not applica-
ble in the present case and that the trial court properly directed a verdict
in favor of the defendants on this claim?’’ Farrell v. Johnson & Johnson,
330 Conn. 944, 944–45, 197 A.3d 389 (2018).
3
The plaintiffs withdrew the action as to the defendant American Medical
Systems, Inc., in July, 2015, and as to the remaining defendants, Johnson &
Johnson, Ethicon, Inc., Ethicon Women’s Health and Urology, Gynecare, A
Division of Ethicon, Inc., and Stamford Hospital, in January, 2016. Accord-
ingly, all references herein to the defendants are to Hines and Urogynecology
and Pelvic Surgery, LLC, and we refer to each individually by name when
appropriate.
4
At the hearing on the articles’ admissibility, the trial court and the plain-
tiffs’ counsel engaged in the following colloquy:
‘‘The Court: I think that these are hearsay documents. . . . And the fact
that they’re being described as being offered for notice, I think that [the
defendants’] most recent brief is exactly on point with my thinking; that is,
that these [articles] are actually being offered for the truth of the matter
contained. . . . So, under the circumstances, I think these [articles] are
hearsay, and I don’t see their existence, the fact [that] they exist, being
relevant to any issue we have in front of us. And, for those reasons, I’m
going to sustain the objection to the offer of these articles. . . . The fact
[that] a medical controversy exists, the fact that, in these various authors’
opinions, inadequate study has been done, that physicians have an obligation
to advise their patients that inadequate study has been done, that there’s
not a scientific basis for the use of this mesh product and implantation
of this product into patients absent such scientific basis and study. I’m
understanding that’s the thrust of the case, but that’s the truth of the matter
contained in each of these three articles. That’s why I think that they are
hearsay.
‘‘[The Plaintiffs’ Counsel]: The fact [that] there was a controversy in the
medical community, the claim is that’s a fact that should have been related
to [Mary Beth].
‘‘The Court: Don’t you see that’s the truth of the matter contained?
‘‘[The Plaintiffs’ Counsel]: No. A publication in a proceeding saying there’s
a controversy here, it’s basically a declaration of fact. The fact it was pub-
lished shows there is a controversy.
‘‘The Court: No, it doesn’t. It shows [that] the articles are published. And,
if the question was before us whether these articles were published and
that [was] a relevant fact, but not the topics within the articles, not the
content of the articles. That’s the truth of the matter contained. That the
articles exist and that you perceive them to create a medical controversy
that Hines should have informed [Mary Beth] of, I understand, but that
exactly looks to the truth of the matter contained in these [articles] that
there is such a controversy, that he does have such an obligation. . . . I
do understand that the purpose of this is to show that three articles exist
in journals that he received before he instructed [Mary Beth] as to the risk,
benefits and alternatives, and that he either read these and forgot [about]
them or didn’t read them, and that he had an opportunity to read them. Had
he read them, the content of those [articles] would have alerted him that
there was a medical controversy or inadequate scientific basis for the implan-
tation of this mesh product . . . here. That seems to me to be the heart of
the question as to the adequacy of the instruction. You’re saying to me [that]
the content of these articles is such that [Hines] should have warned her
of [their] contents. I think that’s the classic definition of, we’re not offering
them for the existence of those but, rather, for the truth of the matter
contained within them, that there is a controversy.’’
5
The plaintiffs contend that, although the Appellate Court utilized the
correct legal standard initially, the court then improperly applied abuse of
discretion review when it stated: ‘‘The court properly determined that the
articles were inadmissible hearsay and did not fall within a hearsay exception
and, accordingly, did not abuse its discretion in excluding the articles from
evidence.’’ Farrell v. Johnson & Johnson, supra, 184 Conn. App. 699. We
disagree. We discuss the difficulty in applying this standard to the present
case in footnote 6 of this opinion.
