Boone v. Boehringer Ingelheim Pharmaceuticals, Inc.

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GERALYNN BOONE, EXECUTRIX (ESTATE
OF MARY BOONE) v. BOEHRINGER
INGELHEIM PHARMACEUTICALS,
INC., ET AL.
(SC 20200)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Vertefeuille, Js.
Syllabus
The plaintiff, the executrix of the estate of the decedent, M, sought to
recover damages from the defendants, alleging that a certain brand-
name anticoagulant medication they had designed, manufactured or sold
wrongfully caused M’s death. The defendants had received approval
from the United States Food and Drug Administration to market the
medication, and, for some time, M took the medication without signifi-
cant side effects. Several years later, M suffered a gastrointestinal bleed
and subsequently died. The plaintiff alleged that the defendants negli-
gently failed to give adequate warnings, directions, and instructions to
guard against the risk of bleeding caused by the medication and to
investigate the benefits of establishing a therapeutic range for its admin-
istration. The plaintiff also alleged that the medication was defectively
designed due to the absence of a reversal agent. The trial court granted
the defendants’ motion for summary judgment on the claim relating to
the absence of a reversal agent, concluding, inter alia, that it was pre-
empted by federal law. Thereafter, the plaintiff filed a request to charge,
asking the court to instruct the jury that the defendants had improperly
failed to maintain certain materials for the purpose of discovery, specifi-
cally, that they had lost or destroyed files of a former employee, L, while
litigating prior federal actions relating to the medication, and that the
jury could draw an adverse inference from the loss or destruction of
such materials. At the conclusion of the trial, the court issued a spoliation
instruction. The trial court also granted in part the defendants’ motion
in limine, seeking to exclude evidence, testimony, or argument regarding
their failure to test reagrading a certain dose of the medication on the
ground that a failure to test claim was preempted by federal law. The
jury returned a verdict for the defendants, finding that, although the
defendants negligently failed to give adequate warnings, directions, and
instructions to guard against the risk of bleeding caused by the medica-
tion, the plaintiff failed to prove that the defendants’ conduct caused
M’s death. The trial court rendered judgment thereon for the defendants,
from which the plaintiff appealed. Held:
1. The trial court did not abuse its discretion in excluding evidence and
arguments relating to the issue of spoliation, as the doctrine of induced
error precluded the plaintiff from making that claim: the plaintiff repre-
sented during argument on her request to charge regarding the defen-
dants’ failure to maintain L’s files that the requested instruction would
obviate the need to introduce evidence relating to spoliation and that
the instruction itself, together with evidence introduced at trial relating
to L’s involvment in the development of the medication, would ade-
quately provide the jury with the information it would need to draw an
adverse inference against the defendants; accordingly, the plaintiff hav-
ing had the opportunity to introduce evidence relating to L’s involvement
in developing the medication, having asked the court to give the
requested spoliation instruction, and the court having done so in reliance
on the plaintiff’s representations, the plaintiff could not prevail on the
ground that opening statements and evidence informing the jury about
the defendants’ loss or destruction of L’s files was necessary to put the
requested instruction in an appropriate context.
2. The trial court did not abuse its discretion in precluding the plaintiff
from introducing, on rebuttal, an excerpt from the deposition of C, the
defendants’ senior vice president for clinical development; the court
correctly concluded that the proffered excerpt was not proper rebuttal
because C was not discussing a situation in which a person’s gastrointes-
tinal bleed had resolved prior to his or her death but, rather, was dis-
cussing only that a gastrointestinal bleed can indirectly lead to death, and
such a broad statement did not contradict the more precise testimony
of the defendants’ experts that M’s death was caused by other medical
conditions rather than M’s gastrointestinal bleed, which had resolved
more than two weeks before M’s death.
3. The trial court properly granted the defendants’ motion for summary
judgment on the plaintiff’s claim relating to the defendants’ failure to
market a reversal agent for its medication, as the plaintiff’s claim was
preempted by federal law: five years after the medication was approved
by the Food and Drug Administration, and after M’s death, the defendants
obtained approval to market a chemical reversal agent for the medica-
tion, and, in order to have cured the design defect alleged by the plaintiff,
the defendants would have had to bring the reversal agent to market
before M’s gastrointestinal bleed, and, because there was no dispute
that the reversal agent was not approved by the Food and Drug Adminis-
tration until after the incident that gave rise to the plaintiff’s design
defect claim, the defendants could not have satisfied their alleged state
law duty to M without marketing an unapproved drug in violation of
federal law; moreover, the plaintiff’s assertion that it was technologically
feasible to develop the reversal agent before M’s death was insufficient
to preclude preemption, as that fact was inapposite to the issue of
whether marketing the reversal agent prior to M’s gastrointestinal bleed
would have required the Food and Drug Adminitration’s special permis-
sion and assistance, and the possibility that that agency would have
looked favorably on an earlier application for approval of the reversal
agent did not alter the fact that, at the time of M’s death, the defendants
were precluded from marketing the reversal agent under federal law.
4. The trial court did not commit reversible error when it issued a curative
instruction to the jury after closing arguments that it could not hold the
defendants liable for failing to conduct tests regarding a particular dose
of the medication that were described in a particular exhibit; contrary
to the plaintiff’s claim, the defendants did not open the door to the
plaintiff’s use of that exhibit during closing argument, the trial court’s
instruction merely precluded the jury from considering a single exhibit
to support a particular claim that the court had determined was pre-
empted by federal law, and the plaintiff was not unfairly prejudiced, as
the trial court’s curative instruction was brief, contained no explicit
reprimand, and was conveyed to the jury with reasonably measured
language.
Argued December 19, 2019—officially released May 4, 2020*
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of an allegedly defective product
designed, manufactured or sold by the defendants, and
for other relief, brought to the Superior Court in the
judicial district of Hartford, Complex Litigation Docket,
where the court, Moll, J., granted in part the defendants’
motions for summary judgment and rendered judgment
thereon; thereafter, the case was tried to the jury; ver-
dict and judgment for the defendants, from which the
plaintiff appealed. Affirmed.
Brenden P. Leydon, with whom were Neal L. Moskow
and Kelly A. Koehler, pro hac vice, and, on the brief,
Richard I. Nemeroff, pro hac vice, for the appellant
(plaintiff).
Paul W. Schmidt, pro hac vice, with whom were
Patrick M. Fahey, Gregory Halperin and Michael X.
Imbroscio, pro hac vice, and, on the brief, Phyllis A.
Jones, pro hac vice, for the appellees (defendants).
Opinion
KAHN, J. The plaintiff, Geralynn Boone, the executrix
of the estate of Mary Boone (decedent), brought the
present action against the defendants, Boehringer Ingel-
heim Pharmaceuticals, Inc., and Boehringer Ingelheim
International, GmbH, alleging, inter alia, that an oral
anticoagulant medication, Pradaxa, wrongfully caused
the decedent’s death. A jury returned a verdict in favor
of the defendants, from which the plaintiff now
appeals.1 The plaintiff claims that the trial court improp-
erly (1) precluded evidence and arguments related to
spoliation, (2) prevented the plaintiff from using an
excerpt from a particular deposition on rebuttal, (3)
granted the defendants’ motion for summary judgment
on a design defect claim relating to the absence of a
reversal agent, and (4) issued a curative instruction to
the jury after closing arguments. We disagree with each
of these claims and, accordingly, affirm the judgment
of the trial court.
The following facts and procedural history are rele-
vant to the present appeal. After experiencing intermit-
tent heart palpitations in 2003, the decedent was diag-
nosed with nonvalvular atrial fibrillation. That condi-
tion may cause the formation of blood clots and, as a
result, substantially increased the decedent’s risk of
suffering an ischemic stroke. In order to reduce that
risk, Jeffrey Fierstein, a cardiologist, prescribed an anti-
coagulant named warfarin to the decedent. The use of
warfarin requires dietary restrictions, frequent blood
testing, and dose titration to keep the concentration
of medication present in the bloodstream within an
accepted therapeutic range. Like all anticoagulants,
warfarin increases the risk of uncontrolled bleeding.2
In October, 2010, the defendants received approval
from the United States Food and Drug Administration
(FDA) to begin selling dabigatran etexilate, an anticoag-
ulant marketed under the brand name Pradaxa. Unlike
warfarin, Pradaxa requires no dietary restrictions and
was approved for use without blood monitoring or dose
titration. In November, 2010, Fierstein met with the
decedent and recommended switching from warfarin
to Pradaxa. Fierstein testified at trial that the decedent
had been tolerating warfarin well and that he had rec-
ommended the switch ‘‘out of convenience.’’ The dece-
dent agreed and, for some time, took Pradaxa without
any significant side effects.
On March 5, 2014, the decedent suffered a severe
gastrointestinal bleed and was admitted to a hospital.
The decedent underwent kidney dialysis to remove Pra-
daxa from her blood and was administered multiple
blood transfusions. Although the bleeding stopped three
days later, the decedent’s kidneys began to fail. On March
25, 2014, the decedent died. The death certificate lists
‘‘[a]cute [k]idney [i]njury,’’ ‘‘chronic kidney [d]isease,’’
‘‘[r]etroperitoneal [f]ibrosis,’’ and ‘‘occult neoplasia’’ as
causes of death.3 The death certificate also lists ‘‘[d]abi-
gatran [i]nduced [c]oagulopathy’’ and ‘‘gastrointestinal
bleed’’ as ‘‘significant’’ conditions contributing to the
decedent’s death. (Emphasis omitted.) No autopsy was
performed.
