Connecticut High Court Holds That "Unfair Trade Practices" Claims That Subsume Elements Of A Product Liability Claim Are Barred

• Published date: 26 July 2022
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Product Liability & Safety, Personal Injury
• Law Firm: Winston & Strawn LLP
• Author: Mr Patrick E. Hogan and Matthew Saxon

In a question of first impression certified to it by the U.S. Court of Appeals for the Second Circuit, the Supreme Court of Connecticut recently delivered a partial win for defendants facing state products liability and unfair trade practices claims arising from the same conduct.

In Glover v. Bausch & Lomb, Inc.,¹ the Connecticut high court held that the Connecticut Product Liability Act's ("CPLA") exclusivity provision barred a plaintiff's Connecticut Unfair Trade Practices Act ("CUTPA") claim for unscrupulous marketing of an allegedly defective product that caused personal injury.²

Glover involved allegations that the defendants' Trulign lens'an artificial lens surgically implanted in patients' eyes to treat cataracts'led to vision problems known as "Z syndrome" when one part of the lens moved toward the surface of the eye and other parts stayed in place or moved backward, creating a "Z" shape.³ The plaintiff alleged that she required several procedures to correct the damage to her vision and that fragments of the lenses could not be removed, permanently impairing both of her eyes.⁴ She alleged that the defendant manufacturers and marketers violated the CPLA by failing to warn about the dangers of the lens and sought leave to amend her complaint to allege a violation of the CUTPA premised on the "unscrupulous marketing of the Trulign Lens" because the defendants knew or should have known that the lenses "would be likely to inflict serious injuries and harm."⁵ The plaintiff averred that the defendants' marketing of the lenses "was a substantial factor resulting in [her] injuries, suffering, and damages."⁶

The district court held that the plaintiff's amendment would be futile because her CUTPA claim would be "indistinguishable from" her CPLA claim that was preempted by federal law, and therefore did not reach the question of whether the CPLA's exclusivity provision barred the plaintiff's CUTPA claim.⁷ On appeal, however, the Second Circuit certified that question (along with another that is not the subject of this post) to the Connecticut high court.⁸

The state supreme court held that the plaintiff's CUTPA claim was barred by the CPLA's exclusivity provision, Conn. Gen. Stat. ' 52-572n(a). That provision states that a CPLA claim "may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability, and warranty, for harm caused by a product."⁹ Although the court recognized that "'the [CPLA]...