NICOLE HURLEY, PPA, et al. v. THE HEART PHYSICIANS, P.C., et al., SC 18423

Judicial District of Stamford-Norwalk

 Product Liability; Jury Unanimity; Whether Trial Court Properly Interpreted Supreme Court's Remand as Limiting Trial to a Single Issue. Nicole Hurley suffered permanent brain damage as a result of a cardiac arrest allegedly caused by a downward adjustment of the rate of her pacemaker.  Nicole and her parents brought this action against Medtronic, Inc., the pacemaker's manufacturer, pursuant to the Connecticut Product Liability Act claiming that the pacemaker was defective in that it was not accompanied by adequate instructions and warnings of the dangers associated with its use.  The plaintiffs also alleged negligent conduct, claiming, among other things, that Frank Kling, a Medtronic representative, wrongly advised Nicole's cardiologist that the rate of the pacemaker should be set at a dangerous level and engaged in conduct that nullified any warnings contained in the pacemaker's technical manual.  Finally, the plaintiffs alleged breach of warranty and strict liability claims.  The trial court granted summary judgment in favor of Medtronic pursuant to the learned intermediary doctrine, which provides that manufacturers of prescription products need not warn consumers of their risks as long as adequate warnings are given to prescribing physicians.  The court found that Medtronic had provided adequate warnings to Nicole's cardiologist, a learned intermediary, in the pacemaker's technical manual.  The Supreme Court (278 Conn. 305) reversed, finding that an issue of fact existed as to whether Kling, by his oral communications that turning down the pacemaker was an option, accompanied by his physical downward adjustment of the pacemaker, actually contradicted the pacemaker's manual, nullifying the manual's warnings and rendering the learned intermediary doctrine inapplicable.  The Supreme Court's remand directed that there be further proceedings on the plaintiffs' product liability counts.  On remand, the trial court informed the jury that the sole question before it was whether the plaintiffs had proven that Kling, by his communications to the cardiologist and by his downward adjustment of the pacemaker, had contradicted the pacemaker's manual.  The jury responded in the negative and rendered a verdict for Medtronic.  The plaintiffs appeal, claiming the trial court erred in interpreting the Supreme Court's remand as restricting the trial to a single issue and thereby wrongly precluded the jury from considering their claims of negligent conduct, breach of warranty and strict liability.  The plaintiffs also claim that the trial court should have declared a mistrial for lack of jury unanimity because, during individual polling of the jurors as to their verdicts, one juror initially denied that he had rendered a verdict for the defense.  Finally, the plaintiffs claim that Medtronic was wrongly permitted to offer evidence that Nicole's cardiac arrest was caused by her cardiologist's negligence rather than by the rate reduction of her pacemaker.