The plaintiff subsequently commenced the present
action, alleging, inter alia, that (1) the defendants negli-
gently failed to give adequate warnings, directions, and
instructions to guard against the risk of bleeding caused
by Pradaxa, (2) the defendants negligently failed to
test, study, and investigate the benefits of establishing
a therapeutic range for Pradaxa, and (3) Pradaxa was
defectively designed due to the absence of a reversal
agent. On January 24, 2018, the trial court granted the
defendants’ motion for summary judgment on the claim
relating to the absence of a reversal agent, concluding,
among other things, that it was preempted by federal
law.4
The plaintiff filed a pretrial motion asking the trial
court to instruct the jury that the defendants had
improperly failed to maintain certain relevant materials
for the purpose of discovery. Specifically, the plaintiff
claimed that the defendants had lost or destroyed files
of one of its former employees, Dr. Thorsten Lehr, while
litigating previous federal actions relating to Pradaxa.
The trial court, applying the test set forth in Beers v.
Bayliner Marine Corp., 236 Conn. 769, 777–79, 675 A.2d
829 (1996), concluded that a spoliation instruction was
warranted and, over the defendants’ objection, provided
such an instruction to the jury at the end of the trial.
See footnote 6 of this opinion.
The jury returned a verdict, finding that, although
the defendants had negligently failed to give adequate
warnings, directions, and instructions to guard against
the risk of bleeding caused by Pradaxa, the plaintiff
had failed to prove that the defendants’ wrongful con-
duct caused the decedent’s death. The trial court subse-
quently rendered judgment in favor of the defendants,
from which the plaintiff appealed. Additional facts and
procedural history will be set forth as necessary.
I
The plaintiff first claims that the trial court improp-
erly precluded certain evidence and arguments related
to the issue of spoliation.5 Specifically, the plaintiff pos-
its that the absence of such information deprived the
jury of the context necessary to decide whether to draw
an adverse inference against the defendants, as per-
mitted by the trial court’s spoliation instruction. In
response, the defendants argue that the trial court’s
limitations in this regard were proper.6 For the reasons
that follow, we decline to conclude that the trial court
abused its discretion by precluding evidence and argu-
ments relating to the issue of spoliation in the pres-
ent case.
The following additional facts and procedural history
are relevant to our consideration of this claim. In 2012,
certain federal litigation relating to Pradaxa was cen-
tralized in the Southern District of Illinois pursuant to
28 U.S.C. § 1407, and a federal district court judge, David
R. Herndon, was appointed to preside. In re Pradaxa
(Dabigatran Etexilate) Products Liability Litigation,
883 F. Supp. 2d 1355, 1355–56 (J.P.M.L. 2012). Various
discovery disputes in that consolidated federal litigation
led to motions seeking sanctions against the defen-
dants. See In re Pradaxa (Dabigatran Etexilate) Prod-
ucts Liability Litigation, Docket No. 3:12-MD-02385
(DRH), 2013 WL 6486921, *1 (S.D. Ill. December 9, 2013).
As a result of those disputes, on September 18, 2013,
Judge Herndon issued a mandatory injunction requiring
the defendants to conduct ‘‘an immediate search for
any yet undisclosed materials . . . .’’ (Internal quota-
tion marks omitted.) Id., *3–5. During a subsequent
deposition, the plaintiffs in that proceeding discovered
that Lehr was a potentially relevant source of additional
information and, as a result, requested production of
his custodial file. Id., *9. Approximately one month after
that deposition, the defendants informed Judge Hern-
don that Lehr had not been identified as a custodian
and that, as a result, some of his documents and files
had been destroyed. Id.
In reviewing a subsequent motion for sanctions,
Judge Herndon found that Lehr ‘‘was a prominent scien-
tist . . . that played a vital role in researching Pra-
daxa,’’ that the defendants were familiar with his work,
and that the evidence on record in that case would
‘‘lead a reasonable person to infer a motive for the
defendant[s] to abstain from placing a litigation hold
on [Lehr’s] materials . . . .’’ Id., *12. On the basis of
these findings, the court concluded that the defendants
had failed to maintain Lehr’s files ‘‘in bad faith.’’7 Id.,
*18. This conduct, together with certain other discovery
violations, led Judge Herndon to impose immediate sanc-
tions on the defendants, including a substantial mone-
tary fine and an order compelling the attendance of vari-
ous corporate employees at depositions in the United
States. Id., *20. In a separate ruling, Judge Herndon also
specifically put the defendants on notice that additional
sanctions, including an adverse inference instruction,
would be considered at the close of discovery and
would ‘‘apply to any actions pending before [that] court
at [that] time . . . .’’ In re Pradaxa (Dabigatran Etexi-
late) Products Liability Litigation, United States Dis-
trict Court, Docket No. 3:12-MD-02385 (DRH), MDL No.
2385, CMO 50-1 (S.D. Ill. December 18, 2013), available
at https://www.ilsd.uscourts.gov/Documents/mdl2385/
cmo50-1.pdf (last visited May 1, 2020). The defendants
challenged Judge Herndon’s order by filing a petition
for a writ of mandamus in the United States Court of
Appeals for the Seventh Circuit. In re Petition of Boeh-
ringer Ingelheim Pharmaceuticals, Inc., 745 F.3d 216–
17 (7th Cir. 2014). In that proceeding, the Seventh Cir-
cuit concluded that the order compelling the deposi-
tion of corporate employees in the United States was
improper. Id., 219–20. In reaching this conclusion, the
Seventh Circuit expressly declined to revisit the factual
findings underlying the District Court’s finding of bad
faith and its imposition of other sanctions. Id., 218. Fol-
lowing Judge Herndon’s decision, the consolidated fed-
eral litigation settled. See In re Pradaxa (Dabigatran
Etexilate) Products Liability Litigation, United States
District Court, Docket No. 3:12-MD-02385 (DRH) (S.D.
Ill. May 1, 2015), available at https://www.ilsd.uscourts
.gov/documents/mdl2385/MinuteOrder656.pdf (last vis-
ited May 1, 2020).
Notwithstanding the resolution of the consolidated
federal litigation, several cases related to Pradaxa
remained pending in this state. Those cases were placed
onto a single, consolidated docket governed by a series
of case management orders. See In re Connecticut Pra-
daxa Litigation, judicial district of Hartford, Complex
Litigation Docket, Docket No. HHD-CV-13-5036974S.
The trial court in the present case noted that, under
one such order dated July 23, 2015, ‘‘all discovery pro-
pounded and completed in the [consolidated federal
litigation was] deemed propounded and responded to
for purposes of [Connecticut’s consolidated Pradaxa
litigation] docket . . . .’’ That order, which the parties
agreed to be bound by, required the defendants to pro-
vide the plaintiff with all evidence produced during
the course of the consolidated federal litigation, and
provided that all discovery requests and responses in
that proceeding ‘‘shall be deem[ed] served in this court
for purposes of the parties’ respective rights and obliga-
tions with regard thereto.’’
On January 5, 2018, the plaintiff filed a pretrial request
to charge, requesting a spoliation charge relating to,
among other things, the defendants’ failure to maintain
Lehr’s files.8 Relying principally on Judge Herndon’s
finding of bad faith, the plaintiff requested an instruc-
tion indicating that the elements of spoliation had been
met as a matter of law. The defendants objected, and
the trial court heard oral argument on January 29, 2018.
During oral argument, the plaintiff argued that the pre-
sentation of evidence relating to spoliation would be
‘‘time-consuming’’ and ‘‘extraordinarily difficult’’ to put
in context.9 The plaintiff indicated that such an endeavor
would be an unnecessary ‘‘sideshow’’ that would waste
both time and judicial resources. On several occasions,
the plaintiff represented that she would not seek to intro-
duce such evidence, if the court were to conclude, at
the outset of the trial, that she was entitled to the
requested instruction.10
The court then asked the plaintiff the following spe-
cific question: ‘‘[I]f the court granted the requested
charge and you didn’t put on any evidence of Judge
Herndon’s order, et cetera, how would the jury be
equipped to determine whether to draw an adverse
inference? As . . . you know, it’s not mandatory.’’ In
response, the plaintiff stated that the instruction itself
would inform the jury of her claim that the defendants
had ‘‘intentionally . . . or recklessly lost or destroyed’’
documents, including files from Lehr, that were relevant
‘‘to the issues of the benefits of assessing and adjusting
Pradaxa dosing based on blood concentrations . . . .’’
The plaintiff asserted that, armed with such an instruc-
tion and testimony from various witnesses discussing
Lehr, the jury ‘‘would be able to put [the spoliation
issue] in context.’’11
On February 18, 2018, in a comprehensive, written
decision,12 the trial court granted the plaintiff’s request
for a spoliation charge, finding that, in light of the pro-
ceedings before Judge Herndon, the plaintiff had satis-
fied the elements of spoliation set forth in Beers as a
matter of law and was entitled to a jury instruction to
that effect.13 In so doing, the court noted: ‘‘The parties
agreed to be bound by, and not duplicate, the discovery
process that had occurred in the [consolidated federal
litigation]. It necessarily follows that an offending party
who failed to identify a custodian of potentially relevant
evidence and who failed to preserve such evidence in
the underlying proceeding should also be bound by any
judicial findings by the underlying court relating to such
discovery failures. The contention that Judge Herndon’s
discovery related findings should be ignored altogether
smacks of unfairness under the very unusual circum-
stances of the discovery process in [Connecticut’s con-
solidated Pradaxa litigation] docket.’’ The court then
concluded that the ‘‘relitigation of the spoliation issues
relating to . . . Lehr . . . would . . . offend princi-
ples of judicial economy, would create a trial within a
trial, would risk one or more trial counsel being called
as witnesses, and would create possible, if not inevita-
ble, confusion with the jury, who would be presented
with testimony and other evidence (e.g., court orders,
among other things) relating to the [consolidated fed-
eral litigation].’’ See footnote 6 of this opinion.
