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*********************************************** 
JUDITH KISSEL v. CENTER FOR WOMEN’S

HEALTH, P.C., ET AL.

(AC 42469)

(AC 42493)

(AC 42505)

Moll, Alexander and Norcott, Js.

Syllabus

The plaintiff sought to recover damages from the defendant acupuncturist,

W, and his employer, C Co., for injuries she suffered when a heat lamp

used during an acupuncture treatment burned her left foot and toes

due to W’s alleged medical malpractice. The plaintiff attached to her

complaint a good faith certificate from her attorney but did not attach

a written and signed opinion letter from a similar health care provider.

C Co. filed a motion to dismiss the action on the ground that the plaintiff

failed to attach a written opinion letter from a similar health care provider as required by statute (§ 52-190a). Thereafter, W joined C Co.’s

motion to dismiss. Subsequently, the plaintiff filed a request to amend

her complaint to attach an opinion letter that she indicated had existed

at the time the complaint was originally filed but inadvertently was not

attached. The plaintiff also objected to the motions to dismiss and

claimed that the trial court had discretion to allow the amendment and

to deny the motions to dismiss because the opinion letter existed at the

time the action was commenced and was only inadvertently not attached

to the original complaint. The trial court denied the motions to dismiss

and overruled the objections to the plaintiff’s request to amend. Thereafter, the court granted W’s motion to implead H Co., the distributor of

the heat lamp, as a third-party defendant. Subsequently, the plaintiff

filed an amended complaint to allege a product liability claim against

H Co. Following a trial, the jury returned a verdict in favor of the plaintiff

on the medical malpractice and product liability counts. Thereafter, the

court granted W’s and C Co.’s motions for permission to file a second

motion for reconsideration of the denial of their motions to dismiss but

denied the requested relief, denied H Co.’s motions for a directed verdict

and to set aside the verdict, and rendered judgment in accordance with

the verdict. On separate appeals brought to this court by W, C Co., and

H Co., held:

1. The trial court improperly denied the motions to dismiss filed by W and

C Co., the plaintiff having failed to attach a written opinion letter to

her complaint as required by § 52-190a and having failed to cure that

defect before the statute of limitations expired: this court’s decision in

Peters v. United Community & Family Services, Inc. (182 Conn. App.

688), made clear that a plaintiff’s efforts to cure a defective opinion

letter must be initiated prior to the expiration of the statute of limitations,

and the plaintiff did not seek to remedy her failure to attach the written

opinion letter to her original complaint before the two year statute of

limitations had expired, and, contrary to the plaintiff’s argument, W and

C Co. did not waive argument on the statute of limitations because they

did not raise it in their 2012 motions to dismiss, as that argument was

raised in their motions to reargue based on new, controlling case law;

moreover, a jury verdict in a medical malpractice action does not insulate

a defect in the required opinion letter from appellate review; furthermore, because the plaintiff had knowledge on the date of the incident

of the nature and extent of her injuries, she could not rely on the three

year statute (§ 52-584) of repose, and, thus, pursuant to § 52-584, the

action was subject to a two year statute of limitations.

2. The trial court properly denied H Co.’s motions for a directed verdict

and to set aside the verdict; the plaintiff presented alternative bases

of causation for her injuries, and, because there was a lack of jury

interrogatories to specify which basis of causation the jury used to

reach its verdict, H Co. was required to establish that the evidence was

insufficient to support any of the specifications of causation pursued

by the plaintiff, however, H Co. argued on appeal only that the plaintiff

failed to establish how or why the heat lamp came into contact with
her foot and its failure to challenge the alternative bases of causation

was fatal to its appeal.

Argued October 5, 2020—officially released June 29, 2021

Procedural History

Action to recover damages for medical malpractice,

and for other relief, brought to the Superior Court in

the judicial district of Stamford-Norwalk, where the

court, Hon. Edward R. Karazin, Jr., judge trial referee,

denied the defendants’ motions to dismiss; thereafter,

the court, Mottolese, J., granted the motion of the defendant Reed Wang to implead Health Body World Supply,

Inc., as a third-party defendant; subsequently, the plaintiff filed an amended complaint; thereafter, the matter

was tried to the jury before Hon. Kenneth B. Povodator,

judge trial referee; verdict for the plaintiff; subsequently, the court, Hon. Kenneth B. Povodator, judge

trial referee, denied the defendants’ postverdict

motions and rendered judgment in accordance with

the verdict, from which the defendants filed separate

appeals to this court; thereafter, this court consolidated

the appeals. Affirmed in part; reversed in part; judgment directed.

Wesley W. Horton, with whom were Kenneth J.

Bartschi and, on the brief, Mary Alice Moore Leonhardt, for the appellant in Docket No. AC 42469 (defendant Reed Wang).

David J. Robertson, with whom was Keith M. Blumenstock, for the appellant in Docket No. AC 42493

(named defendant).

Laura Pascale Zaino, with whom were Paul D.

Meade and, on the brief, Logan A. Carducci, for the

appellant in Docket No. AC 42505 (defendant Health

Body World Supply, Inc.).

William M. Bloss, with whom, on the brief, were

Alinor C. Sterling, Matthew S. Blumenthal, Sarah

Steinfeld, and Sean K. McElligott, for the appellee

(plaintiff).
Opinion

ALEXANDER, J. This trilogy of appeals originated

when the plaintiff, Judith Kissel, sustained serious

burns to her left foot during the course of an acupuncture treatment. The plaintiff commenced a medical malpractice action against the treating acupuncturist, Reed

Wang, and his place of employment, the Center for

Women’s Health, P.C. (Center). The plaintiff subsequently filed a third-party complaint alleging a product

liability claim against Health Body World Supply, Inc.,

also known as WABBO, the distributor of a device commonly referred to as the Miracle Lamp (heat lamp),

which injured her. After a trial on both the medical

malpractice and product liability claims, the jury

returned a verdict for the plaintiff on all counts, awarding her a total of $1 million in damages. Following the

resolution of various postverdict motions, the court

rendered judgment in accordance with the jury’s verdict.

Wang, the Center, and WABBO each filed a separate

appeal, docketed as AC 42469, AC 42493, and AC 42505,

respectively. In AC 42469 and AC 42493, Wang and the

Center claim that (1) the trial court improperly denied

their motions to dismiss the medical malpractice action

for failing to comply with General Statutes § 52-190a

because the plaintiff failed to attach to her initial complaint an opinion letter from a similar health care provider and her efforts to cure this defect occurred outside

of the limitation period, (2) the court improperly denied

the request for an evidentiary hearing with respect to

the jurisdictional facts related to the opinion letter, (3)

the plaintiff failed to present sufficient evidence with

respect to causation, and (4) the court improperly

instructed the jury regarding expert testimony and causation. In AC 42505, WABBO claims that the court

improperly denied its motions for a directed verdict

and to set aside the verdict because the plaintiff failed

to present sufficient evidence as to the element of causation. The plaintiff maintains that the judgment of the

trial court should be affirmed.

In AC 42469 and AC 42493, we agree with Wang and

the Center that the court improperly denied their

motions to dismiss the plaintiff’s medical malpractice

complaint as a result of her failure to attach the requisite

opinion letter to the complaint and to cure this defect

by the expiration of the statute of limitations.1

In AC

42505, we conclude that the plaintiff presented sufficient evidence with respect to her product liability complaint. The court, therefore, properly denied WABBO’s

motions for a directed verdict and to set aside the verdict. Accordingly, we reverse the judgment with respect

to Wang and the Center on the medical malpractice

claims, and affirm the judgment with respect to the

product liability claims.
The following recitation, as set forth by the court in

its postverdict memorandum of decision,2

summarizes

the facts and procedural history and serves as a starting

point to address the claims raised in these appeals. The

plaintiff, a patient at the Center, went to Wang for her

first acupuncture treatment on April 22, 2010. At this

visit, Wang inserted needles in the plaintiff’s body and

placed the heat lamp3 near her foot as part of the treatment. The surface temperature of this device, which

was distributed by WABBO,4 exceeded 500 degrees. As

part of his standard practice, Wang left the plaintiff

alone in the treatment room, but remained close by.

‘‘When . . . Wang returned to the room several

minutes later, the head of the heat lamp was resting

against the plaintiff’s foot, having caused serious injuries to her foot. He removed the lamp from her foot,

and he (and the principal of the Center) transported

the plaintiff to a hospital for treatment.’’5

A significant issue at trial was the exact manner in

which the head of the heat lamp, which housed the

heating element, came into contact with the plaintiff’s

left foot. No one observed whether the head of the

heat lamp had descended or whether the entire lamp

assembly had tipped over.6 The parties presented extensive evidence regarding the propensity of the head of

the lamp to lower on its own or whether such movement

was the result of some external force.

‘‘The jury awarded the plaintiff $1 million as to each

of the claim/theories of liability presented. With respect

to the medical malpractice claim, the jury determined

that the plaintiff was not comparatively negligent. With

respect to the product liability claim, the jury determined that the plaintiff was not comparatively responsible for her injuries, but pursuant to General Statutes

§ 52-572o, the jury determined that . . . Wang, as a

party to this action, had been 20 [percent] responsible.

The plaintiff had not made any claim for economic

damages, so the full award was for noneconomic damages.’’ With this factual overview in mind, we now proceed to the specific claims raised in each of these

appeals.

I

AC 42469 and AC 42493

In AC 42469 and AC 42493, Wang and the Center

claim, inter alia, that the court improperly denied their

motions to dismiss the plaintiff’s medical malpractice

complaint.7 Specifically, Wang and the Center contend

that the court lacked personal jurisdiction on the basis

of the plaintiff’s failure (1) to attach an opinion letter

from a similar health care provider to her medical malpractice complaint and (2) to cure that defect within

the applicable two year statutory limitation period. The

plaintiff counters that the court properly denied the

motions to dismiss the medical malpractice complaint.
She argues that Wang and the Center waived their statute of limitations defense and that the purpose of the

statute was satisfied, as evidenced by the jury’s verdict

in the present case. The plaintiff contends that the three

year statute of repose contained in General Statutes

§ 52-584 applied and, therefore, the amendment to the

complaint containing the opinion letter was timely and

cured the defect. We agree with Wang and the Center

that the medical malpractice complaint should have

been dismissed pursuant to § 52-190a (c) and that the

plaintiff’s efforts to cure the defect were not timely.

A detailed recitation of the facts and procedural history is necessary for the resolution of this claim.8 The

plaintiff’s complaint was served on the Center on April

4, 2012, and on Wang on April 6, 2012. In her two count

complaint, dated March 30, 2012, the plaintiff alleged

that Wang, as ‘‘a servant, agent, apparent agent and/or

employee of [the Center]’’ held himself out as a licensed

acupuncturist in Connecticut.9 She further alleged that

she sustained injuries as a result of Wang’s failure to

exercise the degree and care of a licensed acupuncturist

in the following ways: (1) failing to protect her from

contact with the heat lamp during the acupuncture

treatment; (2) failing to place the heat lamp at a safe

distance during the treatment; (3) leaving her unattended during the acupuncture treatment and failing to

respond promptly to the her cries for help while she

was being burned; (4) failing to use a safe heating system during the acupuncture treatment; and (5) not caring for, treating, monitoring, diagnosing, and supervising her adequately and properly during the acupuncture

treatment. As a result of this professional negligence,

the plaintiff alleged a variety of injuries.10

The plaintiff’s counsel attached a certification to the

complaint indicating that he had made a reasonable

inquiry that led to a good faith belief that grounds

existed for this medical malpractice action against

Wang and the Center. See footnote 15 of this opinion.

The plaintiff did not, however, include a written and

signed opinion letter from a similar health care provider11 to show the existence of a good faith belief for

this action as required by § 52-190a (a).12

On May 24, 2012, the Center filed a timely motion to

dismiss the plaintiff’s complaint for lack of personal

jurisdiction.13 It claimed that the plaintiff failed to attach

a written opinion letter from a similar health care provider to the complaint as required by § 52-190a (a). It

argued that the plaintiff’s action sounded in medical

malpractice and that her failure to comply with subsection (a) of § 52-190a required dismissal pursuant to subsection (c) of that statute.14 On June 8, 2012, Wang

joined the Center’s motion to dismiss.

On June 28, 2012, the plaintiff requested leave to file

a first amended complaint. In this request, the plaintiff

indicated that ‘‘the similar health care provider opinion
existed at the time the complaint was originally filed

but was inadvertently not attached to the original complaint.’’ The plaintiff attached exhibit A to the request

to file an amended complaint. Exhibit A included a copy

of a proposed first amended complaint, the original

certificate from the plaintiff’s counsel, and an unsigned

and undated opinion letter.15 An affidavit from the plaintiff’s attorney was attached as exhibit B. In this affidavit,

the plaintiff’s counsel averred that he represented the

plaintiff in this medical malpractice action, had consulted with an expert, a licensed acupuncturist, beginning on November 16, 2011, and provided this expert

with the plaintiff’s medical records. He further represented that the expert signed the opinion letter on February 19, 2012, and had transmitted it to his representative that same day. The plaintiff’s counsel indicated

that he inadvertently failed to attach this letter to the

complaint on March 30, 2012.

