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Connecticut Supreme Court Rules Appeal of Discovery Sanctions Was Properly Dismissed – Incardona v. Roer

By August 16, 2013July 17th, 2019Defective Medical Device litigation

As a defective medical device lawyer, I was interested to see a recent case out of Connecticut having to do with an allegedly defective catheter. In Incardona v. Roer, Karen Incardona represented the estate of Hazel Smart, who allegedly died as a result of a defective catheter during dialysis. The estate sued the healthcare companies and individual professionals involved for medical malpractice, negligence, loss of consortium and products liability; the products liability defendants were AngioDynamics Inc. and Medical Components, Inc. The plaintiff asked to depose the product liability defendants after the June 1, 2011 deadline for discovery, leading the trial court to sanction the plaintiffs by requiring them to pay for the depositions. Plaintiffs appealed, arguing that this effectively ended the case and was therefore a final order, but the appeals court dismissed for lack of jurisdiction. The Connecticut Supreme Court affirmed.
The facts of Smart’s death were not part of the opinion; a footnote says the action started prior to November of 2007. The plaintiffs originally brought two separate actions, which were consolidated by the trial court. That court set a deadline of January 2011 for finishing depositions, but it was delayed to June 1 by several defendants. After that deadline, plaintiffs asked for depositions in September. The product liability defendants objected, arguing that plaintiffs missed the deadline. The trial court agreed and found the delay prejudicial, but found that no deposition was not an appropriate sanction, so it required the plaintiffs to pay for all costs. The plaintiffs’ motion to reargue was not granted, so they appealed the sanctions order. The appeal argued that the sanctions order should be considered final and appealable because it depletes the funds available to pursue the underlying case. The appeals court disagreed and dismissed for lack of subject-matter jurisdiction.
The plaintiffs renewed their argument on appeal, but to no avail. Appellate courts lack subject-matter jurisdiction to hear any appeal that is not final, the court noted. Under a prior Connecticut Supreme Court case, Green Rock Ridge Inc. v. Kobernat, the high court had found that sanctions orders should be treated like the underlying discovery orders. That means neither order is considered final, and thus appealable, unless there is a contempt of court order, the court said. Because sanctions are fact-specific, it noted, exceptions apply—but not in this case. This order was part of the underlying action, not an end to a separate and distinct action, and doesn’t end the controversy over their rights, the court said. Nor did the court find this case similar enough to two others it had decided, which focused on nonparties’ rights to appeal discovery sanctions separate from the underlying case. Thus, the high court affirmed dismissal of the appeal.
As a pharmaceutical liability attorney, I am disappointed not to have seen more about the alleged defects in the catheter. Medical devices (and other consumer products) can be defective under three legal theories: defective design, defective manufacture or failure to adequately warn about safety risks. The majority of lawsuits over prescription drugs and medical devices are about failure to warn, but a defectively designed or manufactured device or drug can also be a serious health risk. In this case, a defective catheter could have caused internal injuries or failed to do its job properly, causing complications the medical team was trying to avoid by using a catheter. An injured person and his or her family can recover under any of these three legal theories; it’s just a question of which fits the facts best. Part of my job as a dangerous medical device lawyer is to help clients determine that.

If you were seriously injured or lost a loved one because of an unsafe, defective medical device, you have the right to hold the manufacturer legally liable. Call Carey, Danis & Lowe today to discuss your case and your options. You can reach us toll-free at 1-877-678-3400 or send us a message online.
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