The following day, the trial court granted a motion
in limine filed by the defendants seeking to exclude
‘‘ ‘evidence, testimony, or argument regarding alleged
spoliation issues’ ’’ relating to Lehr.14 The trial court
based its decision on the plaintiff’s previous representa-
tions that such issues would not need to be presented
to the jury if the court granted, as it did, her request
for a spoliation charge.
On February 23, 2018, the plaintiff filed a motion
asking the court to issue the instruction on spoliation
at the commencement of trial. In that motion, the plain-
tiff also sought permission to ‘‘inform the jury during
opening, at trial, and during closing argument of [the
defendants’] unlawful destruction of critically impor-
tant evidence . . . .’’ On that same day, the defendants
objected, and the trial court heard oral argument. The
court ruled that references to spoliation during opening
statements risked unfair prejudice to the defendants
and, accordingly, exercised its discretion to proscribe
such references. See Practice Book § 15-6. The trial
court also made clear that, although the plaintiff was
free to discuss Lehr’s importance to the case generally,
information relating to the ‘‘destruction’’ of documents
could not be communicated to the jury during the evi-
dentiary portion of the trial in the absence of a witness
with personal knowledge of that event.15 The trial court
noted that the sanction the plaintiff had procured was
powerful. The court was particularly concerned about
the use by the plaintiff’s counsel of the terms ‘‘sanction’’
or ‘‘bad faith’’ because, ‘‘although [it] found as a matter
of law that Judge Herndon’s findings satisfies Beers, he
made findings that go beyond Beers and so he made a
bad faith finding that is not necessary under Beers.’’
(Internal quotation marks omitted.) Finally, the trial
court expressly reserved decision on whether argu-
ments relating to spoliation would be permitted in clos-
ing, noting that it had not yet determined whether it
would give the adverse inference instruction when evi-
dence relating to Lehr was admitted during trial, or
after closing arguments.
Lehr’s involvement in the development of Pradaxa
featured prominently at trial. In his opening statement,
the plaintiff’s counsel told the jury that the defendants
had an interest in suppressing scientific information
showing a ‘‘therapeutic range’’ for Pradaxa because fre-
quent blood testing would place that product at a com-
petitive disadvantage. The plaintiff’s counsel noted, in
particular, that the defendants had pressured one of
their own scientists, Paul Reilly, to remove such infor-
mation from a manuscript relating to dabigatran etexi-
late exposure. The plaintiff’s counsel indicated that cer-
tain corporate documents had identified Lehr as the
‘‘father’’ of that same manuscript and that Reilly had
simply continued Lehr’s work.16 The plaintiff’s counsel
then urged the jury to ‘‘pay close attention to the paper
and how it developed.’’17
One of the plaintiff’s expert witnesses, a pharmacolo-
gist named Laura Plunkett, opined during her testimony
that blood monitoring should have been required for
Pradaxa because, like warfarin, Pradaxa has a particu-
lar therapeutic range that balances the various risks
posed by clots and bleeds. She based her opinion, in
part, on information contained in Reilly’s exposure
response paper. Plunkett then testified that she had
reviewed various communications about the exposure
response paper and that, in her opinion, important sci-
entific information demonstrating a specific therapeutic
range had been suppressed by the defendants in order to
avoid the need for blood monitoring.18 Finally, Plunkett
testified, over the defendants’ objection, that she had
looked for the first draft of the exposure response paper
and had been unable to find that document.19
Our review of the record indicates that, over the
course of the nearly three weeks of trial that followed,
there was only one particular instance in which the
plaintiff proffered, and the trial court excluded, testi-
mony directly relating to the destruction of Lehr’s files.
On that occasion, the plaintiff sought to introduce an
excerpt from a deposition of Andreas Barner, the defen-
dants’ chairman of corporate management, relating gen-
erally to his awareness of the defendants’ failure to
preserve Lehr’s computer. The plaintiff argued that this
excerpt would provide ‘‘bread crumbs’’ to assist the jury
in determining whether to draw an adverse inference
against the defendants. The trial court, however, pre-
cluded admission of that excerpt, concluding that the
information fell ‘‘squarely within’’ its previous rulings
related to spoliation and the adverse inference instruc-
tion.
On the final day of the plaintiff’s case-in-chief, the
defendants filed a motion seeking reconsideration of
the court’s previous decision to charge the jury on the
issue of spoliation. In that motion, the defendants
argued, inter alia, that the plaintiff’s factual basis for
requesting a spoliation charge had been undercut at
trial. See footnote 19 of this opinion. The plaintiff
objected, arguing that the evidence presented to the jury
did not undermine the requested charge. The plaintiff
further claimed that, even if evidence of spoliation was
lacking, precluding the charge on that ground would
be improper in light of the fact that the trial court had
excluded evidence of spoliation during trial. The plain-
tiff noted that the trial court’s ‘‘carefully tailored spolia-
tion charge is an appropriate sanction for [the defen-
dants’] wrongful conduct.’’ The trial court denied the
defendants’ motion.20
The defendants subsequently called Reilly as a wit-
ness during their case-in-chief. During that testimony,
Reilly described the defendants’ efforts to evaluate
blood concentration data, stating that the exposure
response paper had ‘‘gone through . . . multiple itera-
tions’’ and that Lehr had ‘‘initiated . . . dose titration
modeling to see whether . . . he could identify a target
range of dabigatran and a target dose adjustment.’’
Reilly testified that, despite their best efforts, the defen-
dants had not been able to identify a particular thera-
peutic range for Pradaxa and, had such a range been
established, it would have been communicated to physi-
cians. Reilly then indicated that the FDA and the scien-
tific community had reached the same consensus.
On cross-examination, the plaintiff’s counsel ques-
tioned Reilly about a specific e-mail in which Andreas
Clemens, the head of the department of medical affairs
for dabigatran etexilate, referred to Lehr as the ‘‘father’’
of the exposure response paper. (Internal quotation
marks omitted.) That correspondence, which was admit-
ted into evidence as a full exhibit, indicates that Reilly
‘‘took [that paper] over and changed it significantly.’’
In response, Reilly testified that he was personally
unaware of any drafts of the exposure response paper
prior to his own and that Clemens had been ‘‘sadly
misinformed.’’ See also footnotes 15 and 19 of this
opinion.
Following the close of evidence, the plaintiff again
requested permission to inform the jury during closing
argument of the defendants’ spoliation and the impact
it had on the present case. Without such information,
the plaintiff argued, the jury would lack the context
necessary to draw the adverse inference invited by the
court’s instruction. The plaintiff, however, did not prof-
fer the substance of the new or additional information
relating to spoliation that she wanted to use in closing
argument. Rather, she again referenced Lehr’s general
importance to the development of Pradaxa and his
involvement with the exposure response paper. The
trial court ruled that the issue of spoliation would not
be ‘‘fodder for closing argument’’ but expressly noted
that the parties were free to ‘‘mention what [had]
already come into evidence . . . .’’
The plaintiff’s closing argument, in fact, discussed
the evidence relating to Lehr at length. Specifically,
the plaintiff’s counsel repeated the argument that the
defendants had sought to suppress information relating
to a therapeutic range for Pradaxa because blood moni-
toring would put their product at a competitive disad-
vantage. The plaintiff’s counsel emphasized that the
authors of the exposure response paper had explored
the concept of blood monitoring, that Clemens’ e-mail
implied the existence of an early draft manuscript
authored by Lehr, and that such a manuscript had never
been discovered.21 Finally, the plaintiff’s counsel asked
the jury to pay ‘‘close attention’’ to the trial court’s
instructions relating to Lehr and to ‘‘be the judge’’ of
whether such facts were important.
The trial court ultimately issued the following instruc-
tion to the jury relating to spoliation: ‘‘The plaintiff
claims that certain evidence was not available to her
because [the defendants] destroyed or failed to preserve
it, at a time when it had a legal duty to preserve it.
Specifically, [the defendants] destroyed or failed to pre-
serve the desktop computer, laptop computer, Black-
berry phone, and paper files of . . . Lehr, about whom
there was some evidence during the trial, who was a
scientist and employee of [the defendants and] who did
research concerning Pradaxa until he left the company
in September, 2012. The plaintiff contends such evi-
dence is relevant to her claim concerning the benefits
of assessing blood plasma concentrations. I instruct you
that . . . Lehr’s desktop computer, laptop computer,
Blackberry phone, and paper files were not preserved
at a time when [the defendants were] on notice of a
legal duty to preserve them and that the failure to retain
such files was intentional, in the sense that it was not
inadvertent. Our law allows you to draw an adverse
inference that the destroyed evidence would have been
unfavorable to [the defendants]. You may therefore
draw an inference that the evidence that was destroyed
or not preserved would be unfavorable to [the defen-
dants], but you are not required to do so. Understand
that this is not a claim for which you would award
damages; rather, it permits an adverse inference to be
drawn as you consider all the evidence relating to the
plaintiff’s claims. If you choose to draw such an infer-
ence, you may not use the inference to supply the place
of evidence of material facts or to shift the burden
of proof from the plaintiff to [the defendants] on the
plaintiff’s claims, but it may turn the scale when the
evidence is closely balanced. By giving you this instruc-
tion, the court does not mean to place emphasis on this
issue versus any other aspect of the evidence that you
may consider, and the court takes no view as to whether
such an inference should be drawn, as that decision is
for you, the jury, to decide.’’22
Following the jury’s verdict in favor of the defen-
dants, the plaintiff filed a motion to set aside the verdict,
claiming, among other things, that the trial court had
‘‘improperly prevented [her] from informing the jury
of [the defendants’] acts of spoliation and the court’s
sanction regarding the same.’’ The plaintiff argued that
the issue of spoliation was itself relevant and probative
to the defendants’ reckless disregard for consumer
safety. She renewed her claim that the trial court’s
restrictions on opening statements, the admission of
evidence, and closing arguments prevented her from
providing the jury with the context necessary to decide
whether to draw an adverse inference against the defen-
dants. The trial court found this claim to be ‘‘wholly
without merit’’ because the plaintiff, in seeking an
instruction, expressly represented that evidence relat-
ing to spoliation would not need to be presented at
trial. Relying in part on the induced error doctrine,
the trial court denied the motion, concluding that the
plaintiff had found ‘‘purported error in the very
approach for which she successfully advocated.’’