6
The standard of review set forth in Saucier can complicate appellate
review of a trial court’s hearsay determination. We note that Justice Norcott
presciently foreshadowed this difficulty in his concurring opinion in Saucier.
He disagreed with the majority’s conclusion that ‘‘whether a statement is
hearsay require[s] determinations about which reasonable minds may not
differ; there is no judgment call by the trial court, and the trial court has
no discretion to admit hearsay in the absence of a provision providing for
its admissibility.’’ (Internal quotation marks omitted.) State v. Saucier, supra,283 Conn. 240 (Norcott, J., concurring in part). Instead, according to Justice
Norcott, trial courts’ hearsay determinations should receive appellate defer-
ence because they often involve the ‘‘very kind of case and fact sensitive
determination for which a trial court is particularly well suited.’’ Id., 241
(Norcott, J., concurring in part).
7
The trial court’s other rulings reflected the importance of notice to the
admissibility of evidence that otherwise would be hearsay. For example,
the trial court admitted a Food and Drug Administration (FDA) public
health notification into evidence for notice purposes. The FDA notification
discussed ‘‘[c]omplications [a]ssociated with [t]ransvaginal [p]lacement of
[s]urgical [m]esh’’ for pelvic organ prolapse and stress urinary incontinence
and recommended certain actions for physicians. During the plaintiffs’ exam-
ination of Hines, the plaintiffs established that he was aware of and had
read that FDA notification, although he was not sure when he had first seen
it. In the court’s evidentiary ruling, it explained that the exhibit would be
admitted because it showed ‘‘the effect on the doctor and what he knew
or should have known with respect to the status of this type of surgical
procedure so that he could adequately advise his patients as to the risks,
benefits, and alternatives.’’
8
Accordingly, even if we assume, without deciding, that the trial court
incorrectly concluded that the two articles were hearsay, we could uphold
its evidentiary ruling on the alternative ground; see, e.g., State v. Burney,
288 Conn. 548, 560, 954 A.2d 793 (2008); that the plaintiffs failed to lay a
proper foundation to prove their relevance. See Price v. Rochford, 947 F.2d
829, 833 (7th Cir. 1991) (‘‘no hearsay problem’’ because articles reporting
plaintiff’s bankruptcy were not offered for their truth, but articles had low
probative value because plaintiff ‘‘offered no specific facts tending to show
that any of the defendants read these articles or even that they read the
newspapers in which the articles appeared’’); Evans v. Hood Corp., 5 Cal.
App. 5th 1022, 1044, 211 Cal. Rptr. 3d 261 (2016) (trial court properly excluded
nonhearsay evidence offered for notice purposes because plaintiff failed to
establish that defendants knew about documents, which had low proba-
tive value).
9
The defendants made both a ‘‘motion for judgment at the end of [the]
plaintiffs’ case-in-chief and . . . [a motion] at the end of the evidentiary
portion of the case for [a] directed verdict.’’
10
In granting the defendants’ motions, the trial court indicated that it
would not submit the plaintiffs’ innocent misrepresentation claim to the
jury because the plaintiffs had failed to produce case law establishing the
claim’s applicability in the informed consent context. The trial court also
stated that it had performed its own research and could not reconcile the
existing case law on innocent misrepresentation and its damages calcula-
tions with the claims in the present case.
11
Procedurally, the plaintiffs argue that the trial court improperly allowed
the defendants to raise the issue without ever raising the inapplicability of
an innocent misrepresentation claim in any dispositive pretrial motions. The
plaintiffs also claim that the trial court sua sponte raised the inapplicability
of innocent misrepresentation because the defendants argued only that there
was insufficient evidence to support a misrepresentation claim. In regard
to any procedural impropriety, the defendants contend that they did raise
‘‘the legal insufficiency of the plaintiffs’ claims by way of a special defense’’
in their answer because the trial court had earlier precluded them from
filing a motion to strike.