Additionally, the plaintiff also filed a consolidated

opposition to the motions to dismiss filed by Wang and

the Center on June 28, 2012.16 Citing to this court’s

decision in Votre v. County Obstetrics & Gynecology

Group, P.C., 113 Conn. App. 569, 585, 966 A.2d 813,

cert. denied, 292 Conn. 911, 973 A.2d 661 (2009), the

plaintiff argued that ‘‘where the opinion letter exists at

the time of the commencement of the action, but is

inadvertently not attached to the complaint, a trial court

has discretion to allow the amendment and deny a

motion to dismiss.’’ She further claimed that the dismissal of her complaint ‘‘would elevate form over substance’’ and would violate Connecticut’s public policy

of allowing a trial on the merits. The plaintiff emphasized that ‘‘the important dividing line is whether the

opinion letter existed at the time the lawsuit was commenced or whether it was created after commencement. . . . Accordingly, the rule in Votre, which provides a safe harbor when the opinion letter exists prior

to commencement of the lawsuit, comports with the

purpose of § 52-190a and common sense.’’ The Center

filed a reply to the plaintiff’s opposition to its motion

to dismiss.17

On July 9, 2012, the Center objected to the plaintiff’s

request for leave to amend her complaint. It argued that

the court lacked discretion to permit an amendment to

the complaint in order for the plaintiff to attach an

opinion letter from a similar health care provider. The

Center also argued that a hearing was required to

resolve its challenge to certain facts contained in the

affidavit of the plaintiff’s counsel.

On July 16, 2012, the court, Hon. Edward R. Karazin,

Jr., judge trial referee, heard oral argument on the

motions to dismiss. Counsel for the Center argued that

the failure to include the opinion letter of a similar

health care provider constituted insufficient process

and that the plaintiff should not be permitted to amend
her complaint. The plaintiff’s counsel emphasized that

because the opinion letter existed at the time the medical malpractice case had been commenced, the court

had discretion to grant the plaintiff’s request to amend

the complaint so as to include the opinion letter.

On September 6, 2012, the court issued a memorandum of decision denying the motions to dismiss. After

summarizing the arguments of the parties and setting

forth the relevant law, the court framed the issue as

follows: ‘‘Although the law is explicit that a written

opinion letter complying with § 52-190a (a) must be

attached to the complaint in a medical malpractice case

in order to subject the defendant to the jurisdiction of

the court and to avoid dismissal of the action, the law

is less clear as to the legal consequences when a plaintiff

obtained a statutorily valid written opinion letter prior

to commencing the action but failed to attach it to her

original complaint and subsequently seeks to amend

her complaint to attach that written opinion letter.’’

After quoting from our decision in Votre v. County

Obstetrics & Gynecology Group, P.C., supra, 113 Conn.

App. 585,18 the trial court noted that the discretionary

power to permit an amendment to a complaint to

include the § 52-190a letter applied only when such a

letter existed prior to the commencement of the action.

The court noted the split of authority among decisions

of the Superior Court as to whether the referenced

passage from Votre constituted dicta and concluded

that it had the discretion to allow the plaintiff to amend

her complaint. ‘‘Without taking a position on the viability of the language at issue in Votre, this court holds,

in the absence of any appellate authority to the contrary,

that to the extent that the written opinion letter existed

prior to the commencement of this action, then the

court, in the exercise of its discretion, may deny the

. . . motions to dismiss and consider the written opinion letter that is attached to the amended complaint.’’

The court next addressed whether the opinion letter

had existed prior to the commencement of the plaintiff’s

medical malpractice action. The court recognized that

the plaintiff claimed that the undated letter had been

written prior to the lawsuit, while Wang and the Center

disputed this fact. Nevertheless, it determined that an

evidentiary hearing was not required. The court

explained: ‘‘Turning, then, to the attestations made in

the affidavit, the attorney claims that he signed the

complaint in this action on March 30, 2012, and that at

that time he filed the complaint, the signed, written

opinion letter of the similar health care provider existed

and was retained in the plaintiff’s file. He further attests

that his failure to attach the written opinion letter was

inadvertent and an oversight. Such attestations are

based on the attorney’s personal knowledge, and constitute facts that would be admissible at trial and indicate

that the attorney is competent to testify to the matters
stated in the affidavit. [Wang and the Center did] not

submit any evidence to rebut the attorney’s attestations,

but rather make conclusory statements challenging the

evidence. . . . Therefore, in the absence of counterevidence by [Wang and the Center], the court finds that

the written opinion letter existed prior to the commencement of this action and that the attorney’s failure

to attach it to the original complaint was inadvertence

or an oversight.’’ (Citations omitted.)

In summary, the court found that the opinion letter

had been authored prior to the commencement of the

action and that the failure to attach it to the original

complaint resulted from inadvertence or oversight. It

permitted the plaintiff to amend her complaint to

include the opinion letter. On September 21, 2012, the

court denied the motions to reargue and for reconsideration filed by Wang and the Center.

A number of pretrial filings, motions and hearings

ensued and the trial did not commence until November

16, 2017. The jury returned its verdict in favor of the

plaintiff on both the malpractice and product liability

counts on December 21, 2017. Approximately six

months later, Wang filed a motion for permission to

file a second motion for reconsideration of the denial

of his motion to dismiss.19 Wang argued that this court’s

recently released decision in Peters v. United Community & Family Services, Inc., 182 Conn. App. 688, 191

A.3d 195 (2018), was ‘‘directly on point factually, [was]

controlling legally, and [served] as additional grounds

for the dismissal of [the plaintiff’s] claims in the instant

action.’’ On September 6, 2018, the court, Hon. Kenneth

B. Povodator, judge trial referee, heard oral argument

on both the motion for permission to file a second

motion for reconsideration and the substantive merits

of the request for reconsideration.

At the hearing, Wang argued that, pursuant to Peters,

any attempt to cure a defect relating to a § 52-190a

opinion letter must have occurred prior to the expiration of the statutory limitation period; otherwise, the

only available remedy was to commence a new action

pursuant to the accidental failure of suit statute, General Statutes § 52-592.20 The plaintiff countered that

Judge Karazin, in his 2012 decision, properly had relied

on Votre, and that case remained good law even after

Peters. Six days later, the Center joined Wang’s motion

for permission to file a second motion for reconsideration of the denial of the 2012 motion to dismiss.

On January 3, 2019, Judge Povodator issued a memorandum of decision addressing the postverdict motions

that had been filed, including the motions for reconsideration of the 2012 motions to dismiss.21 The court began

by summarizing the issues relating to § 52-190a in this

case and the relevant language from our decisions in

Votre v. County Obstetrics & Gynecology Group, P.C.,

supra, 113 Conn. App. 585, and Peters v. United Com-
munity & Family Services, Inc., supra, 182 Conn. App.

706. After observing that its decision constituted a

‘‘close call,’’ the court focused on the issue of judicial

economy and that the purpose underlying § 52-190a had

been satisfied, given the jury’s verdict in favor of the

plaintiff.

The court concluded: ‘‘It would be inequitable and

highly wasteful to reverse the earlier decisions in such

a belated fashion. Subject matter jurisdictional issues

may be raised at any time, but other jurisdictional issues

are subject to waiver—and inferentially subject to other

equitable considerations. For all these reasons, the

motions to reargue are (have been) granted with respect

to entertaining reargument and reconsidering the earlier decision, but the equities overwhelmingly dictate

against affording any relief.’’

On appeal, Wang and the Center argue that the court

improperly denied their motions to dismiss. Specifically, they contend that the plaintiff’s complaint did not

comply with § 52-190a due to the absence of an opinion

letter from a similar health care provider. They claim

that the plaintiff did not attempt to remedy this defect

until after the statute of limitations had expired. Wang

and the Center contend that the plaintiff’s medical malpractice action should have been dismissed. The plaintiff counters that (1) Wang and the Center waived the

argument that the § 52-190a defect was not cured within

the statutory limitation period, (2) the purpose underlying § 52-190a was satisfied in this case given the jury’s

finding of medical malpractice, and (3) her amendment

was filed within the three year repose period of § 52-

584, which she claims is the limitation period. We agree

that the court lacked personal jurisdiction over Wang

and the Center as a result of the plaintiff’s failure to

cure the § 52-190a defect within the statutory limitation

period and that the medical malpractice action, therefore, should have been dismissed.

We begin our analysis by setting forth our standard

of review and a comprehensive review of the relevant

legal principles. ‘‘A motion to dismiss tests, inter alia,

whether, on the face of the record, the court is without

jurisdiction. . . . Our Supreme Court has held that the

failure of a plaintiff to comply with the statutory requirements of § 52-190a (a) results in a defect in process that

implicates the personal jurisdiction of the court. . . .

‘‘When a . . . court decides a . . . question raised

by a pretrial motion to dismiss, it must consider the

allegations of the complaint in their most favorable

light. . . . In this regard, a court must take the facts

to be those alleged in the complaint, including those

facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.

. . . The motion to dismiss . . . admits all facts which

are well pleaded, invokes the existing record and must

be decided upon that alone.’’ (Citations omitted; inter-
nal quotation marks omitted.) Labissoniere v. Gaylord

Hospital, Inc., 199 Conn. App. 265, 278–79, 235 A.3d

589, cert. denied, 335 Conn. 968, 240 A.3d 284 (2020),

and cert. denied, 335 Conn. 968, 240 A.3d 285 (2020);

see also Bennett v. New Milford Hospital, Inc., 300

Conn. 1, 10–11, 12 A.3d 865 (2011). We employ a de

novo standard of review with respect to a challenge to

the trial court’s ultimate legal conclusion and resulting

denial of a motion to dismiss. Perrone v. Buttonwood

Farm Ice Cream, Inc., 158 Conn. App. 550, 554, 119

A.3d 659 (2015); see also Bennett v. New Milford Hospital, Inc., supra, 10; Labissoniere v. Gaylord Hospital,

Inc., 182 Conn. App. 445, 451, 185 A.3d 680 (2018);

Lohnes v. Hospital of St. Raphael, 132 Conn. App. 68,

76, 31 A.3d 810 (2011), cert. denied, 303 Conn. 921, 34

A.3d 397 (2012).22

Next, we turn to the statutory language. Section 52-

190a (a) provides in relevant part: ‘‘No civil action . . .

shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after

October 1, 1987, whether in tort or in contract, in which

it is alleged that such injury or death resulted from the

negligence of a health care provider, unless the attorney

or party filing the action . . . has made a reasonable

inquiry as permitted by the circumstances to determine

that there are grounds for a good faith belief that there

has been negligence in the care or treatment of the

claimant. The complaint . . . shall contain a certificate

of the attorney or party filing the action . . . that such

reasonable inquiry gave rise to a good faith belief that

grounds exist for an action against each named defendant . . . . To show the existence of such good faith,

the claimant or the claimant’s attorney . . . shall

obtain a written and signed opinion of a similar health

care provider, as defined in section 52-184c, which

similar health care provider shall be selected pursuant

to the provisions of said section, that there appears

to be evidence of medical negligence and includes a

detailed basis for the formation of such opinion. Such

written opinion shall not be subject to discovery by any

party except for questioning the validity of the certificate. The claimant or the claimant’s attorney . . . shall

retain the original written opinion and shall attach a

copy of such written opinion, with the name and signature of the similar health care provider expunged, to

such certificate. . . .’’ (Emphasis added.) See also Torres v. Carrese, 149 Conn. App. 596, 608, 90 A.3d 256,

cert. denied, 312 Conn. 912, 93 A.3d 595 (2014). Simply

stated, § 52-190a applies when (1) the defendant is a

health care provider and (2) the claim is one of medical

malpractice. LaPierre v. Mandell & Blau, M.D.’s, P.C.,

202 Conn. App. 44, 49, 243 A.3d 816 (2020).

In Bennett v. New Milford Hospital, Inc., supra, 300

Conn. 27, our Supreme Court explained that the purpose

of § 52-190a ‘‘is to discourage the filing of baseless lawsuits against health care providers . . . .’’ (Internal
quotation marks omitted.) See generally Wilcox v.

Schwartz, 303 Conn. 630, 640–43, 37 A.3d 133 (2012)

(setting forth history of § 52-190a); Plante v. Charlotte

Hungerford Hospital, 300 Conn. 33, 54, 12 A.3d 885

(2011) (legislature established comprehensive prelitigation inquiry, including requirement of opinion letter by

objectively qualified health care provider, in attempt to

reduce filing of frivolous medical malpractice actions).