We begin by noting the standard of review and the
general principles of law applicable to the plaintiff’s
claim. ‘‘The trial court possesses inherent discretionary
powers to control proceedings, exclude evidence, and
prevent occurrences that might unnecessarily prejudice
the right of any party to a fair trial.’’ (Internal quotation
marks omitted.) Downs v. Trias, 306 Conn. 81, 102, 49
A.3d 180 (2012). We review the relevant rulings of the
trial court in the present case for an abuse of that
discretion. See, e.g., McBurney v. Paquin, 302 Conn.
359, 378, 28 A.3d 272 (2011) (‘‘[t]he trial court’s ruling
on evidentiary matters will be overturned only upon a
showing of a clear abuse of the court’s discretion’’
(internal quotation marks omitted)); Naughton v.
Hager, 29 Conn. App. 181, 188, 614 A.2d 852, (‘‘[t]he trial
court is vested with broad discretion over the latitude
of the statements of counsel during argument’’), cert.
denied, 224 Conn. 920, 618 A.2d 527 (1992).23 In applying
that standard, ‘‘[w]e [must] make every reasonable pre-
sumption in favor of upholding the trial court’s ruling,
and only upset it for a manifest abuse of discretion.
. . . [Thus, our] review of such rulings is limited to the
questions of whether the trial court correctly applied
the law and reasonably could have reached the conclu-
sion that it did.’’ (Internal quotation marks omitted.)
Filippelli v. Saint Mary’s Hospital, 319 Conn. 113, 119,
124 A.3d 501 (2015).
We agree with the trial court’s assessment that the
present case implicates the doctrine of induced error.
‘‘[T]he term induced error, or invited error, has been
defined as [a]n error that a party cannot complain of
on appeal because the party, through conduct, encour-
aged or prompted the trial court to make the [allegedly]
erroneous ruling. . . . It is well established that a party
who induces an error cannot be heard to later complain
about that error. . . . This principle bars appellate
review of induced nonconstitutional error and induced
constitutional error. . . . The invited error doctrine
rests [on principles] of fairness, both to the trial court
and to the opposing party. . . . [W]hether we call it
induced error, encouraged error, waiver, or abandon-
ment, the result—that the . . . claim is unreview-
able—is the same.’’ (Internal quotation marks omitted.)
Independent Party of CT—State Central v. Merrill, 330
Conn. 681, 724, 200 A.3d 1118 (2019); see also State v.
Fay, 326 Conn. 742, 765 n.22, 167 A.3d 897 (2017) (‘‘a
finding of induced error is supportable when a party’s
claim on appeal will result in an inappropriate ambush
of the trial court’’). With these standards in mind, we
turn to the trial court’s rulings in the present case.
Our review of the record leads us to conclude that
the doctrine of induced error precludes the plaintiff
from claiming that the trial court improperly excluded
opening statements and evidence relating to spoliation.
In response to the plaintiff’s pretrial request for an
adverse inference instruction, the court specifically
asked the plaintiff how the jury would be able decide
whether to draw such an inference without any evi-
dence relating to the underlying conduct. The plaintiff
not only represented to the trial court that the requested
instruction would obviate the need for such evidence;
see footnote 10 of this opinion; but also indicated that
the instruction itself, together with evidence generally
relating to Lehr’s involvement in the development of
Pradaxa, would adequately equip the jury with the infor-
mation it would need to draw an adverse inference
against the defendants.
The trial court afforded the plaintiff broad latitude
to introduce evidence and testimony describing the
nature of Lehr’s work, his research regarding the possi-
ble existence of a therapeutic range, and the scope of
his involvement in the exposure response paper. The
plaintiff used the testimony proffered by Plunkett and
Reilly, in particular, to develop a detailed theory that
Lehr had authored an early version of the exposure
response paper that the defendants had never pro-
duced. The trial court’s instruction clearly stated that
the defendants had failed to preserve Lehr’s files despite
having a legal duty to do so, and that the jury could
choose to infer that the information in those files would
have been adverse to the defendants. Having encour-
aged the trial court to structure the proceeding in this
precise manner, the plaintiff cannot now prevail on the
ground that opening statements and evidence informing
the jury about the defendants’ destruction of Lehr’s files
was, in fact, necessary to put the requested instruction
in an appropriate context. Cf. Ferri v. Powell-Ferri, 317
Conn. 223, 236–37, 116 A.3d 297 (2015) (‘‘Our rules of
procedure do not allow a [party] to pursue one course
of action at trial and later, on appeal, argue that a path
he rejected should now be open to him. . . . To rule
otherwise would permit trial by ambuscade.’’ (Internal
quotation marks omitted.)).
Reaching the opposite conclusion would substan-
tially undercut the grounds on which the trial court
concluded that the plaintiff’s requested instruction was
appropriate in the first instance, including improving
judicial economy, avoiding a trial within a trial, and
preventing confusion of the jurors. The trial court’s
decision to exclude the deposition testimony relating to
Barner’s knowledge regarding the destruction of Lehr’s
computer demonstrates this point. If the plaintiff had
been permitted to lay a trail of ‘‘bread crumbs’’ for the
jury using that testimony, the defendants would have
been entitled to marshal any admissible evidence show-
ing that this same trail should not be followed. Present-
ing such a dispute to the jury would necessitate the
very ‘‘sideshow’’ that the plaintiff had purposefully for-
gone in requesting a spoliation instruction before the
outset of trial.24
Our conclusion that the trial court did not abuse its
discretion by declining to admit evidence that could
have initially been presented at a sanctions hearing also
resolves, in large measure, the plaintiff’s claims relating
to the restrictions that the court imposed on closing
arguments. As this court has previously noted, a trial
court acts well within its broad discretion when it
restricts the scope of an argument ‘‘to prevent comment
on facts that are not properly in evidence . . . .’’ (Inter-
nal quotation marks omitted.) Jackson v. Water Pollu-
tion Control Authority, 278 Conn. 692, 713, 900 A.2d
498 (2006); cf. State v. Weatherspoon, 332 Conn. 531,
551, 212 A.3d 208 (2019) (‘‘[w]hile the privilege of coun-
sel in addressing the jury should not be too closely
narrowed or unduly hampered, it must never be used
as a license to state, or to comment [on], or to suggest
an inference from, facts not in evidence’’ (internal quo-
tation marks omitted)); State v. Lopez, 280 Conn. 779,
803, 911 A.2d 1099 (2007) (‘‘Counsel may comment [on]
facts properly in evidence and [on] reasonable infer-
ences to be drawn from them. . . . Counsel may not,
however, comment on or suggest an inference from
facts not in evidence.’’ (Internal quotation marks omit-
ted.)).25 Because the trial court ruled at the outset that
evidence relating to the conduct underlying Judge Hern-
don’s finding of bad faith would not be admitted or
presented to the jury, we agree with the trial court’s
assessment that such evidence was not proper ‘‘fodder’’
for arguments by counsel.
We note that the plaintiff was not compelled to seek
the benefit of the findings made by Judge Herndon, or
to request an adverse inference instruction as a matter
of law. The plaintiff could have, for example, asked the
trial court to independently review the evidence relating
to the destruction of Lehr’s files and, as is typically the
case, argued that any evidence ultimately admitted at
trial supported a corresponding instruction.26 See Pay-
lan v. St. Mary’s Hospital Corp., 118 Conn. App. 258,
264, 983 A.2d 56 (2009) (discussing whether plaintiff
adduced sufficient evidence at trial to warrant spolia-
tion instruction under Beers). The plaintiff could have
also chosen to pursue still other sanctions available for
discovery misconduct under our rules of practice. See
Practice Book § 13-14. The plaintiff, as a matter of strat-
egy, chose a different path.27 Accordingly, we decline
to conclude that the trial court abused its discretion by
precluding evidence and arguments relating to spolia-
tion in the present case.28
II
The plaintiff next claims that the trial court improp-
erly excluded certain portions of a video recorded depo-
sition of Christopher Corsico, the defendants’ senior
vice president for clinical development, from her case
on rebuttal. The defendants respond by arguing, inter
alia, that the trial court’s ruling was correct because
the proffered testimony did not contradict testimony
presented by their expert witnesses. We agree with
the defendants.
The following additional facts are relevant to our
discussion of this claim. During their case-in-chief, the
defendants called two expert witnesses, Stanley
Schneller, a cardiologist, and Michelle Anderson, a gas-
troenterologist, to testify on the issue of causation.