The defendants moved for a directed verdict on several issues, including
the insufficiency of the evidence to support the plaintiffs’ claim of innocent
misrepresentation, on January 14, 2016. After the defendants’ motion, the
trial court discussed the inapplicability of innocent misrepresentation and
heard arguments from the parties. The next day, the court directed a verdict
on innocent misrepresentation in the absence of any supporting case law
from the plaintiffs. This was not improper. Motions for directed verdicts
are properly made at the close of a plaintiff’s evidence, which the defendants
did here. Practice Book § 16-37; see also State v. Perkins, 271 Conn. 218,
271, 856 A.2d 917 (2004) (Katz, J., dissenting) (‘‘a motion for a directed
verdict [is] made after the close of the plaintiff’s case in a civil trial’’).
The trial court did not improperly raise the issue sua sponte but, instead,
considered the applicability of innocent misrepresentation after the defen-
dants moved for a directed verdict. The defendants’ argument regarding the
sufficiency of the evidence was a proper mechanism under which the trial
court could consider the legal sufficiency of the plaintiffs’ claim. See Fisher
v. Big Y Foods, Inc., 298 Conn. 414, 440, 3 A.3d 919 (2010) (‘‘if, as a matter
of law, [a claim for innocent misrepresentation] was not implicated by the
circumstances of this case, then the trial court was required to direct a
verdict in the defendant’s favor’’). Although this issue might have been more
efficiently resolved as a pretrial matter, the trial court did not improperly
direct the verdict on the plaintiffs’ innocent misrepresentation claim
because, as a matter of law, the court could not submit this claim to the jury.
12
Section 552C of the Restatement (Second) of Torts provides: ‘‘(1) One
who, in a sale, rental or exchange transaction with another, makes a misrep-
resentation of a material fact for the purpose of inducing the other to act
or to refrain from acting in reliance upon it, is subject to liability to the
other for pecuniary loss caused to him by his justifiable reliance upon the
misrepresentation, even though it is not made fraudulently or negligently.
‘‘(2) Damages recoverable under the rule stated in this section are limited
to the difference between the value of what the other has parted with and
the value of what he has received in the transaction.’’ 3 Restatement (Sec-
ond), supra, § 552C, p. 141.
13
This conclusion by no means creates a per se rule that physicians may
never be held liable for innocent misrepresentations of fact under § 552C
of the Restatement (Second). There are a growing number of situations in
which a physician may be a party to a commercial transaction as the business
of healthcare evolves. See L. Churchill, ‘‘The Hegemony of Money: Commer-
cialism and Professionalism in American Medicine,’’ 16 Cambridge Q. Health-
care Ethics 407, 410–12 (2007) (discussing commercialization of practice of
medicine). But, outside of the fact that Hines routinely performs such surger-
ies, the plaintiffs have not presented any persuasive reason that transforms
Hines’ provision of medical services into a ‘‘sale, rental or exchange transac-
tion . . . .’’
14
Comment (g) to § 552C of the Restatement (Second) of Torts explains
the caveat: ‘‘There have, however, been occasional decisions in which the
same rule has been applied to other types of business transactions, such
as the issuance of an insurance policy or the inducement of an investment
or a loan. . . . The law appears to be still in a process of development and
the ultimate limits of the liability are not yet determined.’’ 3 Restatement
(Second), supra, § 552C, comment (g), p. 145; see also A. Hill, ‘‘Damages
for Innocent Misrepresentation,’’ 73 Colum. L. Rev. 679, 704 (1973) (‘‘[a]s
to why cases like this are relatively uncommon, one may suppose that in
some significant classes of contracts, such as those for services, representa-
tions of fact are infrequent as compared with representations of opinion;
and that in other significant classes, such as those for the sale of real
property, the extensive use of form contracts results in severe obstacles to
proof of such representations, if made’’).