The court in Bennett also considered § 52-190a (c),

which provides that ‘‘[t]he failure to obtain and file

the written opinion required by subsection (a) of this

section shall be grounds for dismissal of the action.’’

(Emphasis added.) In interpreting subsection (c) of

§ 52-190a, our Supreme Court concluded that a motion

to dismiss constitutes the proper procedural vehicle

to challenge any deficiencies with the requisite letter.

Bennett v. New Milford Hospital, Inc., supra, 300

Conn. 29.

Cognizant of the severity of the dismissal of an action

as a result of a noncompliant opinion letter, the court

noted that such a dismissal was without prejudice and

that, in the event that the statute of limitations had run,

the accidental failure of suit statute, § 52-592,23 may

afford relief in certain circumstances. Id., 30–31; see

also Plante v. Charlotte Hungerford Hospital, supra,

300 Conn. 46–47 (holding that when medical malpractice action has been dismissed pursuant to § 52-190a

(c) for failure to supply opinion letter by similar health

care provider, plaintiff may commence otherwise time

barred action pursuant to matter of form provisions of

§ 52-592 (a), only if that failure was caused by simple

mistake or omission, rather than egregious conduct or

gross negligence attributable to plaintiff or plaintiff’s

attorney). It bears emphasizing, however, that ‘‘[d]ismissal is the mandatory remedy when a plaintiff fails

to file an opinion letter that complies with § 52-190a

(a).’’ (Internal quotation marks omitted.) Doyle v. Aspen

Dental of Southern CT, PC, 179 Conn. App. 485, 492, 179

A.3d 249 (2018); see also Peters v. United Community &

Family Services, Inc., supra, 182 Conn. App. 701; see

generally Votre v. County Obstetrics & Gynecology

Group, P.C., supra, 113 Conn. App. 584 (noting that

courts are bound to uphold law that legislature adopts

and that § 52-190a (c) plainly states that failure to

include letter mandated by § 52-190a (a) shall be

grounds to dismiss action).

In Morgan v. Hartford Hospital, 301 Conn. 388, 397,

21 A.3d 451 (2011), our Supreme Court determined ‘‘the

precise nature of the jurisdiction which is to be challenged pursuant to the dismissal language of § 52-190a

(a).’’ After a review of the relevant case law, it concluded that the failure to comply with the requirements

of § 52-190a (a) implicated personal jurisdiction and

not the subject matter jurisdiction of the court. Id., 399.

It noted that, unlike matters involving subject matter
jurisdiction, personal jurisdiction may be obtained via

consent or waiver. Id. Additionally, the Morgan court

noted that a motion to dismiss contesting personal jurisdiction must be filed within thirty days of the filing of

an appearance or such a claim would be waived. Id.;

see also Practice Book §§ 10-6, 10-7, 10-30, and 10-32.

‘‘Accordingly, we conclude that, because the written

opinion letter of a similar health care provider must be

attached to the complaint in proper form, the failure

to attach a proper written opinion letter pursuant to

§ 52-190a constitutes insufficient service of process

and, therefore, Practice Book § 10-32 and its corresponding time and waiver rule applies by its very terms.

Because we conclude that the absence of a proper written opinion letter is a matter of form, it implicates

personal jurisdiction. It is in the nature of a pleading

that must be attached to the complaint.’’ (Footnote

omitted.) Morgan v. Hartford Hospital, supra, 402; see

also Ugalde v. Saint Mary’s Hospital, Inc., 182 Conn.

App. 1, 7, 188 A.3d 787, cert. denied, 330 Conn. 928, 194

A.3d 1195 (2018); Gonzales v. Langdon, 161 Conn. App.

497, 513–14, 128 A.3d 562 (2015).

Thus, in a medical malpractice action, a plaintiff must

comply with § 52-190a by including an opinion letter

from a similar health care provider with the complaint

to establish personal jurisdiction, and a timely challenge

to the failure to include a legally sufficient opinion letter

will result in a dismissal. In a series of decisions, all of

which were issued after the 2012 motions to dismiss

and during the pendency of these proceedings before

the trial court, our court addressed how a plaintiff,

whose opinion letter to the medical malpractice complaint was defective, could avoid dismissal or otherwise

pursue his or her claim.

In Gonzales v. Langdon, supra, 161 Conn. App. 508,

we considered ‘‘whether a complaint alleging medical

malpractice that does not include a legally sufficient

opinion letter may be amended to avoid dismissal, and

under what circumstances an amendment is permitted.’’

In that case, the plaintiff alleged that the defendant, a

dermatologist who held himself out as a specialist in

cosmetic surgery, negligently performed a neck and

jowl face-lift procedure. Id., 500–501. The plaintiff

attached an opinion letter from a board certified dermatologist. Id., 501. The defendant moved to dismiss the

complaint on the basis that the opinion letter contained

insufficient details regarding the qualifications of the

author of the opinion letter. Id. In addition to her contention that the original opinion letter was, in fact,

legally sufficient, the plaintiff filed a request for leave

to amend her complaint more than thirty days from the

return date, thus past the time to amend it as of right,24

but within the applicable statutory limitation period. Id.,

501–502. Specifically, she sought to include an amended

version of the original opinion letter and a new opinion

letter authored by a board certified plastic surgeon. Id.,
501. The trial court granted the defendant’s motion to

dismiss on the basis that the original opinion letter was

not legally sufficient. Id., 502–503.

On appeal, we agreed that the original opinion letter

was insufficient because the author was not a similar

health care provider as defined by § 52-184c (c).25 Id.,

507. We then considered whether the plaintiff’s complaint could be amended and the circumstances under

which such an amendment would be permitted. Id., 508.

We reasoned that the general applicability of General

Statutes § 52-128 and Practice Book §§ 10-59 and 10-

60, the policies underlying § 52-190a (a), and judicial

economy all favored permitting an amendment filed

after the thirty days to amend as of right but before

the statute of limitations had expired. Id., 517–20. We

concluded, therefore, that the trial court had abused

its discretion by not granting the plaintiff leave to amend

the complaint with the amended original opinion letter

and the new opinion letter. Id., 521. We further determined, however, that the amended original opinion letter did not meet the requirements of §§ 52-190a and 52-

184c, and that the record was insufficient to determine

whether the new opinion letter satisfied § 52-184c (c).

Id., 523.

Next, in Ugalde v. Saint Mary’s Hospital, Inc., supra,

182 Conn. App. 3, the plaintiff alleged that the defendant, a general surgeon, negligently performed a robotassisted gastrectomy. The opinion letter attached to the

complaint failed to identify the medical qualifications

of its author. Id., 5. The defendant, therefore, moved

to dismiss the complaint on the basis of a deficient

opinion letter. Id. The plaintiff filed a request for leave

to amend the complaint by adding details to the opinion

letter regarding the author’s medical qualifications. Id.

The trial court granted the defendant’s motion, reasoning that a request for leave to amend the complaint had

been filed outside of the applicable limitation period.

Id., 6.

On appeal, the plaintiff argued only that she should

have been permitted to amend the complaint with a

more detailed opinion letter. Id., 8. In rejecting this

argument, we first noted: ‘‘In Gonzales v. Langdon,

[supra, 161 Conn. App. 510], this court held, as a matter

of first impression, that a legally insufficient opinion

letter may be cured by amendment under two circumstances. The court held: [I]f a plaintiff alleging medical

malpractice seeks to amend his or her complaint in

order to amend the original opinion letter, or to substitute a new opinion letter for the original opinion letter,

the trial court (1) must permit such an amendment

if the plaintiff seeks to amend as of right within thirty

days of the return day and the action was brought

within the statute of limitations, and (2) has discretion to permit such an amendment if the plaintiff seeks

to amend within the applicable statute of limitations
but more than thirty days after the return day. The

court may abuse its discretion if it denies the plaintiff’s

request to amend despite the fact that the amendment

would cure any and all defects in the original opinion

letter and there is an absence of other independent

reasons to deny permission for leave to amend.’’

(Emphasis added; internal quotation marks omitted.)

Ugalde v. Saint Mary’s Hospital, Inc., supra, 182 Conn.

App. 8.

The plaintiff conceded that she had failed to file her

request for leave to amend the complaint within thirty

days of the return date. Id., 8–9. We then rejected the

plaintiff’s reliance on Gonzales v. Langdon, supra, 161

Conn. App. 497, explaining: ‘‘The holding in Gonzales

permits amendment to legally insufficient opinion letters only if they are sought prior to the expiration of

the statute of limitations.’’ (Emphasis added.) Ugalde

v. Saint Mary’s Hospital, Inc., supra, 182 Conn. App. 12.

Finally, in Peters v. United Community & Family

Services, Inc., supra, 182 Conn. App. 691, the plaintiff

sued the defendant dentist, who held himself out as a

specialist in oral and maxillofacial surgery, for malpractice. The opinion letter attached to the complaint did

not indicate if its author was certified as a specialist.

Id., 692. The defendant moved to dismiss the complaint,

arguing that the opinion letter needed to be authored

by an individual trained in the same medical specialty

and certified by an American board in the same medical

specialty. Id., 693. In response, the plaintiff contended

that the author had ‘‘inadvertently left out the fact that

he was board certified’’ and sought to cure this defect

by submitting an affidavit attesting that the author had

been board certified at all relevant times. Id., 694–95.

The plaintiff, however, did not seek permission to

amend the complaint or to file an amended opinion

letter. Id., 695.

At oral argument on the motion to dismiss, the defendant argued that the court lacked discretion to consider

the affidavit because the efforts to cure the opinion

letter had occurred more than thirty days after the

return date of the complaint and after the statute of

limitations had expired. Id., 695. The court subsequently granted the defendant’s motion to dismiss. Id.,

696–97. It agreed that the letter was deficient because

it had failed to state whether the author was board

certified, and concluded that it was not necessary to

determine whether this deficiency could be remedied

by the filing of an affidavit rather than an amended

pleading because neither option remained viable due

to the expiration of the statute of limitations. Id., 697–98.

On appeal, the sole issue before this court was

‘‘whether the trial court, in ruling on the motion to

dismiss, correctly determined that our decision in Gonzales v. Langdon, supra, 161 Conn. App. 497 . . .

barred it from considering the affidavit that [the plain-
tiff] had attached to his opposition to the motion to

dismiss in an effort to cure the defect in the opinion

letter attached to the complaint.’’ Peters v. United Community & Family Services, Inc., supra, 182 Conn. App.

699.26 We concluded that the plaintiff’s efforts to correct

the deficient opinion letter had occurred after the expiration of the statute of limitations and, therefore, the

court properly granted the defendant’s motion and dismissed the action. Id.

In our analysis, we noted that, prior to our decision

in Gonzales v. Langdon, supra, 161 Conn. App. 497, our

Supreme Court had recognized that a plaintiff whose

medical malpractice action that had been dismissed for

failing to comply with the opinion letter requirements

of § 52-190a (a), could either refile the action or attempt

to seek redress via § 52-592. Peters v. United Community & Family Services, Inc., supra, 182 Conn. App.

701. We also recognized that, in Gonzales v. Langdon,

supra, 510, this court had held, for the first time, that

‘‘a plaintiff who files a legally insufficient opinion letter

may, in certain instances, cure the defective opinion

letter through amendment of the pleadings, thereby

avoiding the need to file a new action.’’ Peters v. United

Community & Family Services, Inc., supra, 701.

Turning to the facts and circumstances in Peters,

this court acknowledged that certain decisions of the

Superior Court had permitted a plaintiff to cure a defective opinion letter via a supplemental affidavit rather

than by seeking leave to file an amended pleading.

Peters v. United Community & Family Services, Inc.,

supra, 182 Conn. App. 703–704. We ultimately declined

to address that issue27 and concluded that, because the

plaintiff had failed to undertake any attempt to remedy

the defective opinion letter until after the statute of

limitations had expired, the trial court properly had

granted the motion to dismiss. Id., 705–706. ‘‘Regardless

of the type of procedure a plaintiff elects to employ to

cure a defect in an opinion letter filed in accordance

with § 52-190a, that procedure must be initiated prior

to the running of the statute of limitations. Otherwise

the sole remedy available will be to initiate a new action,

if possible, pursuant to § 52-592.’’ Id., 706.

Guided by these precedents, we return to the facts

of the present case. The plaintiff commenced her action

against Wang and the Center on April 6, 2012, and April

4, 2012, respectively. In her pleadings, she consistently

alleged that, on April 22, 2010, she suffered injuries,

namely, the burning of her toes and foot, as a result of

Wang’s professional negligence. The plaintiff’s counsel

attached a signed, good faith certificate that he had

conducted a reasonable inquiry into the circumstances

of the plaintiff’s claims and that, on the basis of that

inquiry, he believed in good faith that Wang and the

Center had been negligent in the treatment of the plaintiff. The plaintiff’s counsel, however, failed to attach a
signed opinion letter from a similar health care provider

as required by § 52-190a. Accordingly, Wang and the

Center timely moved to dismiss the plaintiff’s action

pursuant to § 52-190a (c).