Schneller testified that the decedent’s gastrointestinal
bleed had resolved three days after she arrived at the
hospital and that a ‘‘multiplicity of other coexisting
medical problem[s]’’ had caused her death. Specifically,
Schneller testified that ‘‘acute kidney injury, chronic
kidney disease, retroperitoneal fibrosis, and occult neo-
plasia’’ directly caused the decedent’s death, and that
those conditions were unrelated to her use of Pradaxa
or her gastrointestinal bleed. See footnote 3 of this
opinion. Anderson’s testimony supported the same con-
clusion.
After the defendants rested, the plaintiff sought to
introduce, as rebuttal, a brief segment from Corsico’s
February, 2014 video recorded deposition. During that
deposition, Corsico was asked: ‘‘[D]o you understand
that there can be a series or a cascade of events that
can ultimately lead to one’s demise that may be precipi-
tated by a gastrointestinal bleed?’’ Corsico answered
in the affirmative. The defendants’ counsel objected,
arguing that the admission of that testimony as rebuttal
would be improper because it did not conflict with
testimony from either Schneller or Anderson. In
response, the plaintiff’s counsel argued that Corsico’s
testimony undercut Schneller and Anderson’s conclu-
sion that, because the decedent’s gastrointestinal bleed
had stopped, it did not cause her death.
The trial court ultimately sustained the defendants’
counsel’s objection, aptly noting: ‘‘I just don’t see how
. . . Corsico’s testimony . . . rebuts testimony by
either . . . Schneller or . . . Anderson because . . .
Corsico, in this [question and answer], was not specifi-
cally asked about a [gastrointestinal] bleed that had
ended; nor were [either] Schneller [or] Anderson asked
[whether it is] possible that a [gastrointestinal] bleed
can lead to a cascade of events that ultimately led to
one’s death.’’
‘‘It is well settled that the admission of rebuttal evi-
dence lies within the sound discretion of the trial court.’’
Gomeau v. Gomeau, 242 Conn. 202, 208, 698 A.2d 818
(1997); see also Practice Book § 15-5 (3). ‘‘The issue on
appeal is not whether any one of us, sitting as the trial
court, would have permitted the disputed testimony to
be introduced. The question is rather whether the trial
court . . . abused its discretion in not allowing the
rebuttal testimony . . . .’’ (Internal quotation marks
omitted.) Id., 209. ‘‘[R]ebuttal evidence is that which
refutes the evidence [already] presented . . . rather
than that which merely bolsters one’s case.’’ (Internal
quotation marks omitted.) State v. Wood, 208 Conn. 125,
139, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S.
Ct. 235, 102 L. Ed. 2d 225 (1988). ‘‘There is no require-
ment that a rebuttal witness must respond to every
alternate theory offered by the defendant . . . a gen-
eral contradiction of the testimony given by the defen-
dant is considered permissible rebuttal testimony.’’29
State v. Gray, 221 Conn. 713, 728, 607 A.2d 391, cert.
denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148
(1992); see also 1 K. Broun, McCormick on Evidence
(7th Ed. 2013) § 4, p. 16 (‘‘the plaintiff . . . is confined
to testimony refuting the defense evidence, unless the
trial judge in her discretion permits him to depart from
the regular scope of rebuttal’’).
We agree with the trial court’s conclusion that the
proffered question and answer from Corsico’s deposi-
tion was not proper rebuttal because Corsico was not
discussing a situation in which a person’s gastrointesti-
nal bleed had resolved prior to his or her death. The
isolated colloquy from Corsico’s deposition establishes
only a single, generic proposition: that a gastrointestinal
bleed can lead indirectly to death. Such a broad state-
ment does not generally contradict Schneller’s and
Anderson’s more precise testimony that, in this particu-
lar case, the decedent’s death was caused by other
medical conditions and not the gastrointestinal bleed,
which had resolved more than two weeks before her
death.30 In essence, the experts were asked different
hypothetical questions, the answers to which were not
necessarily contradictory.31 As a result, we conclude
that the trial court did not abuse its discretion by exclud-
ing Corsico’s testimony from the plaintiff’s case on rebut-
tal.
III
The plaintiff’s third claim is that the trial court improp-
erly granted the defendants’ motion for summary judg-
ment on a design defect claim related to the defendants’
failure to develop and market a reversal agent for Pra-
daxa, pursuant to the impossibility preemption doc-
trine. In response, the defendants assert that the trial
court’s preemption analysis was correct because mar-
keting a reversal agent would have required indepen-
dent approval by the FDA. We agree with the defen-
dants.
The following additional facts and procedural history
are relevant to our consideration of this claim. The FDA
approved Pradaxa in 2010. Five years later, after the
decedent’s death, the defendants obtained approval
from the FDA to sell idarucizumab, a chemical reversal
agent for Pradaxa marketed under the brand name Prax-
bind. Because Praxbind was not available at the time
of the decedent’s gastrointestinal bleed, kidney dialysis
was required to remove dabigatran etexilate, the active
ingredient in Pradaxa, from her bloodstream. As a
result, the decedent’s gastrointestinal bleed took three
days to stop.
In the present case, the plaintiff sought to advance
a claim that the defendants could have brought Prax-
bind to market earlier and that, because they did not do
so, the decedent’s gastrointestinal bleed was prolonged.
The plaintiff claimed, in particular, that the defendants
had defectively designed Pradaxa by failing to seek con-
current approval for a reversal agent. The defendants
subsequently filed a motion for summary judgment,
arguing that, because the FDA had not approved Prax-
bind before the decedent’s death, the plaintiff was fore-
closed from pursuing a design defect claim predicated
on its absence. Specifically, the defendants argued that
the reasoning set forth in Mutual Pharmaceutical Co.
v. Bartlett, 570 U.S. 472, 133 S. Ct. 2466, 186 L. Ed. 2d
607 (2013), and PLIVA, Inc. v. Mensing, 564 U.S. 604,
131 S. Ct. 2567, 180 L. Ed. 2d 580 (2011), clearly estab-
lished that such claims are preempted by federal law.
The trial court reached the same conclusion and,
accordingly, granted the defendants’ motion for sum-
mary judgment on that claim.32
‘‘The standard of review on summary judgment is
well established. Summary judgment shall be rendered
forthwith if the pleadings, affidavits and other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . The scope of our
appellate review depends upon the proper characteriza-
tion of the rulings made by the trial court. . . . When
. . . the trial court draws conclusions of law, our
review is plenary and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record.’’ (Internal
quotation marks omitted.) NetScout Systems, Inc. v.
Gartner, Inc., 334 Conn. 396, 408, 223 A.3d 37 (2020);
see also Byrne v. Avery Center for Obstetrics & Gyne-
cology, P.C., 314 Conn. 433, 447, 102 A.3d 32 (2014)
(‘‘[w]hether state causes of action are preempted by
federal statutes and regulations is a question of law
over which our review is plenary’’).
The supremacy clause of the United States constitu-
tion provides that federal law ‘‘shall be the supreme
Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.’’ U.S.
Const., art. VI, cl. 2. The dictates of that provision
require state law to yield to the extent that it conflicts
with federal law. See, e.g., Freightliner Corp. v. Myrick,
514 U.S. 280, 287, 115 S. Ct. 1483, 131 L. Ed. 2d 385
(1995). Such a conflict is implicit where, for example,
it is ‘‘impossible for a private party to comply with
both state and federal requirements . . . .’’ (Internal
quotation marks omitted.) Id. There is, however, ‘‘a
strong presumption against federal preemption of state
and local legislation.’’ (Internal quotation marks omit-
ted.) Murphy v. Darien, 332 Conn. 244, 249, 210 A.3d
56 (2019), cert. denied sub nom. Metro North Commuter
Railroad Co. v. Murphy, U.S. , 140 S. Ct. 847,
205 L. Ed. 3d 468 (2020).
We begin our analysis of whether such a conflict
exists in the present case with a brief review of three
decisions from the United States Supreme Court exam-
ining the question of impossibility preemption in the
pharmaceutical context. The plaintiff in Wyeth v.
Levine, 555 U.S. 555, 558, 129 S. Ct. 1187, 173 L. Ed. 2d
51 (2009), brought an action in a state court alleging,
among other things, that she would have benefited from
certain additional warnings in the label for a particular
brand-name drug. After extensively reviewing federal
law relating to drug labeling, the United States Supreme
Court concluded that the plaintiff’s state law claim was
not preempted because a particular federal regulation,
in fact, would have permitted the defendant to unilater-
ally add such additional warnings to the drug’s label,
while remaining in compliance with federal law. Id.,
568–72, citing 21 C.F.R. § 314.70 (c) (6) (iii) (2008).33
The plaintiffs in PLIVA, Inc. v. Mensing, supra, 564
U.S. 608–609, also alleged the absence of adequate
warning labels. The defendants in that action argued
on appeal that, as manufacturers of generic drugs, they
could not make unilateral changes to the labels of
generic drugs. Id., 610. The United States Supreme
Court agreed, concluding that the plaintiffs’ claim was
preempted because FDA regulations required manufac-
turers of generic drugs to simply mirror the labeling of
their brand-name counterparts.34 Id., 614, 624. In reach-
ing that conclusion, the court specifically rejected the
plaintiffs’ argument that proving impossibility would
require the defendants to affirmatively demonstrate that
the FDA would have rejected stronger warnings if they
had been proposed. Id., 620. The relevant inquiry, the
court held, was whether the defendants ‘‘could inde-
pendently do under federal law what state law requires
. . . .’’ (Emphasis added.) Id.35
The United States Supreme Court extended this rea-
soning to a state design defect claim two years later in
Mutual Pharmaceutical Co. v. Bartlett, supra, 570 U.S.
