HARTFORD, Conn. (Legal Newsline) - A woman who won a $1 million jury award over burns she suffered while being treated with a “miracle lamp” in an acupuncture salon had the verdict against the salon tossed out but an appeals court upheld a products liability claim against the lamp’s manufacturer.
Plaintiff Judith Kissel failed to comply with Connecticut law by attaching a healthcare provider’s opinion letter to her malpractice complaint against the acupuncturist, the state Appellate Court ruled in a June 29 opinion. The trial court incorrectly accepted Kissel’s argument she had the opinion letter and forgot to attach it, the appeals court ruled, and allowed her claims to proceed to trial despite the fact they violated the state’s two-year statute of limitations.
The manufacturer of the heat lamp wasn’t so lucky. Her product liability claims were valid and the jury verdict stands, the court ruled.
Kissel sued her acupuncturist, the Center for Women’s Health and Healthy Body World Supply, also known as WABBO, after she sustained burns to her foot that she blamed on WABBO’s Miracle Lamp. She accused the acupuncturist of malpractice and said the Miracle Lamp, which produces 500 degrees of heat, was defective. She was injured in April 2010 and sued two years later.
Women’s Health moved to dismiss the lawsuit based on Kissel’s failure to attach a healthcare provider’s opinion supporting the malpractice claim within the two-year statute of limitations. The trial judge denied the motion, allowing Kissel to cure the defect in her complaint by allowing her to attach the letter later.
On appeal, Kissel argued the trial judge applied Connecticut’s three-year statute of repose to her malpractice claims. But the appeals court, in an opinion by Judge Joan Alexander, disagreed, ruling that the complaint should have been dismissed under the stricter medical malpractice statute. Without the opinion letter, the lawsuit suffered from insufficient service of process and the trial court lacked jurisdiction to try the defendant.
That left the heat manufacturer on the hook for at least 80% of the verdict. Evidence at trial suggested the lamp either fell or was allowed to get too close to her skin when she was left unattended and the acupuncturist didn’t respond “promptly to her cries of help.” WABBO argued the plaintiff failed to prove its product was the cause of her injuries. But the plaintiff argued the lamp was sold without warning labels or a mechanism to prevent the arm holding the lamp from descending onto the patient’s skin.
“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,” the court concluded.