On June 28, 2012, the plaintiff filed a request for leave

to file an amended complaint and a memorandum in

opposition to the 2012 motions to dismiss. In the former,

the plaintiff indicated that the purpose of the requested

amended complaint was to include a written, signed

opinion letter from a similar health care provider that

had existed at the time the complaint had been filed,

but inadvertently was not attached to the original complaint. The plaintiff’s counsel also included an affidavit

setting forth the details regarding when he had received

the opinion letter and the inadvertent failure to attach

the signed opinion letter to the complaint.

After hearing oral argument, the court issued a memorandum of decision on September 6, 2012, denying the

motions to dismiss and overruling the objection to the

plaintiff’s request for leave to amend her complaint.

The court reasoned that the plaintiff had obtained the

opinion letter prior to the commencement of her medical malpractice action, but failed to include it with her

original complaint due to inadvertence and oversight.

It further concluded that to dismiss the action would

elevate form over substance and violate the public policy of permitting a trial on the merits. On September

21, 2012, the court denied the motions to reargue and

for reconsideration filed by the Center and Wang.

Pretrial proceedings ensued over the course of several years. During the time period between the denial

of the 2012 motions and the second motion for reconsideration filed in 2018, the law concerning § 52-190a developed in our appellate courts. See, e.g., Santorso v. Bristol Hospital, 308 Conn. 338, 63 A.3d 940 (2013) (released

on April 23, 2013); Torres v. Carrese, supra, 149 Conn.

App. 596 (released on April 22, 2014); Gonzalez v. Langdon, supra, 161 Conn. App. 497 (released on December

1, 2015); Ugalde v. Saint Mary’s Hospital, Inc., supra,

182 Conn. App. 1 (released on May 15, 2018); Peters v.

United Community & Family Services, Inc., supra,

182 Conn. App. 688 (released on June 19, 2018). Significantly, our jurisprudence shifted from consideration of

whether the opinion letter had existed at the time the

plaintiff commenced the malpractice action to a focus

on whether the elected procedure to remedy a defective

opinion letter had begun prior to the expiration of the

statute of limitations.

The trial occurred in November and December, 2017.

On December 21, 2017, the jury returned a verdict for

the plaintiff. Wang, the Center, and WABBO each filed

various postverdict motions, seeking, inter alia, to set

aside the verdict, judgment notwithstanding the verdict,

and for remittitur. On June 26, 2018, Wang filed a motion

for permission to file a second motion to reconsider
the 2012 denial of the motion to dismiss. In that motion,

Wang directed the trial court to our decision in Peters

v. United Community & Family Services, Inc., supra,

182 Conn. App. 688, and described that opinion as

legally controlling and supporting the dismissal of the

medical malpractice action. The court heard oral argument on September 6, 2018.28 During this proceeding,

Wang’s counsel argued that any remedy to correct a

defect in the opinion letter must have been commenced

within the applicable statute of limitations, pursuant to

our then relatively recently released decision in Peters.

On January 3, 2019, the court issued its memorandum

of decision addressing the various postverdict motions

that had been filed. At the outset of its analysis relating

to the motion for reconsideration of the 2012 motions

to dismiss, the court recognized that, at the time of the

2012 decision denying the motions to dismiss, ‘‘the sole

relevant appellate authority was Votre v. County Obstetrics & Gynecology Group, P.C., [supra, 113 Conn. App.

585], which contained language—disputed as to

whether it was dictum or controlling—relating to the

propriety of a belated filing of an already-existing opinion letter, and it was the significance of that language

that was subject to disagreement by trial courts.’’ The

court noted that in Peters v. United Community &

Family Services, Inc., supra, 182 Conn. App. 688, our

court ‘‘held that corrective action relating to an opinion

letter from a similar health care provider had to be

undertaken within the applicable statute of limitations.’’ (Emphasis added.) Thus, the court had to consider whether our 2018 opinion in Peters necessitated

a contrary decision from the 2012 denial of the motions

to dismiss.

The court began its consideration of this statute of

limitations issue by noting that the request to amend

the complaint had been filed ‘‘substantially’’ more than

two years after the date of the plaintiff’s injury and that

there had been no claim that the plaintiff took any

ameliorative action prior to the expiration of the statute

of limitations. It then identified two related concerns

regarding the timing and nature of the 2018 requests

for reconsideration of the 2012 denial of the motions to

dismiss. First, it stated that a motion for reconsideration

generally is filed not years after the underlying decision,

but rather within days. Thus, as a general matter, only

a minimal chance exists that controlling precedent

materially will alter the relevant legal landscape. Second, the court posited whether the motions to dismiss

could be revisited six years after their initial denial and

after an intervening trial on the merits, particularly at

the trial court level.29 The court granted the motions

for reconsideration ‘‘to reconcile, or determine the

interplay between, two Appellate Court decisions,

Peters and Votre.’’

With respect to the substantive merits regarding
whether the motions to dismiss should be granted,

albeit belatedly, the court recognized that, subsequent

to the 2012 memorandum of decision, which had

focused on whether a valid opinion letter existed at the

time the medical malpractice action had been commenced, our appellate courts determined that a plaintiff

must take corrective action with respect to a defective

opinion letter within the applicable statute of limitations. Nevertheless, the court ultimately concluded that

the prior denials of the motions to dismiss should stand

for several reasons.

First, the court noted that both Peters v. United Community & Family Services, Inc., supra, 182 Conn. App.

688, and Gonzales v. Langdon, supra, 161 Conn. App.

497, concerned the correction of attached, but defective

opinion letters, whereas the plaintiff in the present case

had failed to attach the opinion letter to her complaint.30

Second, it observed that Gonzales v. Langdon, supra,

497, and Torres v. Carrese, supra, 149 Conn. App. 596,

mentioned the statute of limitations as the benchmark

for when correction of a defective opinion letter must

occur and that both of these cases had been issued

prior to the commencement of the present trial. The

court noted that neither the goal of judicial economy

nor the purpose of § 52-190a would be advanced if it

nullified the trial and the jury’s verdict based on the

statute of limitations argument advanced by Wang and

the Center. Ultimately, the court concluded: ‘‘It would

be inequitable and highly wasteful to reverse the earlier

decisions in such a belated fashion. Subject matter jurisdictional issues may be raised at any time, but other

jurisdictional issues are subject to waiver—and inferentially subject to other equitable considerations.’’

Given our decision in Peters v. United Community &

Family Services, Inc., supra, 182 Conn. App. 706, it

cannot be disputed that regardless of the method

employed to cure a defect in an opinion letter filed

pursuant to § 52-190a, such correction must be initiated

prior to the expiration of the statute of limitations. Wang

and the Center argue that the Peters holding applies in

the present case and the denials of the 2012 motions

to dismiss must be reversed. The plaintiff counters that

Wang and the Center waived this statute of limitations

argument, the purpose of § 52-190a was satisfied as a

result of the jury’s verdict, and the amendment to the

medical malpractice complaint was filed timely within

the three year statute of repose contained in § 52-584,

and, therefore, the judgment of the court must stand.31

We first consider the plaintiff’s argument that Wang

and the Center waived their statute of limitations claim

as it related to § 52-190a and Peters v. United Community & Family Services, Inc., supra, 182 Conn. App.

688. In her brief, the plaintiff notes that, as a general

matter, our courts have ‘‘made it clear that we will

not permit parties to anticipate a favorable decision,
reserving a right to impeach it or set it aside if it happens

to be against them, for a cause which was well known

to them before or during the trial.’’ (Internal quotation

marks omitted.) C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 87, 919 A.2d 1002 (2007). She then

contends that the statute of limitations argument

related to § 52-190a could have been made in the 2012

motions to dismiss; see, e.g., Bennett v. New Milford

Hospital, supra, 300 Conn. 30–31; or raised in 2014 and

2015, or when this court released its decision in Torres

v. Carrese, supra, 149 Conn. App. 596, and Gonzales v.

Langdon, supra, 161 Conn. App. 497, respectively. We

are not persuaded that Wang and the Center waived

their statute of limitations argument.

A discussion of Torres v. Carrese, supra, 149 Conn.

App. 596, is instructive. In that case, the plaintiff commenced a medical malpractice action against her obstetricians in September, 2006. Id., 601–602. She attached

to her complaint an opinion letter from a board certified

urologist. Id., 603. In November, 2006, the obstetricians

moved to dismiss the complaint on the ground that the

opinion letter had not been written by a similar health

care provider. Id., 604. The trial court ultimately denied

the motions to dismiss, reasoning that an insufficient

letter, as opposed to the absence of such a letter, was

not a sufficient ground for dismissal. Id., 605.

‘‘On January 19, 2011, the case was called for trial.

On January 31, 2011, and February 10, 2011, after our

Supreme Court released its opinion in Bennett v. New

Milford Hospital, Inc., [supra, 300 Conn. 21] (holding

in cases against specialists, author of written opinion

letter pursuant to § 52-190a (a) must be similar health

care provider as defined in § 52-184c (c), regardless of

author’s potential qualifications to testify at trial, and

insufficient written opinion letter, while not impairing

subject matter jurisdiction, requires dismissal of action

under § 52-190a (c)), the [obstetricians] each filed new

motions to dismiss the plaintiff’s complaint. On March

7, 2011, the court granted the [obstetricians’] motions

to dismiss the plaintiff’s complaint because the plaintiff

failed to attach an opinion letter from a similar health

care provider to the complaint as required by § 52-190a.’’

(Footnotes omitted; internal quotation marks omitted.)

Torres v. Carrese, supra, 149 Conn. App. 605–606.

On appeal, the plaintiff argued, inter alia, that the

obstetricians’ 2011 motions to dismiss had been filed

outside of the time period set forth by Practice Book

§ 10-30 and the trial court erred by considering and

granting them. Id., 607. The obstetricians countered

that their ‘‘2011 motions to dismiss were functionally

motions to reargue their timely filed 2006 motions to

dismiss the plaintiff’s complaint.’’ Id., 612. Due to the

unique circumstances of that case, we agreed with the

obstetricians. Id. First, we concluded that, despite their

title, the 2011 motions ‘‘essentially sought to reverse or
to modify the denials of their earlier 2006 motions to

dismiss’’ and therefore the trial court properly had concluded that, in reality, these were motions to reargue.

Id., 614.

Next, we determined that the court had not abused its

discretion by considering the 2011 motions to reargue,

despite the twenty day time period set forth in Practice

Book § 11-12 (a). Id., 614–15. We explained: ‘‘[T]he

[obstetricians], in filing their 2011 motions to dismiss,

sought reconsideration because of a newly articulated

controlling principle of law set forth by our Supreme

Court in Bennett v. New Milford Hospital, Inc., supra,

300 Conn. 1. . . . See Opoku v. Grant, 63 Conn. App.

686, 692–93, 778 A.2d 981 (2001) ([T]he purpose of a

reargument is . . . to demonstrate to the court that

there is some decision or some principle of law which

would have a controlling effect, and which has been

overlooked, or that there has been a misapprehension

of facts. . . . [A] motion to reargue . . . is not to be

used as an opportunity to have a second bite of the

apple or to present additional cases or briefs which

could have been presented at the time of the original

argument. . . .). Thus, it was reasonable for the [obstetricians] to file what amounts to a late motion to reargue before a second judge in light of the Supreme

Court’s decision in Bennett, issued almost four years

after [the trial court]issued [its] ruling on the [obstetricians’] 2006 motions to dismiss.’’ (Emphasis added;

internal quotation marks omitted.) Torres v. Carrese,

supra, 149 Conn. App. 616–17.

We further noted the particular circumstances of Torres with respect the trial court’s consideration of the

obstetricians’ motions to reconsider after an extended

time period. ‘‘The trial court correctly determined that

Bennett[v. New Milford Hospital, Inc., supra, 300 Conn.

1] was to have retroactive effect. See, e.g., Marone v.

Waterbury, 244 Conn. 1, 10, 707 A.2d 725 (1998) (‘judgments that are not by their terms limited to prospective

application are presumed to apply retroactively’). In

light of Bennett, the court was faced with a situation

in which any judgment rendered on the professional

negligence issues in favor of the plaintiff would likely

be reversed in any event. By dealing with the issue, the

court avoided the time and expense, to the state and

to the parties, of a perhaps pointless trial.’’ Torres v.

Carrese, supra, 149 Conn. App. 617 n.23.