472. The plaintiff in that case took a generic drug, sulin-
dac, and suffered a severe adverse reaction that was
not mentioned in the drug’s warning label. Id., 477–78.36
The plaintiff subsequently brought an action, alleging
that sulindac was ‘‘ ‘unreasonably dangerous’ ’’ under
state law and obtained a verdict in her favor. Id., 479,
486. On appeal, the United States Supreme Court noted
that, to satisfy the obligation imposed by state tort law,
the defendant would have had to either (1) alter sulin-
dac’s composition or (2) strengthen the warning label.
Id., 483–84. The court found that the defendant was
legally foreclosed from redesigning sulindac as a
generic manufacturer and that, in any event, such alter-
ations were physically impossible in light of sulindac’s
simplistic composition. Id. The court, citing its decision
in Mensing, also concluded that the defendant, as a
generic manufacturer, was prohibited by federal law
from strengthening the warnings in sulindac’s label. Id.,
486. As a result, the court concluded that the plaintiff’s
state tort claim was preempted. Id., 486–87.
Our review of these decisions compels us to conclude
in the present case that the trial court properly granted
the defendants’ motion for summary judgment as to
the plaintiff’s design defect claim. In order to cure the
design defect alleged by the plaintiff, the defendants
would have had to bring Praxbind to market before the
decedent’s gastrointestinal bleed in 2014. Because there
is no dispute that Praxbind was not approved by the
FDA until 2015, the defendants could not have satisfied
their alleged state law duty to the decedent without
marketing an unapproved drug in violation of federal
law. In light of that conflict, the trial court correctly
concluded that the plaintiff’s design defect claim based
on the absence of a reversal agent for Pradaxa was
preempted. See PLIVA, Inc. v. Mensing, supra, 564 U.S.
623–24 (‘‘when a party cannot satisfy its state duties
without the [f]ederal [g]overnment’s special permission
and assistance, which is dependent on the exercise of
judgment by a federal agency, that party cannot inde-
pendently satisfy those state duties for [preemption]
purposes’’).
The plaintiff claims that the test for preemption set
forth in Mensing and Bartlett is inapplicable to present
case because those cases do not involve brand-name
drugs. We disagree. Although the different levels of
control afforded to brand-name and generic manufac-
turers by federal labeling regulations informed the
court’s analysis in those cases, the nature of the under-
lying test remained consistent: whether the defendant
‘‘could independently do under federal law what state
law requires . . . .’’ (Emphasis added.) Id., 620.
Because the claim relating to the development and mar-
keting of Praxbind in the present case does not relate
to labeling, the plaintiff’s attempt to rely on the distinc-
tions between generic and brand-name manufacturers
discussed in Mensing and Bartlett is unavailing. See
Yates v. Ortho-McNeil-Janssen Pharmaceuticals, Inc.,
808 F.3d 281, 296–97 (6th Cir. 2015) (‘‘contrary to [the
plaintiff’s] contention that the impossibility preemption
in Mensing and Bartlett is limited to generic drugs, we
view Levine, Mensing, and Bartlett as together stating
the same test for impossibility preemption’’).
The plaintiff’s remaining arguments against preemp-
tion do not warrant a different result. First, the plain-
tiff’s assertion that it was technologically feasible to
develop Praxbind before the decedent’s death is insuffi-
cient to preclude preemption. Although such practical
considerations may sometimes limit the options avail-
able to a manufacturer; see Mutual Pharmaceutical
Co. v. Bartlett, supra, 570 U.S. 484; that fact is inapposite
to the question of whether marketing Praxbind in 2014
would have required the FDA’s ‘‘special permission and
assistance . . . .’’37 PLIVA, Inc. v. Mensing, supra, 564
U.S. 623–64. For similar reasons, we are also unper-
suaded that the FDA’s subsequent approval of Praxbind
in 2015 is dispositive. The possibility that the FDA would
have looked favorably on an earlier application does
nothing to alter the fact that, at the time of the dece-
dent’s death, the defendants were prevented from uni-
laterally marketing Praxbind under federal law. See
footnote 35 of this opinion. Indeed, the United States
Supreme Court found that the plaintiff’s failure to warn
claim in Bartlett was preempted notwithstanding the
fact that, shortly after her injuries, the FDA agreed with
her assessment that sulindac’s label should include a
stronger warning. See footnote 36 of this opinion.
For the foregoing reasons, we agree with the trial
court’s assessment that the plaintiff’s design defect
claim relating to Praxbind was preempted by federal
law.38 As a result, we conclude that trial court properly
granted the defendants’ motion for summary judgment
on that claim.
IV
The plaintiff’s final claim is that the trial court com-
mitted reversible error by issuing a curative instruction
to the jury after closing arguments. Specifically, the
plaintiff claims that the trial court abused its discretion
by instructing the jury that it could not hold the defen-
dants liable for failing to conduct tests described in a
particular exhibit. In response, the defendants contend
that the trial court’s instruction was merited because
the plaintiff improperly used that exhibit to advance a
preempted failure to test claim in closing argument. We
review this claim for an abuse of discretion. See, e.g.,
State v. Northrop, 213 Conn. 405, 422 n.13, 568 A.2d
439 (1990). Applying that standard to the arguments
and record before us, we find no reversible error.
The following additional facts and procedural history
are relevant to our analysis of this claim. Before the
commencement of trial, the court granted in part a
motion in limine filed by the defendants seeking to
‘‘exclude evidence, testimony, or argument regarding
[a] 110 [milligram] dose’’ of Pradaxa. In that ruling, the
trial court acknowledged that such evidence might be
relevant to the plaintiff’s claim that the defendants had
failed to adequately warn physicians about the risk of
bleeding associated with the 150 milligram dose pre-
scribed to the decedent and, accordingly, deferred rul-
ing on the admissibility of the evidence for that purpose
until trial. The court also concluded, however, that such
evidence could not be used to prove that the defendants
negligently failed ‘‘to test, study, investigate, or pursue
the various action items identified by the FDA in order
to secure approval of the 110 [milligram] dose in the
United States’’ because such a failure to test claim
would be preempted by federal law.39 During trial, the
court consistently applied this dichotomy when ruling
on objections relating to evidence discussing a 110 milli-
gram dose.
The defendants’ counsel gave the following closing
argument on the plaintiff’s failure to test claim:40 ‘‘The
failure to test, you’ve literally not been given the nature
of a test that should be done. Instead what you’ve been
told is we did do a lot of study of this issue, we went
as far we could, we went further than others did, and
we came to the view that we couldn’t go farther, a view
that the FDA echoed. A failure to test, no.’’ Notwith-
standing the trial court’s previous ruling, the plaintiff’s
counsel responded by drawing the jury’s attention to a
document, admitted into evidence as exhibit 23, dis-
cussing in particular detail a ‘‘potential path forward’’
for the 110 milligram dose previously proposed by the
FDA. The trial court concluded that the plaintiff’s coun-
sel’s argument had improperly suggested to the jury
that the defendants could be held liable for failing to
pursue a 110 milligram dose and, as a result, gave the
following curative instruction: ‘‘[M]embers of the jury,
sometimes in closing arguments things are said by one
or more lawyers that needs correction by the court. It’s
not uncommon for that to happen. . . . [I]t was sug-
gested that you look at exhibit 23 during your delibera-
tions. I am instructing you that you may not hold [the
defendants] liable for a failure to conduct the testing
outlined in exhibit 23.’’
The plaintiff’s principal argument is that her use of
exhibit 23 was proper because the defendants had
‘‘opened the door’’ to it during their own closing argu-
ment. We disagree. This defendants’ closing argument
only broadly discussed the plaintiff’s failure to test
claim. See footnote 40 of this opinion. The ‘‘potential
path forward’’ described in exhibit 23, by contrast, dis-
cusses the prospect of FDA approval for a 110 milligram
dose. As a result, the defendants did not open the door
to the plaintiff’s use of that exhibit in closing.
The plaintiff also argues that the trial court instructed
the jury to ‘‘disregard’’ a full exhibit and that doing so
infringed on her right to use that evidence in support
of her claims. The trial court’s instruction, however,
only precluded the jury from considering a single
exhibit to support a particular claim that it had deter-
mined was preempted under federal law. Such a restric-
tion was not improper. Finally, the plaintiff claims that
she was unfairly prejudiced because the trial court had
singled out her argument before the jury as doing
‘‘something wrong . . . .’’ Again, we disagree. The trial
court’s instruction was brief, contained no explicit rep-
rimand, and was conveyed using reasonably measured
language. In fact, the court described such instructions
as ‘‘not uncommon . . . .’’ Under these circumstances,
we decline to conclude that the trial court abused its
discretion by issuing the challenged curative instruction
to the jury.
The judgment is affirmed.
In this opinion the other justices concurred.
* May 4, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to Practice Book
§ 65-1 and General Statutes § 51-199 (c).
2
Stanley Schneller, a cardiologist, testified at trial that ‘‘below [the
accepted therapeutic] range [patients] don’t get any benefit, it’s as if they’re
not taking the drug, and above that range [patients] get no further benefit
in terms of stroke prevention.’’ Thus, Schneller testified, the ‘‘targeted range
is designed to give [patients] stroke protection without undue bleeding risk.’’
Fierstein testified that the decedent was inside of the accepted therapeutic
range ‘‘at least 75 percent of the time’’ she was taking warfarin.
3
According to testimony offered at trial, retroperitoneal fibrosis is a medi-
cal condition that can cause kidney damage by obstructing the flow of urine.
This condition was not related to the decedent’s use of Pradaxa. The phrase
‘‘occult neoplasia’’ denoted an undiagnosed cancer.
4
The judgment file incorrectly notes that the defendants’ various motions
for summary judgment were denied in their entirety. This appears to have
been a scrivener’s error.
