Keysa Mateo et al. v. Luis E. Pereira et al. (2010)

MEMORANDUM OF DECISION ON KASSOY MOTION FOR SUMMARY JUDGMENT

The plaintiffs, Keysa Mateo and Keila Colon, commenced this action against the defendant, Luis Pereira, on August 1, 2007, thereafter, amending the complaint to add the defendants Kassoy, LLC (Kassoy) and the Caflon Company (Caflon) as parties.   The second count of the plaintiffs' amended complaint alleges that Pereira pierced Mateo's upper right ear using piercing equipment and an earring supplied by Kassoy.   Plaintiff claims that the earring and the equipment were defective in their design and manufacturing and, in addition, Kassoy failed to provide proper warning and instruction regarding its products to Pereira and Mateo.   Plaintiff claims that as a result of the defective products and lack of warning, Mateo's right ear became severely infected, requiring hospitalization and surgery and resulting in disfiguration.

On March 5, 2008, Kassoy filed a third-party complaint against Caflon, alleging that it was the designer of the earring and had the responsibility to discover and remedy the defective and/or dangerous condition.

On June 5, 2009, this court entered a scheduling order which provided, inter alia, that the plaintiffs' expert witnesses must be disclosed by October 1, 2009.   On December 3, 2009, the plaintiffs disclosed their expert witness, a surgeon who is expected to testify regarding Mateo's treatment and prognosis and the causation of her injuries.   On December 11, 2009, Kassoy filed this motion for summary judgment as to the second count of the complaint on the ground that the plaintiff cannot prove the elements of a strict liability claim without an expert witness.   On January 28, 2010, the plaintiffs disclosed another expert witness, who is expected to testify that the warning provided by Kassoy was inadequate.   Despite plaintiffs' delay in disclosing these experts, the defendants did not object.   The motion for summary judgment was heard at short calendar on May 24, 2010.

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In this product liability action Kassoy argues that it is entitled to summary judgment because the plaintiff cannot prove that it sold a defective product.   It points out that the earring has been lost and therefore, cannot be used as evidence of a defect and secondly, that the plaintiffs have not disclosed an expert witness who can support the plaintiffs' claims.

Plaintiffs argue that summary judgment is inappropriate because courts have held, through the malfunction doctrine, that expert testimony is not necessary to establish that a product was defective.   They further assert that the warnings that accompanied the earrings and ear piercing equipment establish that Kassoy knew that its products caused ear infections.   Moreover, they assert that Kassoy admits in its third-party complaint that the earring and equipment were defective and unreasonably dangerous.   Thus, they argue that this creates an issue of fact with respect to whether the earring and the equipment were actually defective.   In support, the plaintiffs have submitted the following:  Mateo's deposition testimony, dated April 2, 2009;  deposition testimony of Antoinette Santiago, dated April 2, 2009;  Kassoy's third-party complaint;  and the product warning in the form of a release form/after care instructions.

In response, Kassoy argues that the malfunction doctrine only applies when there is evidence directly linking the product to the injury.   They assert that the plaintiffs have not offered such evidence.   In addition, they argue that third-party complaints are inadmissible evidence, and, therefore, Kassoy's complaint against Caflon cannot be used as an admission.

It is reasonable to conclude that statements made in third-party complaints may be admissible as evidentiary admissions.  Dreier v. Upjohn Co., 196 Conn. 242, 244 (1985).

It is concluded that there exist issues of material fact with respect to whether the product was defective because a product may be defective because of inadequate warnings or instructions.  Sharp v. Wyatt, Inc., 31 Conn.App. 824, 833, 627 A.2d 1347 (1993).

Motion for summary judgment denied.

Wagner, J., JTR

Wagner, Jerry, J.T.R.