Similar circumstances exist in the present case that

warrant and justify consideration of the argument

regarding the statute of limitations and § 52-190a, even

though it was raised approximately six years after the

initial 2012 motions to dismiss. First, Wang and the

Center, in their 2012 motions to dismiss, claimed that

the plaintiff had failed to comply with the requirements

of § 52-190a due to her counsel’s failure to include an

opinion letter, raising a challenge pertaining to personal
jurisdiction. Second, during the pendency of the proceedings, new appellate authority was released in 2018,

namely, Peters v. United Community & Family Services, Inc., supra, 182 Conn. App. 688, and that opinion

presumptively applied retroactively. The decision in

Peters, which related to the claim set forth in the 2012

motions to dismiss, expressly held that efforts to remedy a defective opinion letter must be initiated prior to

the running of the statute of limitations.32 Id., 706. Wang

and the Center may have raised this argument during

the pretrial proceedings, but we are not aware of, nor

has the plaintiff directed us to any controlling case,

statute, or rule of practice that would require them to

do so or face the consequences of waiver. For these

reasons, we are not persuaded by the plaintiff’s contention that Wang and the Center waived the argument

relating to the statute of limitations and § 52-190a.

Next, we consider the plaintiff’s contention that, as

a result of the jury’s verdict, the purpose of § 52-190a,

preventing frivolous medical malpractice actions, was

served in the present case, and, therefore, to dismiss

the medical malpractice action at this juncture would

elevate form over substance to an unreasonable degree.

We are not persuaded.

Indisputably, the purpose of § 52-190a is to prevent

frivolous medical malpractice actions, and the requirement of a letter from a similar health care provider ‘‘was

intended to address the problem that some attorneys,

either intentionally or innocently, were misrepresenting

in the certificate of good faith the information that they

obtained from the experts.’’ (Internal quotation marks

omitted.) Shortell v. Cavanagh, 300 Conn. 383, 388, 15

A.3d 1042 (2011); see also Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 55; Bennett v. New

Milford Hospital, Inc., supra, 300 Conn. 12; Barrett v.

Montesano, 269 Conn. 787, 796, 849 A.2d 839 (2004);

Votre v. County Obstetrics & Gynecology Group, P.C.,

supra, 113 Conn. App. 584.

The plaintiff argues that, because the jury found in her

favor with respect to the medical malpractice action, it

could not constitute a frivolous action. We acknowledge

the pragmatic nature of this contention. Our legislature,

however, specifically authorized the dismissal of a medical malpractice action for the failure to attach an opinion letter to the complaint. General Statutes § 52-190a

(c); Rios v. CCMC Corp., 106 Conn. App. 810, 822, 943

A.2d 544 (2008); see also Santorso v. Bristol Hospital,

supra, 308 Conn. 349 (noting mandatory dismissal

where plaintiff fails to comply with § 52-190a (c)); Morgan v. Hartford Hospital, supra, 301 Conn. 398

(Supreme Court recognized that opinion letter was akin

to pleading that must be attached to complaint in order

to commence medical malpractice action); Bennett v.

New Milford Hospital, Inc., supra, 300 Conn. 6 (trial

court was required to dismiss action as consequence
of failure to provide opinion letter); Wood v. Rutherford,

187 Conn. App. 61, 73, 201 A.3d 1025 (2019) (failure to

attach proper written opinion letter mandates dismissal

of action); Ugalde v. Saint Mary’s Hospital, Inc., supra,

182 Conn. App. 12 (if amendment to legally insufficient

opinion letter is not sought prior to expiration of statute

of limitations, dismissal is required by § 52-190a); Doyle

v. Aspen Dental of Southern CT, PC, supra, 179 Conn.

App. 492 (dismissal is mandatory remedy when plaintiff

fails to file opinion letter in compliance with § 52-190a).

As we noted in Votre v. County Obstetrics & Gynecology

Group, P.C., supra, 113 Conn. App. 584–85: ‘‘We are

bound to uphold the laws the legislature adopts. . . .

Legislative power under article third [of our state constitution] reposes in the Senate and the House of Representatives, not in the Judiciary.’’

The argument advanced by the plaintiff would effectively deprive medical providers of the ability to appeal

from an adverse ruling with respect to the existence

and sufficiency of an opinion letter following a trial on

the merits. Although we understand the practical aspect

of the plaintiff’s argument with respect to judicial economy and the fact that these proceedings occurred over

several years and culminated in a five week trial, we

decline to foreclose the ability of litigants to seek appellate review with respect to § 52-190a. Consistent with

established precedent, an appellate determination that

the trial court improperly concluded that personal jurisdiction existed has resulted in the dismissal or vacatur

of the subsequent proceedings before the trial court.

See Green v. Simmons, 100 Conn. App. 600, 606–609,

919 A.2d 482 (2007) (judgment in favor of plaintiff

reversed and remanded with direction to dismiss action

where Appellate Court determined plaintiff failed to

establish that requirements of long arm statute had been

satisfied and therefore court had improperly exercised

personal jurisdiction over defendants); see, e.g., Cogswell v. American Transit Ins. Co., 282 Conn. 505, 535,

923 A.2d 638 (2007); Narayan v. Narayan, 122 Conn.

App. 206, 216, 3 A.3d 75 (2010), rev’d on other grounds,

305 Conn. 394, 46 A.3d 90 (2012). For these reasons,

we are not persuaded by the plaintiff’s argument that

a jury verdict in a medical malpractice action would

insulate a defect in the required opinion letter from

appellate review.

Finally, the plaintiff argues, for the first time on

appeal and as an alternative ground for affirming the

verdict, that, pursuant to the repose section of § 52-

584, she timely amended her complaint to include the

opinion letter before the expiration of the three year

statute of repose.33 Under these facts and circumstances, we conclude that the two year statute of limitations applied in the present case.

We begin with language of the applicable statute of

limitations for medical malpractice actions. Section 52-
584 provides in relevant part: ‘‘No action to recover

damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct, or by

malpractice of a physician, surgeon, dentist, podiatrist,

chiropractor, advanced practice registered nurse, hospital or sanatorium, shall be brought but within two

years from the date when the injury is first sustained

or discovered or in the exercise of reasonable care

should have been discovered, and except that no such

action may be brought more than three years from

the date of the act or omission complained of . . . .’’

(Emphasis added.)

In Wojtkiewicz v. Middlesex Hospital, 141 Conn. App.

282, 60 A.3d 1028, cert. denied, 308 Conn. 949, 67 A.3d

291 (2013), we distinguished the different time periods

identified in § 52-584. ‘‘[T]his statute imposes two specific time requirements on plaintiffs. The first requirement, referred to as the discovery portion . . . requires

a plaintiff to bring an action within two years from the

date when the injury is first sustained or discovered or

in the exercise of reasonable care should have been

discovered . . . . The second provides that in no event

shall a plaintiff bring an action more than three years

from the date of the act or omission complained of.

. . . The three year period specifies the time beyond

which an action under § 52-584 is absolutely barred,

and the three year period is, therefore, a statute of

repose.’’ (Emphasis in original; internal quotation marks

omitted.) Id., 286–87; Rosato v. Mascardo, 82 Conn. App.

396, 401–402, 844 A.2d 893 (2004); see also Neuhaus v.

DeCholnoky, 280 Conn. 190, 200–201, 905 A.2d 1135

(2006).

In Lagassey v. State, 268 Conn. 723, 846 A.2d 831

(2004), our Supreme Court stated: ‘‘The limitation

period for actions in negligence begins to run on the

date when the injury is first discovered or in the exercise

of reasonable care should have been discovered. . . .

In this regard, the term injury is synonymous with legal

injury or actionable harm. Actionable harm occurs

when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action. . . . A breach of duty by

the defendant and a causal connection between the

defendant’s breach of duty and the resulting harm to

the plaintiff are essential elements of a cause of action

in negligence; they are therefore necessary ingredients

for actionable harm. . . . Furthermore, actionable

harm may occur when the plaintiff has knowledge of

facts that would put a reasonable person on notice of

the nature and extent of an injury, and that the injury

was caused by the negligent conduct of another. . . .

In this regard, the harm complained of need not have

reached its fullest manifestation in order for the limitation period to begin to run; a party need only have

suffered some form of actionable harm.’’ (Citations

omitted; internal quotation marks omitted.) Id., 748–49;
see also Barrett v. Montesano, 269 Conn. 787, 793, 849

A.2d 839 (2004); Parnoff v. Aquarion Water Co. of Connecticut, 188 Conn. App. 153, 168, 204 A.3d 717 (2019).

The focus, however, is on the plaintiff’s knowledge of

the facts, rather than the discovery of applicable legal

theories. Catz v. Rubenstein, 201 Conn. 39, 47, 513 A.2d

98 (1986).

As a general matter, the determination of whether a

plaintiff, in the exercise of reasonable care, should have

discovered actionable harm for purposes of § 52-584 is

for the trier of fact. Lagassey v. State, supra, 268 Conn.

749. Under some circumstances, however, the start of

the two year statute of limitations in a medical malpractice action may be decided as a matter of law. For

example, in Burns v. Hartford Hospital, 192 Conn. 451,

472 A.2d 1257 (1984), our Supreme Court considered

whether summary judgment properly had been rendered in favor of the defendant physician and hospital.

In that case, the two year old plaintiff had been treated

following an automobile accident. Id., 452. This medical

treatment included the insertion of intravenous tubes

into the plaintiff’s legs. Id. Approximately one week

later, the child’s left leg became swollen and red. The

physician initially diagnosed the condition as a hematoma, but after further procedures and testing, discovered an infection, likely from contaminated intravenous

tubes. Id., 452–53.

The plaintiff filed an action more than two years from

the date on which the infection in his leg was first

discovered. Id., 453. The physician and the hospital

moved for summary judgment based on the statute of

limitations. Id., 453–54. The trial court granted the

motions for summary judgment. Id., 454. Our Supreme

Court held that that the two year statute of limitations

commenced on the date the child’s mother was aware

he had an infection and not a hematoma. Id., 459–60.

‘‘Because the plaintiff did not bring suit within two

years of discovering the injury, the trial court correctly

ruled that the action was barred by the statute of limitations.’’ Id., 460.

Although the procedural posture of Burns v. Hartford Hospital, supra, 192 Conn. 451, differs from the

present case, its reasoning guides us to reject the plaintiff’s reliance on the repose section of § 52-584. In the

present case, the allegations in the complaint conclusively establish that the plaintiff had knowledge, on the

date of the incident, of the nature and extent of the

injuries to her foot. The knowledge of these facts would

put a reasonable person on notice that those injuries

were the result of Wang’s alleged negligent conduct.

To conclude otherwise would eviscerate the policies

underlying the statute of limitations. See Lindsay v.

Pierre, 90 Conn. App. 696, 701, 879 A.2d 482 (2005).

For these reasons, we reject the plaintiff’s reliance on

the repose section of § 52-584 and her claim that the
efforts to cure the opinion letter were timely.

In sum, the plaintiff failed to attach an opinion letter

as required by § 52-190a to her complaint. None of the

arguments advanced by the plaintiff disputes this fact.

Wang and the Center demonstrated that her efforts

to cure this defect were not commenced within the

statutory limitation period. We are not persuaded by

the plaintiff’s additional arguments regarding § 52-190a.

We conclude that the court did not have personal jurisdiction as to Wang and the Center and that the medical

malpractice action should have been dismissed.

II

AC 42505

In AC 42505, WABBO claims that the court improperly denied its motions for a directed verdict and to set

aside the verdict because the plaintiff did not establish

the element of causation. Specifically, WABBO argues

that it was entitled to judgment in the product liability

action because the plaintiff failed to prove how the heat

lamp came into contact with her foot. The plaintiff

responds that she satisfied her burden with respect

to the element of causation, including by means not

challenged by WABBO on appeal. We agree with the

plaintiff.

In her third amended third-party complaint (operative

third-party complaint) against WABBO,34 the plaintiff

alleged a violation of the Connecticut Product Liability

Act, General Statutes § 52-572m et seq.35 In this pleading,

the plaintiff alleged that WABBO was a foreign corporation authorized to do business in Connecticut and that

it sold the heat lamp to Wang for use in Connecticut.

She further alleged that WABBO placed the heat lamp

into the stream of commerce with the expectation that

it would reach consumers without a substantial change

in condition. On April 22, 2010, Wang used the heat

lamp, which had not been substantially changed, during

the plaintiff’s acupuncture treatment. The plaintiff

claimed that the stabilizing hardware and hydraulic

mechanisms for the head and arm of the heat lamp

were deficient and resulted in the heating element coming into contact with her foot and injuring her.