5
The plaintiff also makes the conclusory assertion that the trial court’s
rulings with respect to spoliation ‘‘would seem to violate basic notions of
fundamental fairness, due process, and the right to counsel.’’ The plaintiff’s
brief, however, contains no analysis applying those constitutional principles
to the facts of the present case. As a result, we deem those claims, insofar
as they were raised, to have been abandoned. Connecticut Light & Power
Co. v. Gilmore, 289 Conn. 88, 124, 956 A.2d 1145 (2008) (‘‘We repeatedly
have stated that [w]e are not required to review issues that have been
improperly presented to this court through an inadequate brief. . . . Analy-
sis, rather than mere abstract assertion, is required in order to avoid abandon-
ing an issue by failure to brief the issue properly.’’ [Internal quotation
marks omitted.]).
6
The defendants argue that the trial court’s decision to give a spoliation
an instruction was, itself, improper. Because the defendants prevailed at
trial, we decline to address that claim of error in the present appeal. See
Practice Book § 61-1; see also Seymour v. Seymour, 262 Conn. 107, 110,
809 A.2d 1114 (2002) (‘‘[o]rdinarily, a party that prevails in the trial court
is not aggrieved’’). We note, however, that other trial courts overseeing
Pradaxa trials in this state have adopted divergent approaches to this issue.
See Bedsole v. Boehringer Ingelheim Pharmaceuticals, Inc., Superior Court,
judicial district of Hartford, Docket No. CV-XX-XXXXXXX-S (September 14,
2018) (68 Conn. L. Rptr. 206) (declining to provide adverse inference instruc-
tion); Gallam v. Boehringer Ingelheim Pharmaceuticals, Inc., Superior
Court, judicial district of Hartford, Docket No. CV-XX-XXXXXXX-S (April 13,
2018) (following trial court’s approach in present case, but also giving spolia-
tion instruction during presentation of evidence); see also In re Petition of
Boehringer Ingelheim Pharmaceuticals, Inc., 745 F.3d 216, 220 (7th Cir.
2014) (noting wide range of sanctions available to district court).
7
Prior to 2015, there was a split in federal courts regarding the factual
findings necessary to support an imposition of sanctions, such as an adverse
inference instruction, for the spoliation of electronically stored information;
some courts imposed sanctions on a finding a gross negligence, while others
required intentional destruction. Compare Residential Funding Corp. v.
DeGeorge Financial Corp., 306 F.3d 99, 99–101 (2d Cir. 2002) (gross negli-
gence standard), and Bracey v. Grondin, 712 F.3d 1012, 1020 (7th Cir. 2013)
(bad faith standard). The Federal Rules of Civil Procedure were ultimately
amended in 2015 to require a finding of bad faith. See Fed. R. Civ. P. 37 (e)
(2) (permitting imposition of sanctions ‘‘only upon finding that the party
acted with the intent to deprive another party of the information’s use in
the litigation’’).
8
The plaintiff also requested instructions relating to the destruction of
certain text messages and corporate e-mails. Those aspects of the plaintiff’s
request to charge are not at issue in the present appeal.
9
The plaintiff noted, in particular, that such evidence would likely require
calling one of the defendants’ attorneys, Eric Hudson, as a witness.
10
During oral argument, the plaintiff implied that the introduction of such
evidence could be avoided at least three times. On one occasion, the plaintiff
stated that, ‘‘if the court doesn’t grant this motion, then [she] intend[s] to
put on evidence that there was a prior proceeding in which [the defendants]
were obligated to preserve this information and they failed to do so.’’ On
another occasion, the court asked the plaintiff the following question: ‘‘So
your position is that if the court were to grant the request for a spoliation
charge, you would not intend to put on any evidence of Judge Herndon’s
order?’’ The plaintiff responded by stating: ‘‘That’s correct.’’ Finally, the
plaintiff concluded her argument on as follows: ‘‘We believe that the motion
should be granted for the reasons we’ve articulated, but if the court denies
it, we’d ask that it be denied with direction that we be permitted to put on
the evidence as we’ve discussed here today.’’
11
During a supplemental oral argument before the trial court, the plaintiff
repeated her belief that the jury could be provided with an adequate context
through evidence regarding Lehr’s involvement in the research underlying
Pradaxa and, specifically, the concept of a therapeutic range.
12
The trial court’s written decision summarized the proceedings related
to spoliation sanctions before Judge Herndon, including the relevant factual
findings and conclusions.
13
As noted subsequently in this opinion, the ultimate question of whether
to draw an adverse inference was reserved for the jury. See, e.g., Paylan
v. St. Mary’s Hospital Corp., 118 Conn. App. 258, 264, 983 A.2d 56 (2009);
see also Connecticut Civil Jury Instructions (2012) § 2.3-4, available at https://
jud.ct.gov/JI/Civil/Civil.pdf (last visited May 1, 2020).
14
The plaintiff’s written objection to the defendant’s motion in limine
reiterated her position that she would seek to introduce evidence relating
to spoliation only in the event the trial court declined to give the requested
instruction. The plaintiff argued, specifically, that ‘‘in the event that the
spoliation issues addressed by Judge Herndon’s orders are to be relitigated
in this case, then [the] plaintiff believes that the court should admit as full
exhibits [the various court orders] reflecting Judge Herndon’s identification
of the discovery orders, [the] bad faith conduct in breaching same, and the
consequences of that conduct.’’
15
Although conceding that the scheduled witnesses lacked such personal
knowledge, the plaintiff did indicate to the trial court that a particular
corporate e-mail had identified Lehr as the ‘‘father’’ of a manuscript relating
to dabigatran etexilate exposure, and that expert witnesses who had
reviewed the materials produced by the defendants could testify that they
had been unable to locate any version of that manuscript authored by Lehr.
As discussed subsequently in this opinion, testimony to this effect was, in
fact, ultimately presented to the jury.
16
The published version of that paper, which was admitted into evidence
as a full exhibit, lists both Reilly and Lehr as authors, and indicates that
both Reilly and Lehr ‘‘contributed equally.’’
17
The plaintiff’s opening statement was accompanied by various slides
that were shown to the jury. One such slide read as follows: ‘‘We do not
have the first version of the Pradaxa paper.’’
18
In one e-mail, Reilly writes that, ‘‘I am aware that the conclusions that
appear to emerge from this paper are not the ones currently wished for by
marketing (that dose adjustment will optimize therapy) . . . .’’ In a separate
string of e-mails discussing specific upper and lower blood concentration
measurements, Reilly notes that he has ‘‘been facing heavy resistance inter-
nally on this paper about the concept of a therapeutic range, at least stating
it outright.’’ In certain other communications discussing the need for blood
monitoring with Pradaxa in specific populations, Andreas Clemens, the
head of the department of medical affairs for dabigatran etexilate, wrote
as follows: ‘‘This needs [to be] a TelCon and we should NOT interact via
e-mail on this.’’ All of this correspondence was admitted into evidence and
placed before the jury for consideration.
19
The defendants sought to undercut this testimony on recross-examina-
tion by introducing a version of the exposure response paper that Reilly
had characterized in an e-mail as the ‘‘first draft.’’ Plunkett later testified
that she had specifically attempted to locate an earlier version of that paper
from Lehr in light of an e-mail that identified Lehr as the ‘‘father’’ of the manu-
script.
20
During oral argument on the defendants’ motion for reconsideration,
the plaintiff stated as follows: ‘‘[W]e wanted the record to be clear that [the]
plaintiff has understood the court’s instruction regarding the spoliation
charge was that the plaintiff would not be offering evidence during the
course of its case as to issues of spoliation or suppression of documents.
. . . [T]o the extent that the court entertains the motion to [reconsider],
we [do] not want to waive the right to put on such evidence by resting . . . .’’
21
In response, the defendants posited during their closing argument that
Reilly’s testimony, together with various documents and correspondence,
had disproved the existence of such a draft.
22
The plaintiff does not claim in the present appeal that the content of
the trial court’s ultimate instruction deviated in any material respect from
her request.
23
The plaintiff argues that, in light of the trial court’s decision to instruct
the jury on spoliation, its decision to ‘‘preclude counsel from commenting
[on that issue] in any manner’’ should be reviewed de novo. We disagree
for two reasons. First, as set forth previously in this opinion, the plaintiff
was permitted to introduce evidence regarding Lehr’s research and his
involvement with the exposure response paper. Second, to the extent that
the plaintiff assails the scope of the remedy ultimately fashioned, we note
that the imposition of sanctions for discovery misconduct is also vested in
the sound discretion of the trial court. See, e.g., Ridgaway v. Mount Vernon
Fire Ins. Co., 328 Conn. 60, 70, 176 A.3d 1167 (2018); Duncan v. Mill Manage-
ment Co. of Greenwich, Inc., 308 Conn. 1, 28, 60 A.3d 222 (2013).
24
The trial court’s exclusion of Barner’s deposition testimony, like its
pretrial ruling on the defendants’ motion in limine, placed the plaintiff on
notice that the trial court intended to hold her to the representations she
had made in requesting an adverse inference instruction. If the plaintiff
believed that the instruction she had requested could not properly be consid-
ered in the absence of Barner’s testimony, she could have withdrawn her
request for the charge and sought to introduce evidence to prove the ele-
ments of spoliation under Beers. The plaintiff did not do so. See also footnote
26 of this opinion.
25
We note that this well established legal principle also undercuts the
plaintiff’s claim that the trial court’s restriction on closing arguments was
unforeseeable.