15
General Statutes § 52-572m (b) provides: ‘‘ ‘Product liability claim’
includes all claims or actions brought for personal injury, death or property
damage caused by the manufacture, construction, design, formula, prepara-
tion, assembly, installation, testing, warnings, instructions, marketing, pack-
aging or labeling of any product. ‘Product liability 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 negligent or innocent.’’
(Emphasis added.)
16
Actions for fraudulent and negligent misrepresentation in Connecticut
require the representation to be one of fact. See Glazer v. Dress Barn, Inc.,
274 Conn. 33, 73, 873 A.2d 929 (2005) (‘‘an action for negligent misrepresenta-
tion requires the plaintiffs in the present case to prove that [the defendant]
made a misrepresentation of fact’’); Crowther v. Guidone, 183 Conn. 464,
467, 441 A.2d 11 (1981) (‘‘[i]t is true that our cases have consistently required
that, as one element of fraudulent misrepresentation, a representation be
made as a statement of fact’’). We need not decide, in this case, whether a
false statement made as part of a medical opinion could support a cause
of action for misrepresentation. See, e.g., Van Leeuwan v. Nuzzi, 810 F.
Supp. 1120, 1124 (D. Colo. 1993); Custodio v. Bauer, 251 Cal. App. 2d 303,
314, 59 Cal. Rptr. 463 (1967); see also F. Harper & M. McNeely, ‘‘A Synthesis
of the Law of Misrepresentation,’’ 22 Minn. L. Rev. 939, 951–52 (1938) (dis-
cussing opinion versus fact distinction).
17
Cf. Howard v. University of Medicine & Dentistry of New Jersey, 172
N.J. 537, 553–54, 800 A.2d 73 (2002) (‘‘we are not convinced that our common
law should be extended to allow a novel fraud or deceit-based cause of action
in this doctor-patient context that regularly would admit of the possibility
of punitive damages, and that would circumvent the requirements for proof
of both causation and damages imposed in a traditional informed con-
sent setting’’).
18
The plaintiffs argue that informed consent actions do not displace claims
for misrepresentation against physicians such as those brought under Duffy
v. Flagg, supra, 279 Conn. 682. We disagree. In Duffy, this court likely was
not envisioning liability for innocent misrepresentations about the treatment
to be rendered, as it specifically was considering misrepresentations regard-
ing ‘‘the physician’s skills, qualifications, or experience,’’ which are topics
uniquely within the physician’s knowledge. Id., 697. Put differently, it is
rather difficult to contemplate that a physician would or could innocently
misrepresent his or her own experience in a material way.
19
Although our case law does not expressly preclude damages for personal
injuries arising from innocent misrepresentations, we observe that such
liability would be inappropriate in the present case. ‘‘The defendant may
be subjected to liability for innocent misrepresentation causing stand-alone
economic harm when the defendant undertakes to guarantee the truth of
the matter represented, that is, when his representation is a warranty. Where
a warranty is breached, the plaintiff may recover the contract or loss of
bargain measure of damages.’’ (Emphasis added.) 3 D. Dobbs et al., The
Law of Torts (2d Ed. 2011) § 669, p. 661; see 3 Restatement (Second), supra,
§552C, comment (f), p. 145 (noting that innocent misrepresentation damages
‘‘are restitutionary in nature’’ and ‘‘in effect [restore the plaintiff] to the
pecuniary position in which he stood before the transaction,’’ and that,
because ‘‘the defendant’s misrepresentation is an innocent one, he is not
held liable for other damages; specifically, he is not liable for benefit of
the bargain or for consequential damages’’ (emphasis added)); see also
Johnson v. Healy, supra, 176 Conn. 106 (‘‘[t]he proper test for damages was
the difference in value between the property had it been as represented
and the property as it actually was’’). Thus, it appears that this damages
calculation would not provide the plaintiffs with any significant relief
because the damages for personal injuries stemming from the mesh would
be limited to the difference between what the plaintiffs paid for the mesh
product and the value of the mesh retained.