The plaintiff alleged that WABBO was negligent and

strictly liable in distributing, selling, and/or otherwise

placing the heat lamp into the stream of commerce by

failing (1) to affix a warning on the heat lamp regarding

the propensity of its arm to lower, (2) to include any

locking devices on the hydraulic mechanisms and joints

of the heat lamp, (3) to include a safety guard over the

face of the heating element, and/or (4) to provide a user

manual or instructions with the heat lamp or on its

website.36 She further alleged that ‘‘[o]ne or more of

these defects and acts of negligence described herein

was a substantial factor in causing the injuries to the

plaintiff.’’ (Emphasis added.)
Wang testified that the heat lamp he had purchased

from WABBO did not come with a manual or warnings

about the propensity of the head of the heat lamp to

fall down. He also stated that the absence of a locking

mechanism, a safety guard, a manual, or warnings made

the heat lamp unreasonably dangerous.

Sami Kuang Wu, the owner of WABBO, testified that

Wang had purchased the heat lamp in March, 2008. She

also stated that the heat lamp was shipped without

locking devices on the joints of its arms or a ‘‘safety

shield’’ between the heating element plate and the

patient. Wu further testified that the spring pistons that

provided the upward force needed to hold the heat

lamp in place would lose their function as the device

was used and eventually would no longer maintain the

placement of the heat lamp. She explained that as the

spring pistons became worn, the heat lamp had a tendency to lower inadvertently and spontaneously on its

own, and that WABBO was aware of this tendency in

2008. Wu also indicated that Wang should have received

a manual and that a warning sticker should have been

affixed to the heat lamp.

The plaintiff presented testimony from Victor A.

Popp, a registered professional engineer. Popp testified

about various locking mechanisms that could have been

used to prevent the inadvertent downward movement

of the head of the heat lamp, where the heating element

was located. He indicated that the use of a safety guard

would have prevented the heating element from coming

into contact with the skin of a patient if the arm lowered.

He opined that in 2008, both a locking mechanism and

a safety guard would have been economically and technologically feasible.

The plaintiff’s counsel asked a lengthy hypothetical

question in which Popp was to assume as true various

facts regarding the heat lamp and the April 22, 2010

incident. Popp concluded that the defective condition

of the heat lamp was a substantial factor contributing

to the plaintiff’s injuries and opined, to a reasonable

degree of engineering certainty, that the heat lamp was

in a defective condition in March, 2008, when it was sold

without a locking mechanism for the arm and without

a safety guard over the heating element and that the

inclusion of these devices on the heat lamp would have

prevented the plaintiff from being burned.

The parties presented their closing arguments on

December 19, 2017. The plaintiff’s counsel argued that

there was evidence that the heat lamp was unreasonably

dangerous due to (1) the propensity of the arm to lower,

(2) the lack of a locking mechanism on the arm, (3)

the lack of a safety guard over the heating element, (4)

the lack of a warning sticker on the heat lamp, and/or

(5) the lack of a user’s manual. The plaintiff’s counsel

specifically argued that if there had been a safety guard
over the heating element, then the plaintiff would not

have been injured. During his rebuttal argument, counsel again emphasized that the lack of a safety guard

caused the plaintiff’s injuries.

The court charged the jury on December 19 and 20,

2017. At the outset, the court instructed the jury that

the plaintiff had asserted a claim against WABBO that

the heat lamp used by Wang was unreasonably dangerous and defective. The court stated: ‘‘The plaintiff’s

specific allegations of defects and inadequate preventative measures include claims that WABBO placed the

lamp into commerce, namely, sold it to . . . Wang,

despite the absence of any warning affixed to the lamp

concerning the heat plate’s potential to cause harm and/

or injury; the negligently-designed and/or manufactured

condition of the lamp due to the failure to include adequate locking devices to prevent unintended lowering;

the failure to provide a user manual or instructions for

use with the lamp or on its website; and/or the failure

to place a heating shield of some sort in front of the

heating plate.’’ (Emphasis added.)

The court then instructed the jury as to the elements

of a claim under the Connecticut Product Liability Act.

It informed the jury that the plaintiff only needed to

prove one such deficiency or hazard in order to satisfy

the necessary elements for this cause of action. With

respect to the element of causation, the court defined

‘‘cause in fact’’ and proximate cause.

WABBO challenged the absence of proof regarding

the causation element during the evidentiary phase of

the trial and in a postverdict motion. On December 13,

2017, WABBO moved for a directed verdict, claiming

that the plaintiff failed ‘‘to remove her claims that her

injuries were caused by a defect in [WABBO’s] product

from the realm of speculation and conjecture.’’ The

court deferred its ruling on WABBO’s motion pursuant

to Practice Book § 16-37.37

On December 29, 2017, WABBO filed a motion to set

aside the jury’s verdict and incorporated the arguments

it previously had set forth in its motion for a directed

verdict. Specifically, WABBO again claimed that ‘‘the

evidence presented by the plaintiff has failed to remove

the issue of causation of her injuries from the realm of

speculation and conjecture and the plaintiff has failed

to sustain her burden of proof as to her claims of the

Connecticut [Product] Liability Act . . . .’’

In its January 3, 2019 memorandum of decision, the

trial court addressed WABBO’s causation arguments.

The court noted that the plaintiff ‘‘need not prevail on

more than one specification of negligence or product

defect, in order to sustain the verdict.’’ The court

observed that ‘‘the claimed lack of any specific mechanism for the lamp head to come into contact with the

plaintiff’s foot would not undermine the causative link
between failing to protect against a hot surface coming

into contact with the skin of a user or a user’s client/

patient. . . . [H]ow the lamp came into contact with

the plaintiff’s foot is not the issue when there is a

claim that there should have been a protective feature

or device which would have prevented an injury however the lamp might have come into contact with an

individual such as the plaintiff.’’ (Emphasis added.)

Continuing its analysis, the court stated that Wu had

acknowledged that, in 2008, it was technologically feasible and would have involved a minimal cost to add

protection over the face of the heat lamp. Wu also had

indicated that locking mechanisms for the movable arm

of the heat lamp were in use in similar products in 2008.

The court found that ‘‘WABBO, as distributor of the

product, was aware of the propensity for such lamps,

over time to lose tension such that the lamp head could

spontaneously lower. (A spring piston mechanism holds

the arm and lamp head in position, but over time and

with usage, the spring loses some of its ability to maintain the position of the lamp as originally set.) As a

progression of loss of ability to hold its position, there

would be an intermediate loss of tension, whereby some

(decreasing over time) disturbance would be sufficient

to cause a lowering, which technically would not be

‘spontaneous.’ ’’ (Footnote omitted.)

The court then determined that there was ‘‘ample’’

evidence that there was no guard or safety mechanism

to protect against contact with the head of the heat

lamp. The court concluded: ‘‘With respect to the product

liability claim . . . the jury was presented with sufficient evidence (lay and expert) that, combined with its

own common sense and experience, was sufficient to

support a finding that the [heat] lamp was defective,

and that the defect caused the injuries to the plaintiff.’’

We begin by setting forth our standard of review and

the relevant legal principles. Initially, we note that a

‘‘defendant must overcome a high threshold to prevail

on either a motion for a directed verdict or a motion

to set aside a judgment.’’ (Internal quotation marks

omitted.) Rawls v. Progressive Northern Ins. Co., 310

Conn. 768, 775, 83 A.3d 576 (2014). ‘‘A trial court should

direct a verdict only when a jury could not reasonably

and legally have reached any other conclusion. . . . In

reviewing the trial court’s decision [to deny the defendant’s motion for a directed verdict] we must consider

the evidence in the light most favorable to the plaintiff.

. . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts

proven . . . it may not resort to mere conjecture and

speculation. . . . A directed verdict is justified if . . .

the evidence is so weak that it would be proper for the

court to set aside a verdict rendered for the other party.’’

(Internal quotation marks omitted.) Demond v. Project

Service, LLC, 331 Conn. 816, 833, 208 A.3d 626 (2019);
see also Bagley v. Adel Wiggins Group, 327 Conn. 89,

102, 171 A.3d 432 (2017). The question of whether the

evidence presented by the plaintiff was sufficient to

withstand a motion for a directed verdict is a question

of law, subject to plenary review by this court. Pellet

v. Keller Williams Realty Corp., 177 Conn. App. 42,

50, 172 A.3d 283 (2017); see also Theodore v. Lifeline

Systems Co., 173 Conn. App. 291, 307, 163 A.3d 654

(2017).38

Regarding a motion to set aside the verdict, the standard for appellate review is the abuse of discretion

standard. ‘‘In determining whether there has been an

abuse of discretion, every reasonable presumption

should be given in favor of the correctness of the court’s

ruling. . . . Reversal is required only [when] an abuse

of discretion is manifest or [when] injustice appears to

have been done. . . . [T]he role of the trial court on a

motion to set aside the jury’s verdict is not to sit as [an

added] juror . . . but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached

the verdict that it did. . . . In reviewing the action of

the trial court in denying [or granting a motion] . . .

to set aside the verdict, our primary concern is to determine whether the court abused its discretion . . . .’’

(Internal quotation marks omitted.) Rendahl v. Peluso,

173 Conn. App. 66, 94–95, 162 A.3d 1 (2017); see also

Viking Construction, Inc. v. TMP Construction Group,

LLC, Conn. , , A.3d (2021).

We are mindful that ‘‘[t]his court has emphasized two

additional points with respect to motions to set aside

a verdict that are equally applicable to motions for a

directed verdict: First, the plaintiff in a civil matter

is not required to prove his case beyond a reasonable

doubt; a mere preponderance of the evidence is sufficient. Second, the well established standards compelling great deference to the historical function of the

jury find their roots in the constitutional right to a

trial by jury. . . . This standard also requires the trial

court to consider the evidence, including reasonable

inferences, in the light most favorable to the plaintiff.’’

(Citation omitted; emphasis added; internal quotation

marks omitted.) Pellet v. Keller Williams Realty Corp.,

supra, 177 Conn. App. 48–49.

The elements of a product liability action are well

established. ‘‘In a products liability action, the plaintiff

must plead and prove that the product was defective

and that the defect was the proximate cause of the

plaintiff’s injuries. . . . A product is defective when it

is unreasonably dangerous to the consumer or user.

. . . The established rule in Connecticut is that [a]

product may be defective because a manufacturer or

seller failed to warn of the product’s unreasonably dangerous propensities. . . . Under such circumstances,

the failure to warn, by itself, constitutes a defect.’’ (Cita-
tions omitted; internal quotation marks omitted.) Battistoni v. Weatherking Products, Inc., 41 Conn. App.

555, 562, 676 A.2d 890 (1996); see also Haesche v. Kissner, 229 Conn. 213, 218, 640 A.2d 89 (1994).

WABBO has challenged only the causation element

in its appeal. We note that ‘‘[p]roof that a defect in the

product caused the injury in controversy is a prerequisite to recovery for product-caused injury in every

products liability case, whether the action is grounded

on negligence, breach of warranty, strict liability in tort

. . . or a combination of such theories. . . . Theodore

v. Lifeline Systems Co., supra, 173 Conn. App. 308.

When the causation issue involved goes beyond the

field of ordinary knowledge and experience of judges

and jurors, expert testimony is required.’’ (Emphasis

added; internal quotation marks omitted.) Ferrari v.

Johnson & Johnson, Inc., 190 Conn. App. 152, 162, 210

A.3d 115 (2019); see also Sharp v. Wyatt, Inc., 31 Conn.

App. 824, 833, 627 A.2d 1347 (1993) (plaintiff must plead

and prove that defendant’s product was defective and

proximately caused injuries), aff’d, 230 Conn. 12, 644

A.2d 871 (1994); Wierzbicki v. W.W. Grainger, Inc., 20

Conn. App. 332, 334, 566 A.2d 1369 (1989) (same).

Our courts have applied the following test for causation in cases involving a claim under our Product Liability Act. ‘‘The causation inquiry has two facets: (1) causein-fact; and (2) legal or proximate cause. These two

components ask the following questions respectively:

(1) whether the defendant’s conduct was the cause-infact of the injury; and, if so; (2) whether as a matter

of social policy the defendant should be held legally

responsible for the injury. Proof of proximate cause

requires proof of both cause-in-fact and legal cause.

. . . 63 Am. Jur. 2d 55–58, Products Liability § 21

(2010). Cause-in-fact, also referred to as actual cause,

asks whether there was a sufficiently close, actual,

causal connection between the defendant’s conduct and

the actual damage suffered by the plaintiff. It requires

that there be a direct causal connection between the

negligence or product defect and the injury. That is, it

refers to the physical connection between an act and an

injury. . . . 63 Am. Jur. 2d, supra, § 24, p. 60.’’ (Internal

quotation marks omitted.) Theodore v. Lifeline Systems

Co., supra, 173 Conn. App. 308–309. ‘‘[T]he test of proximate cause is whether the defendant’s conduct is a

substantial factor in bringing about the [victim’s]

injuries.’’ (Emphasis added; internal quotation marks

omitted.) DeOliveira v. PMG Land Associates, L.P., 105

Conn. App. 369, 378, 939 A.2d 2 (2008); see also Barry

v. Quality Steel Products, Inc., 263 Conn. 424, 433, 820

A.2d 258 (2003) (test for proximate cause is whether

defendant’s conduct is substantial factor in bringing

about plaintiff’s injuries); Wagner v. Clark Equipment

Co., 243 Conn. 168, 178, 700 A.2d 38 (1997) (same).