26
The plaintiff also did not seek to revert to such a procedure after the
trial court granted the defendants’ motion in limine and denied her motion
for permission to ‘‘inform’’ the jury of the issues relating to spoliation. Both
of those rulings, which were issued before the commencement of trial,
clearly indicated that the court intended to severely restrict, if not entirely
preclude, evidence and arguments relating to the defendants’ destruction
of Lehr’s files.
27
The plaintiff raises two ancillary arguments warranting brief attention.
First, the plaintiff argues that the trial court’s decision to instruct the jury
that an adverse inference was permissible as a matter of law merely relieved
her of the burden of proving spoliation. That ruling, the plaintiff argues,
should have done nothing to prevent her from informing the jury of the
defendants’ unlawful destruction of evidence. This argument ignores the
fact that presenting such evidence to the jury would necessitate the very
same ‘‘trial within a trial’’ that the court’s decision to give an adverse infer-
ence instruction was, itself, expressly designed to avoid. Second, the plaintiff
argues that the restrictions imposed by the trial court run contrary to a
‘‘strong public policy . . . of seeking to deter spoliation by product liability
defendants.’’ We find this argument unpersuasive because the trial court,
in fact, granted the plaintiff’s requested form of relief for spoliation in the
present case.
28
This conclusion is a relatively narrow one. This case does not require
this court to determine whether a spoliation instruction was required, or
whether the instruction ultimately provided to the jury was proper. See
footnote 6 of this opinion. Simply put, we only conclude that, in light of
the representations made to the trial court in seeking an instruction in the
present case, the plaintiff cannot prevail on her claim that the trial court
improperly precluded evidence and arguments related to spoliation.
29
The plaintiff argues that the trial court’s ruling was based on the errone-
ous legal conclusion that rebuttal evidence must directly contradict testi-
mony presented by the defendants. Our independent review of the record
has, however, located no support for the contention that such a standard
was applied in the present case.
30
The plaintiff does not argue that she was prohibited from calling addi-
tional expert witnesses to rebut the testimony from Schneller and Anderson
on either the decedent’s unrelated medical conditions or the results of the
decedent’s gastrointestinal bleed.
31
The plaintiff asserts that Corsico’s recognition that a gastrointestinal
bleed can lead to a fatal cascade was relevant and, indeed, crucial to proving
her case. Specifically, the plaintiff argues that such testimony (1) would
have helped to bolster her own evidence on causation, (2) would have
precluded the defendants from making certain arguments in closing, and
(3) was clearly important in light of the jury’s ultimate verdict. None of
these arguments, however, relate to whether the trial court erred by declining
to admit Corsico’s testimony as rebuttal. See, e.g., DiMaio v. Panico, 115
Conn. 295, 298, 161 A. 238 (1932) (‘‘The rule upon this subject is a familiar
one. When, by the pleadings, the burden of proving any matter in issue is
thrown upon the plaintiff, he must, in the first instance, introduce all the
evidence upon which he relies to establish his claim. He cannot, as said by
Lord Ellenborough, go into half his case, and reserve the remainder.’’ (Inter-
nal quotation marks omitted.)). Finally, the plaintiff argues that the trial
court should have admitted Corsico’s testimony because presentation of
that evidence would not have taken much time. Although the trial court
may well have been entitled to weigh that fact in reaching its decision; see
Gomeau v. Gomeau, supra, 242 Conn. 211; we decline to find an abuse of
discretion on that basis alone.
32
The trial court also concluded that the defendants were also entitled
to summary judgment on this claim because Praxbind was a ‘‘different
product as a matter of law and not a design element of Pradaxa.’’ Because
we conclude that the trial court properly granted the defendants’ motion
for summary judgment on federal preemption grounds, we need not consider
this aspect of the trial court’s ruling.
33
The court noted that the FDA retained authority to retrospectively reject
such unilateral changes to the warnings but declined to find impossibility
preemption on that ground in the absence of ‘‘clear evidence’’ that the FDA
would have done so. Wyeth v. Levine, supra, 555 U.S. 571. The plaintiff in
the present case asserts that a recent United States Supreme Court case
explaining that particular standard, Merck Sharp & Dohme Corp. v. Albrecht,
U.S. , 139 S. Ct. 1668, 203 L. Ed. 2d 822 (2019), stands for the broad
proposition that impossibility preemption ‘‘only applies when a defendant
can affirmatively show that it attempted to get the FDA to allow the safer
alternative proposed by the plaintiff and the FDA affirmatively and officially
rejected it.’’ (Footnote omitted.) We disagree. The clear evidence standard
in Wyeth applies only when a defendant seeks to prove that compliance
with a state law obligation remains impossible notwithstanding its ability
to act unilaterally under federal law. See Gibbons v. Bristol-Myers Squibb
Co., 919 F.3d 699, 708 (2d Cir. 2019) (describing ‘‘clear evidence’’ standard).
The brand-name drug manufacturers in Albrecht and Wyeth, for example,
could have satisfied their state law obligation to provide a label with an
adequate warning by unilaterally making label amendments. See 21 C.F.R.
§ 314.70 (c) (6) (iii). No similar federal law would have permitted the defen-
dants in the present case to market Praxbind unilaterally and, as a result,
Albrecht is inapposite.
34
The court reasoned as follows: ‘‘To be sure, whether a private party
can act sufficiently independently under federal law to do what state law
requires may sometimes be difficult to determine. But this is not such a
case. Before the [defendants] could satisfy state law, the FDA—a federal
agency—had to undertake special effort permitting them to do so. To decide
these cases, it is enough to hold that when a party cannot satisfy its state
duties without the Federal Government’s special permission and assis-
tance, which is dependent on the exercise of judgment by a federal agency,
that party cannot independently satisfy those state duties for pre-emption
purposes.’’ (Emphasis added.) PLIVA, Inc. v. Mensing, supra, 564 U.S.
623–24.
35
Accepting the plaintiffs’ argument, the court concluded, ‘‘would render
conflict pre-emption largely meaningless because it would make most con-
flicts between state and federal law illusory. We can often imagine that a
third party or the Federal Government might do something that makes it
lawful for a private party to accomplish under federal law what state law
requires of it. . . . If these conjectures suffice to prevent federal and state
law from conflicting for Supremacy Clause purposes, it is unclear when,
outside of express pre-emption, the Supremacy Clause would have any
force.’’ (Emphasis in original.) PLIVA, Inc. v. Mensing, supra, 564 U.S. 620;
cf. footnote 33 of this opinion.
36
As a result of a comprehensive review commenced in 2005, the year
after the plaintiff in Bartlett was prescribed sulindac, the FDA recommended
the inclusion of such a warning in sulindac’s label. See Mutual Pharmaceuti-
cal Co. v. Bartlett, supra, 570 U.S. 478–79.
37
We likewise reject the plaintiff’s arguments relating to evidentiary admis-
sibility and general foreseeability because they do not inform this analysis.
38
We note that courts in other jurisdictions considering related cases have
reached the same conclusion. See Ridings v. Maurice, Docket No. 15-00020-
CV-W (JTM), 2019 WL 4888910, *6 (W. D. Mo. August 12, 2019) (holding that
plaintiffs’ design defect claims were preempted ‘‘insofar as they are premised
on the failure of Boehringer to develop, seek and obtain approval for and/
or market a reversal agent for Pradaxa sooner that it did’’ and noting that
issue of feasibility was ‘‘immaterial’’); Chambers v. Boehringer Ingelheim
Pharmaceuticals, Inc., Docket No. 4:15-CV-00068 (CDL), 2018 WL 849081,
*13 (M. D. Ga. January 2, 2018) (‘‘Regardless of when Boehringer started
the process, Praxbind approval still required the FDA’s ‘special permission
and assistance.’ Boehringer could not unilaterally offer Praxbind to physi-
cians. Therefore, initiating the process that may have led to Praxbind’s
approval does not enable Boehringer to comply with both federal and state
law. Further, Boehringer was not required to cease production of Pradaxa
until Praxbind was approved to comply with federal and state law. . . .
Therefore, [the] [p]laintiff’s design defect claim is also preempted. [Citation
omitted; emphasis in original.]); but see In re Xarelto (Rivaroxaban) Prod-
ucts Liability Litigation, Docket No. 2592 (EEF), 2017 WL 1395312, *3
(E.D. La. April 13, 2017).
39
The plaintiff contends, in a conclusory fashion, that the trial court’s
legal conclusion on preemption was incorrect and that, as a result, the
trial court improperly excluded evidence regarding certain correspondence
between the defendants and the FDA discussing a 110 milligram dose of
Pradaxa. Specifically, the plaintiff argues that, because the information con-
tained within those documents shows that the defendants could have contin-
ued to pursue FDA approval of that lower dose, the trial court incorrectly
concluded that the plaintiff’s related, failure to test claim was preempted.
For the reasons discussed previously in this opinion, this argument lacks
merit. See footnote 35 of this opinion. To the extent that the plaintiff’s brief
implies evidentiary error on different grounds, we find those claims to have
been inadequately briefed. See, e.g., Connecticut Light & Power Co. v.
Gilmore, 289 Conn. 88, 124, 956 A.2d 1145 (2008).
40
The trial court aptly summarized the failure to test claims ultimately
presented to the jury in its instructions as follows: ‘‘The plaintiff claims that
[the defendants] failed to adequately test, study, and investigate Pradaxa’s
safety issues, specifically, that [the defendants]: (1) failed to study, test, and
investigate plasma concentrations so as to maximize stroke prevention and
minimize risk of bleeding relating to Pradaxa and, (2) failed to study, test,
and investigate Pradaxa’s relationship to gastrointestinal issues and gastroin-
testinal bleeding.’’