CT Supreme Court’s Decision in Glover v. Bausch

On June 7, 2022, the Connecticut Supreme Court addressed two issues: (1) whether a cause of action exists under the Connecticut Product Liability Act’s (“CPLA”) negligence or failure-to-warn provisions (C.G.S. § 52-572q) based on a manufacturer’s alleged “failure to report adverse events to a regulator like the FDA following approval of the device, or to comply with the regulator’s [post approval] requirements” and (2) whether CPLA’s exclusivity provision (C.G.S. § 52-572n) bars a CUTPA claim based on the allegations that a manufacturer “deceptively and aggressively marketed a product despite knowing it presented a substantial risk of injury.”[1] Ultimately, the Court deemed that the answer to both issues is “yes.”[2]

BACKGROUND AND PROCEDURAL HISTORY

Marjorie Glover (the “Plaintiff”) brought action against the manufacturer, Bausch & Lomb, Inc. (the “Defendant”), alleging she sustained injuries from defective artificial lenses (“Trulign Lens”) that the Defendant developed and marketed.[3] Plaintiff claimed that the Defendant engaged in “deceptive advertising,” and thus violated the CPLA. Additionally, the Plaintiff alleged that the Defendant’s deceptive advertising violated CUTPA.[4]  Connecticut’s District Court granted the Defendant’s Motion to Dismiss.[5] The Plaintiff appealed to the United States Court of Appeals for the Second Circuit. The Court certified the Connecticut Supreme Court to hear the case instead because “the resolution of the plaintiff’s claims depended on the interpretation of Connecticut laws” for which the Second Circuit did not have any “controlling precedent.”[6]

THE COURT’S DECISION

1. Whether a Cause of Action Exists Under CPLA’s Negligence or Failure-To-Warn Provisions

The Court found that the test for whether a legal duty exists requires:

• A “determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result;” and
• A “determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular” situation.”[7]

When weighing these factors, however, the courts must also consider: “(1) the normal expectations of the participants in the activity under review; (2) public policy of encouraging participation in the activity; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.”[1]

The Court found that nothing in the CPLA or its corresponding case law suggested that only health care providers were in the best position to prevent harm to users of medical devices.[2]  The Court also found that CPLA must be interpreted broadly to prevent injury from defective products and therefore must be accompanied by appropriate warnings.[3]  The Court found that the Defendants knew or should have known that the harm suffered by the Plaintiff was likely to result from their failure to provide information regarding the adverse effects of the Trulign lenses to the FDA.[4]

Applying the additional four factors for determining a duty of care, the Court deemed: (1) Connecticut manufacturers and users would expect that the manufacturers are required to take all reasonable steps to provide warnings about known dangers to the entity in the best position to take precautions; (2) public policy favors healthcare providing patients with complete and accurate information and if manufacturers withhold information about dangerous medical devices, patients can be compensated for the “foreseeable and preventable injuries caused by them; (3) litigation arising from a manufacturer’s failure to warn is prominent in Connecticut; and, (4) the decisions in other jurisdictions “weigh in favor of the plaintiff.”[5]

2. Whether CPLA’s Exclusivity Provision Barred the CUTPA claim

Regarding the second issue, the Court held that whether the exclusivity provision prevents the CUTPA claim is a question of statutory interpretation.[6]

The CPLA’s exclusivity provision permits a CUTPA claim based on the sale of a product when “(1) the plaintiff does not seek a remedy for personal injury, death or property damage caused by the defective product, or (2) the plaintiff seeks a remedy for personal injury, death or property damage caused by the unscrupulous advertising of a product that was not defective.[7]

Applying the test to this case, the Court noted that the plaintiff’s CUTPA claim seeks damages for personal injury and damages caused by an allegedly defective product; thus, the Plaintiff did not meet either requirement.[8]  Accordingly, the Court “reject[ed] the invitation” to “recognize an exception to the CPLA’s exclusivity provision for CUTPA claims seeking damages for personal injury caused by a defective product,” and held that the provision barred a CUTPA claim based on allegations that the manufacturer “deceptively and aggressively” promoted a product despite knowing it “presented a risk of a substantial injury.[1]

Attorney Richard Dighello is the Chair of Updike, Kelly & Spellacy’s Product Liability and Toxic Tort Practice Group and a member of the Construction Practices Group.  Attorney Dighello practices primarily in the areas of product liability, construction law, commercial litigation and asbestos defense. He can be reached at rdighello@uks.com or at (860) 548-2633.

Matthew Warden is an associate in the Firm’s Hartford office, where he practices in the areas of commercial litigation, insurance coverage and defense litigation, product liability and toxic torts, professional liability, construction, and employment law. While in law school, Mr. Warden served as a contributing member and editor for the Quinnipiac Probate Law Journal.  He can be reached at mwarden@uks.com or at (860) 548-2668.

Marrisa Infante was a summer associate at the Firm’s Hartford office.  Ms. Infante attends Quinnipiac’s School of Law and is entering her final year.

Disclaimer: The information contained in this material is not intended to be considered legal advice and should not be acted upon as such. Because of the generality of this material, the information provided may not be applicable in all situations and should not be acted upon without legal advice based on the specific factual circumstances

[1] Glover v. Bausch & Lomb, Inc., 343 Conn. 513, (2022),
[2] Id. at 557.
[3] Id. at 517.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at 533.
[8] Id. at 533-4.
[9] Id. at 538.
[10] Id. at 539.
[11] Id. at 540.
[12] Id. at 541-3.
[13] Id. at 558. (Citing Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 128 (2003); Soto v. Bushmaster Firearms International, LLC, 331 Conn. 53 (2019)).
[14] Glover, 343 Conn. 513 (2022).
[15] Id. at 561.
[16] Id. at 557, 562.