A thorough review of the pleadings, evidence, closing
arguments, and jury charge establish that the plaintiff

alleged and presented evidence of various means in

which WABBO’s defective product, the heat lamp,

caused her injuries. In addition to the lowering of the

arm holding the heat lamp, the plaintiff maintained that

the lack of (1) a locking mechanism, (2) a safety guard,

(3) a user manual, or (4) a warning regarding the propensity of the arm to lower each constituted a substantial factor, and thus proximately caused her injuries on

April 22, 2010. In its appellate brief, WABBO focuses

primarily on the question of how the heat lamp lowered

onto the plaintiff’s foot and whether there was evidence

that this lowering occurred spontaneously or due to

some outside force. WABBO summarily contends that

the absence of a locking mechanism and the guard went

to the issue of a defect and not causation.

Contrary to the bald assertion made by WABBO, we

conclude, on the basis of our comprehensive review of

the pleadings and evidence in this case, that the plaintiff

presented to the jury alternative methods of causation

and did not limit consideration of the causation element

to how or why the arm of the heat lamp lowered. There

was sufficient evidence in the court record for the jury

to find that the lack of a safety guard over the heating

element was a substantial factor, and thus a proximate

cause, of the plaintiff’s injuries to her left foot. WABBO

did not submit jury interrogatories to specify which of

the alternative bases of causation the jury used to reach

its verdict.

In the present case, due to the lack of jury interrogatories, the only manner in which WABBO can prevail

would be to establish that the evidence was insufficient

to support any of the specifications of causation pursued by the plaintiff. See Seven Oaks Enterprises, L.P.

v. Devito, 185 Conn. App. 534, 558–59, 198 A.3d 88, cert.

denied, 330 Conn. 953, 197 A.3d 893 (2018); Jackson v.

H.N.S. Management Co., 109 Conn. App. 371, 372–73,

951 A.2d 701 (2008). It failed, however, to challenge the

claims that the lack of a locking mechanism, safety

guard, user manual or warning regarding the propensity

of the arm of the heat lamp to lower was a substantial

factor, and thus the proximate cause, of the burns suffered by the plaintiff. The failure to challenge these

matters is fatal to WABBO’s appeal. Accordingly, we

conclude that the court properly denied WABBO’s

motions for a directed verdict and to set aside the verdict.

The judgment is reversed with respect to the medical

malpractice claims against Wang and the Center for

Women’s Health, P.C., and the case is remanded with

direction to render judgment dismissing those claims

against them; the judgment with respect to the product

liability claim is affirmed.

In this opinion the other judges concurred.

1 As a result of this conclusion, we need not reach the other claims raised
by Wang and the Center in AC 42469 and AC 42493.

2 The court, Hon. Kenneth B. Povodator, judge trial referee, issued a fiftytwo page memorandum of decision on January 3, 2019, addressing various

motions, including motions for permission to file a late motion to reargue

and motions for reconsideration of the 2012 motions to dismiss, motions

for directed verdict, motions to set aside the verdict, a motion for remittitur

and a motion for judgment notwithstanding the verdict.

3 Pursuant to a user brochure introduced into evidence, the heat lamp

promoted metabolism, regulated physiological deficiencies, diminished

inflammation and eased pain, tissue injuries, arthritis, and various skin

conditions. This device contained a round plate coated with thirty-three

elements and was activated by a built-in heating element. The mineral plate

then emitted ‘‘a special band of electromagnetic waves’’ that were absorbed

by the patient’s body.

4

‘‘The action was commenced in April, 2012. In December of that year

. . . Wang sought to implead [WABBO] the distributor of the heat lamp

that caused the injury to the plaintiff . . . . After the motion was granted,

and a third-party complaint served on [WABBO], the plaintiff amended her

complaint so as to assert a direct claim against . . . [WABBO]. Early in

the trial . . . Wang withdrew his complaint directed to . . . WABBO.’’ See

part II of this opinion.

5 The heat lamp brochure introduced into evidence cautioned that the

head of the heat lamp should not be touched during operation. It further

instructed that the head of the lamp should be positioned eight to twelve

inches away from the patient.

6 The plaintiff was unaware of how the head of the heat lamp ended up

on her foot. When Wang returned to the treatment room, ‘‘he did not notice

or observe whether the lamp assembly had tipped over or whether the arm

supporting the lamp head had descended.’’

7

‘‘[P]rofessional negligence or malpractice . . . [is] defined as the failure

of one rendering professional services to exercise that degree of skill and

learning commonly applied under all the circumstances in the community

by the average prudent reputable member of the profession with the result of

injury, loss, or damage to the recipient of those services. . . . Furthermore,

malpractice presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill.’’ (Emphasis

omitted; internal quotation marks omitted.) Votre v. County Obstetrics &

Gynecology Group, P.C., 113 Conn. App. 569, 576, 966 A.2d 813, cert. denied,

292 Conn. 911, 973 A.2d 661 (2009).

8

‘‘A motion to dismiss admits all facts well pleaded and invokes any

record that accompanies the motion, including supporting affidavits that

contain undisputed facts. . . . In a medical malpractice action, despite the

allegations in the plaintiff’s complaint, it is proper to consider undisputed

facts contained in affidavits when deciding a motion to dismiss if the affidavits provide independent evidence of the nature of a defendant’s medical

practice. . . . Where . . . the motion [to dismiss] is accompanied by supporting affidavits containing undisputed facts, the court may look to their

content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint. . . . Generally, [i]f affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking,

and the plaintiff fails toundermine this conclusion with counteraffidavits

. . . or other evidence, the trial court may dismiss the action without further

proceedings. . . . If, however, the defendant submits either no proof to

rebut the plaintiff’s jurisdictional allegations . . . or only evidence that fails

to call those allegations into question . . . the plaintiff need not supply

counteraffidavits or other evidence to support the complaint, but may rest on

the jurisdictional allegations therein. . . . As a general matter, the burden

is placed on the defendant to disprove personal jurisdiction.’’ (Citations

omitted; internal quotation marks omitted.) Carpenter v. Daar, 199 Conn.

App. 367, 381–82, 236 A.3d 239, cert. granted, 335 Conn. 962, 239 A.3d

1215 (2020).

In the event, however, that the motion to dismiss raises a factual question

that is not determinable from the record, the plaintiff bears the burden of

proof to present evidence to establish jurisdiction, and due process may

require an evidentiary hearing. LaPierre v. Mandell & Blau, M.D.’s, P.C.,

202 Conn. App. 44, 49 n.3, 243 A.3d 816 (2020).

9 General Statutes § 20-206aa (3) provides: ‘‘ ‘The practice of acupuncture’

means the system of restoring and maintaining health by the classical and

modern Oriental medicine principles and methods of assessment, treatment
and prevention of diseases, disorders and dysfunctions of the body, injury,

pain and other conditions. ‘The practice of acupuncture’ includes:

(A) Assessment of body function, development of a comprehensive treatment plan and evaluation of treatment outcomes according to acupuncture

and Oriental medicine theory;

(B) Modulation and restoration of normal function in and between the

body’s energetic and organ systems and biochemical, metabolic and circulation functions using stimulation of selected points by inserting needles,

including, trigger point, subcutaneous and dry needling, and other methods

consistent with accepted standards within the acupuncture and Oriental

medicine profession;

(C) Promotion and maintenance of normal function in the body’s energetic

and organ systems and biochemical, metabolic and circulation functions by

recommendation of Oriental dietary principles, including, use of herbal and

other supplements, exercise and other self-treatment techniques according

to Oriental medicine theory; and

(D) Other practices that are consistent with the recognized standards of

the acupuncture and Oriental medicine profession and accepted by the

National Certification Commission for Acupuncture and Oriental Medicine.’’

See generally General Statutes § 20-206bb (setting forth licensing requirement for persons engaging in practice of acupuncture in Connecticut).

10 The plaintiff alleged that she suffered third degree burns to her left foot

and toes, a broken toe, an infection of a bone in her toe, permanent deformity

and scarring of her left toes, foot and leg, permanent pain in her left foot,

loss of sensation and numbness in her left toes and foot, and physiological,

psychological, and neurological sequelae and required a five day admission

to the burn unit of a New York hospital, multiple skin graft surgeries, and

multiple debriding procedures.

11 General Statutes § 52-184c (b) provides: ‘‘If the defendant health care

provider is not certified by the appropriate American board as being a

specialist, is not trained and experienced in a medical specialty, or does

not hold himself out as a specialist, a ‘similar health care provider’ is one

who: (1) Is licensed by the appropriate regulatory agency of this state or

another state requiring the same or greater qualifications; and (2) is trained

and experienced in the same discipline or school of practice and such

training and experience shall be as a result of the active involvement in the

practice or teaching of medicine within the five-year period before the

incident giving rise to the claim.’’

12 General Statutes § 52-190a (a) provides: ‘‘No civil action or apportionment complaint shall be filed to recover damages resulting from personal

injury or wrongful death occurring on or after October 1, 1987, whether in

tort or in contract, in which it is alleged that such injury or death resulted

from the negligence of a health care provider, unless the attorney or party

filing the action or apportionment complaint has made a reasonable inquiry

as permitted by the circumstances to determine that there are grounds for

a good faith belief that there has been negligence in the care or treatment

of the claimant. The complaint, initial pleading or apportionment complaint

shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith

belief that grounds exist for an action against each named defendant or for

an apportionment complaint against each named apportionment defendant.

To show the existence of such good faith, the claimant or the claimant’s

attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion of a similar

health care provider, as defined in section 52-184c, which similar health

care provider shall be selected pursuant to the provisions of said section,

that there appears to be evidence of medical negligence and includes a

detailed basis for the formation of such opinion. Such written opinion shall

not be subject to discovery by any party except for questioning the validity

of the certificate. The claimant or the claimant’s attorney, and any apportionment complainant or apportionment complainant’s attorney, shall retain the

original written opinion and shall attach a copy of such written opinion,

with the name and signature of the similar health care provider expunged,

to such certificate. The similar health care provider who provides such

written opinion shall not, without a showing of malice, be personally liable

for any damages to the defendant health care provider by reason of having

provided such written opinion. In addition to such written opinion, the court

may consider other factors with regard to the existence of good faith. If

the court determines, after the completion of discovery, that such certificate

was not made in good faith and that no justiciable issue was presented
against a health care provider that fully cooperated in providing informal

discovery, the court upon motion or upon its own initiative shall impose

upon the person who signed such certificate or a represented party, or both,

an appropriate sanction which may include an order to pay to the other

party or parties the amount of the reasonable expenses incurred because

of the filing of the pleading, motion or other paper, including a reasonable

attorney’s fee. The court may also submit the matter to the appropriate

authority for disciplinary review of the attorney if the claimant’s attorney

or the apportionment complainant’s attorney submitted the certificate.’’

(Emphasis added.)

13 Practice Book § 10-30 provides in relevant part: ‘‘(a) A motion to dismiss

shall be used to assert . . . (2) lack of jurisdiction over the person . . . .

‘‘(b) Any defendant, wishing to contest the court’s jurisdiction, shall do

so by filing a motion to dismiss within thirty days of the filing of an appearance. . . .’’ The plaintiff does not dispute that the motion to dismiss filed

by the Center and joined by Wang was timely.

14 In its memorandum of law in support of the motion to dismiss, the Center

argued: ‘‘The civil summons signed by [the] plaintiff’s counsel contains the

case code of T 28 which is the code for Medical Malpractice. Appended to

the complaint is a document entitled ‘Certificate,’ which is signed by the

plaintiff’s attorney and which states in part, ‘I . . . hereby certify that I have

made reasonable inquiry, as permitted by the circumstances, to determine

whether there are grounds for a good faith belief that there has been negligence in the case and treatment of the plaintiff . . . . This inquiry has given

rise to a good faith belief on my part that grounds exist for an action against

the defendants . . . .’ ’’ (Footnote omitted.)

15 The opinion letter attached to the first amended complaint provided:

‘‘OPINION

PURSUANT TO C.G.S., SECTION 52-190a

‘‘Dear Mr. Lichtenstein:

‘‘Thank you for asking me to review the case of Judith Kissel. As you

know, I am a licensed acupuncturist. In my role as a licensed acupuncturist,

I am familiar with the standard of care as it relates to the practice of

acupuncture in the United States. At your request, I have read and reviewed

the following medical records of Judith Kissel:

•Records from the Center for Women’s Health

•Records from the Stamford Hospital

‘‘Based upon my review of the medical records, it is my opinion that there

was negligence in the care and treatment of Judith Kissel by Reed Wang,

L.Ac on April 22, 2010 at the Center for Women’s Health. The standard of

care dictates that patients receiving acupuncture must be positioned a safe

distance from any piece of equipment that has the potential to injure the

patient. In addition, the patient needs to be appropriately monitored to

ensure that the patient remains safe throughout the acupuncture procedure.

In this case, Ms. Kissel’s left foot was burned on a heat lamp while she was

receiving acupuncture from Reed Wang, L.Ac. Mr. Wang was negligent in

his placement and/or monitoring of Ms. Kissel during the acupuncture procedure. Mr. Wang’s departure from the standard of care was a substantial

factor in causing the thermal burn to Ms. Kissel’s left foot.

‘‘My opinion that there was negligence on the part of Mr. Wang is based

upon my review of the medical records as well as my education, training,

and experience. The opinion stated herein is based upon the information

available to me at this time. Should other information and evidence become

available, I reserve the right to supplement and/or amend this opinion.’’

(Emphasis omitted.)

16 The plaintiff attached a copy of a letter requesting the licensed acupuncturist to review the facts of this case. This letter provided in relevant part:

‘‘Thank you for agreeing to review this case. It involves a 52 y/o who scheduled her first acupuncture session with Dr. Reed Wang who provides his

service at the OB/GYN office of Center for Women’s Health in Stamford.

During this session on April 22, 2010, a heat lamp was set up and Dr. Wang

exited the room. At some point, this heat lamp fell onto Ms. Kissel’s left

foot. Dr. Wang and obstetrician, Dr. Joel Evans, took Ms. Kissel to Stamford

ED where she was diagnosed with 3rd degree and 2nd degree burns to the

left great toe as well as the dorsum aspect of the foot and the left second

toe. She has had multiple surgeries and skin grafts as a result.

‘‘The medical records are skimpy because Dr. Wang did not write a note

in her chart pertaining to this incident. Only Dr. Evans made a notation

after the fact. We are looking to you for comment on this incident and Dr.

Wang’s care and treatment as an acupuncturist.
‘‘When you have completed your review, please call Attorney Joel Lichtenstein at your earliest convenience to discuss.’’

17 The Center disputed, inter alia, that the opinion letter had existed prior

to the commencement of the medical malpractice action and that the author

of the opinion letter had been sent the plaintiff’s medical records. The Center

argued additionally that an evidentiary hearing was required to resolve the

disputed facts set forth in the affidavit from the plaintiff’s counsel and that

the plaintiff could not amend her complaint to include the opinion letter.

18 Specifically, the court quoted the following language from our decision:

‘‘Given the fallibility existing in the legal profession . . . it is possible that

a written opinion of a similar health care provider, existing at the time of

commencement of an action, might be omitted through inadvertence. In

such a scenario, it certainly may be within the discretionary power of the

trial judge to permit an amendment to attach the opinion, and, in so doing,

deny a pending motion to dismiss. Such a discretionary action would not

be at variance with the purpose of § 52-190a, to prevent groundless lawsuits

against health care providers.’’ (Footnote omitted.) Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn. App. 585.

19 Wang, the Center, and WABBO filed a number of various postverdict

motions that extended the appellate process.

20 See, e.g., Estela v. Bristol Hospital, Inc., 179 Conn. App. 196, 203–21,

180 A.3d 595 (2018) (discussing applicability of § 52-592).

21 The court granted the motions for permission to file a second motion

for reconsideration.

22 Citing Peters v. United Community & Family Services, Inc., supra, 182

Conn. App. 705, Wang argues that this court should apply the plenary standard of review when considering a trial court’s decision regarding a motion

to dismiss. We note that our Supreme Court has stated that there is no

meaningful distinction between plenary and de novo review and that it has

used those terms interchangeably. Ammirata v. Zoning Board of Appeals,

264 Conn. 737, 746 n.13, 826 A.2d 170 (2003); see also Sherman v. Ronco,

294 Conn. 548, 554 n.10, 985 A.2d 1042 (2010).

23 General Statutes § 52-592 (a) provides: ‘‘If any action, commenced within

the time limited by law, has failed one or more times to be tried on its

merits because of insufficient service or return of the writ due to unavoidable

accident or the default or neglect of the officer to whom it was committed,

or because the action has been dismissed for want of jurisdiction, or the

action has been otherwise avoided or defeated by the death of a party or

for any matter of form; or if, in any such action after a verdict for the

plaintiff, the judgment has been set aside, or if a judgment of nonsuit has

been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if

the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b)

of this section, for the same cause at any time within one year after the

determination of the original action or after the reversal of the judgment.’’

24 See General Statutes § 52-128 and Practice Book § 10-59.

25 Specifically, we stated: ‘‘The original opinion letter was authored by a

board certified dermatologist, who did not claim to have any training or

experience in cosmetic surgery, let alone a certification in plastic surgery

or cosmetic surgery. Although the board certified dermatologist claimed to

know the relevant standard of care and that [the defendant] breached that

standard, this is not sufficient to meet the requirements of § 52-184c (c).

. . . The plaintiff was required to obtain an opinion letter authored by a

health care provider with experience and training in cosmetic surgery, and

with board certification in cosmetic surgery or in a specialty requiring greater

training and experience. Both of these requirements are missing from the

original opinion letter.’’ (Citation omitted.) Gonzales v. Langdon, supra, 161

Conn. App. 507.

26 The plaintiff conceded that, based on the allegations set forth in his

complaint, he was required to provide an opinion letter from a doctor trained

and board certified in oral and maxillofacial surgery, and that the opinion

letter attached to the complaint did not set forth these required details.

Peters v. United Community & Family Services, Inc., supra, 182 Conn.

App. 699.

27 Specifically, we stated: ‘‘Although at this juncture it would seem prudent

for a plaintiff to follow the corrective measures approved in Gonzales, we

do not decide at this time whether a trial court has the authority to permit

alternative procedures, such as the use of a clarifying affidavit, to remedy

a defective opinion letter.’’ Peters v. United Community & Family Services,

Inc., supra, 182 Conn. App. 705 n.10.
In Carpenter v. Daar, 199 Conn. App. 367, 389–90, 236 A.3d 239, cert.

granted, 335 Conn. 962, 239 A.3d 1215 (2020), we subsequently held that in

the case of a defective opinion letter, a plaintiff must amend the complaint

and not use a subsequently filed supplemental affidavit from the author of the

opinion letter to cure said defect. Our Supreme Court granted certification

in that case, limited to the following issue: ‘‘Did the Appellate Court properly

uphold the trial court’s dismissal of the plaintiff’s medical malpractice action

for failure to comply with . . . § 52-190a?’’ Carpenter v. Daar, 335 Conn.

962, 239 A.3d 1215 (2020).

28 Six days later, the Center joined Wang’s June 26, 2018 motion. In this

motion, the Center argued that ‘‘[t]he issues as to the Center and . . . Wang

are identical as to the same motion to dismiss and ruling applied to the

Center. . . . The undersigned defendant does not seek to further brief or

argue any of the issues and relies upon the motion that was filed by . . .

Wang . . . and the oral argument that took place on the motion on September 6, 2018. To avoid inconsistent rulings between [Wang and the Center]

who filed identical motions to dismiss and received the same ruling, the

[Center] seeks to join this motion for reconsideration.’’

29 Perhaps presciently, the court aptly noted: ‘‘There seems to be no identified impediment to the [Center and Wang] raising the issue on appeal—

notwithstanding the earlier denial of the motions to dismiss, Peters is claimed

to represent the current accurate state of the law, and no reason had been

identified why it would not be applicable prior to final judgment in this

case, if in fact that decision controls the jurisdictional issue first raised

more than six years ago.’’

30 For the purposes of our analysis, whether the opinion letter was missing

from the complaint or was deficient in some other manner appears to

constitute a distinction without a difference. Under both scenarios, the

result is a defective letter pursuant to § 52-190a.

31 The plaintiff does not argue that the judgment should be affirmed based

on the reasoning utilized in the court’s 2012 memorandum of decision—

that is, the court had discretion to permit the plaintiff to amend the medical

malpractice complaint to include the opinion letter because the opinion

letter had been in existence at the time that the action was commenced.

32 In Torres v. Carrese, supra, 149 Conn. App. 611 n.14, we mentioned that

the court could not consider an opinion letter that had been obtained after

the action had been commenced, after the motions to dismiss had been

filed, and after the statute of limitations had expired. This reference to the

statute of limitations is not the equivalent of the specific holding of Peters

v. United Community & Family Services, Inc., supra, 182 Conn. App. 706,

that efforts to cure a defect in an opinion letter must be initiated prior to

the expiration of the statute of limitations.

33 In the January 3, 2019 postverdict memorandum of decision, the court

did not address the three year repose section of § 52-584. It did note, however,

that the plaintiff’s request to amend her complaint ‘‘was filed substantially

more than two years after the date of the occurrence . . . [and that] [t]here

is no claim that the corrective action taken by the plaintiff occurred prior

to the expiration of the statute of limitations.’’

34 On February 6, 2013, Wang filed a third-party complaint against WABBO.

Approximately one month later, the plaintiff filed a third-party complaint

against WABBO. At the start of the trial, Wang withdrew his action

against WABBO.

35 General Statutes § 52-572m (b) provides in relevant part: ‘‘ ‘Product

liability claim’ includes all claims or actions brought for personal injury

. . . caused by the manufacture, construction, design . . . warnings,

instructions, marketing, packaging or labeling of any product. ‘Product liability claim’ shall include, but is not limited to, all actions based on the following

theories: Strict liability in tort; negligence; breach of warranty, express or

implied; breach of or failure to discharge a duty to warn or instruct, whether

negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent.’’ See generally Allard v. Liberty Oil Equipment Co., 253

Conn. 787, 799–800, 756 A.2d 237 (2000) (complaint set forth ‘‘classic allegations of product liability’’); Gajewski v. Pavelo, 36 Conn. App. 601, 611, 652

A.2d 509 (1994) (noting that current statutory scheme intended to merge

various common-law theories of product liability into one cause of action),

aff’d, 236 Conn. 27, 670 A.2d 318 (1996).

36 See, e.g., Wagner v. Clark Equipment Co., 243 Conn. 168, 174–75, 700

A.2d 38 (1997) (plaintiff filed product liability action alleging theories of

strict liability for defective design, strict liability for failure to warn or

instruct, negligent design, and negligent failure to warn or instruct).
37 Practice Book § 16-37 provides: ‘‘Whenever a motion for a directed

verdict made at any time after the close of the plaintiff’s case-in-chief is

denied or for any reason is not granted, the judicial authority is deemed to

have submitted the action to the jury subject to a later determination of

the legal questions raised by the motion. The defendant may offer evidence

in the event the motion is not granted, without having reserved the right to

do so and to the same extent as if the motion had not been made. After

the acceptance of a verdict and within the time stated in Section 16-35 for

filing a motion to set a verdict aside, a party who has moved for a directed

verdict may move to have the verdict and any judgment rendered thereon

set aside and have judgment rendered in accordance with his or her motion

for a directed verdict; or if a verdict was not returned such party may move

for judgment in accordance with his or her motion for a directed verdict

within the aforesaid time after the jury has been discharged from consideration of the case. If a verdict was returned, the judicial authority may allow

the judgment to stand or may set the verdict aside and either order a new

trial or direct the entry of judgment as if the requested verdict had been

directed. If no verdict was returned, the judicial authority may direct the

entry of judgment as if the requested verdict had been directed or may order

a new trial.’’

38 In Pellet v. Keller Williams Realty Corp., supra, 177 Conn. App. 42, we

noted that some of our decisions had applied the abuse of discretion standard

when reviewing the granting of a motion for a directed verdict. ‘‘[A] line of

cases out of this court has stated that we review a trial court’s granting of

a motion for a directed verdict for an abuse of discretion. . . . In tracing

the origins of this assertion, it is clear that this standard improperly became

conflated at one point with the standard of review for challenges to the

grant or denial of motions to set aside a verdict. . . . In any event, because

we are bound by the precedent of our Supreme Court as the ultimate arbiter

of state law; see Stuart v. Stuart, 297 Conn. 26, 45–46, 996 A.2d 259 (2010);

we apply the standard of review that it has held proper for a challenge to

a trial court’s granting of a motion for a directed verdict. That standard is

plenary. See, e.g., Curran v. Kroll, [303 Conn. 845, 855, 37 A.3d 700 (2012)].’’

(Citations omitted.) Pellet v. Keller Williams Realty Corp., supra, 50 n.9.