The Connecticut Appellate Court has sided with a lower court in favor of Johnson & Johnson in a product liability suit by a man who underwent a spinal surgery that involved one of the company's products.

That product, a titanium rod, fractured during surgery at Hartford Hospital. It caused destabilization of plaintiff Raymond Ferrari's thoracic and lumbar spine, along with muscle spasms, pain and instability in his thoracic and lumbar spine, according to the March 2016 lawsuit.

But the appellate court ruled 3-0 Friday in favor of Johnson & Johnson's motion for summary judgment, saying the plaintiff had failed to produce an expert witness and that he could not establish the product was defective.

Court records show both sides had mutually agreed to disclose all expert witnesses by Jan. 15, 2017. But the plaintiff never brought forward any expert witnesses, and three months later Johnson & Johnson filed for summary judgment. However, the plaintiff claimed in court papers that a product defect can be inferred from the evidence without expert testimony, and that genuine issues of material fact existed as to whether there were adequate warnings on the product label. Ferrari also argued that expert testimony was not required to prove causation because “there is no dispute that the defendants product failed.”

The appellate court disagreed, and maintained the surgery at issue was complex and that expert testimony was needed to establish causation. The court also noted that Dr. Paul Schwartz, who performed the procedure, spoke to Ferrari about possible dangers of the surgery before the operation.

“The product at issue in the present case is a complex product: a spinal system which includes stabilizing titanium rods that are implanted into the patient's spine,” wrote appellate court Judge Bethany Alvord. “The implanted product components consist of 15 screws, two rods and two transverse transconnectors. Accordingly, we agree with the trial court's determination that expert testimony was required to establish causation.”

The plaintiff served a four-count complaint on Johnson & Johnson, alleging product defect claims under the Connecticut Product Liability Act and breaches of express and implied warranty.

But the appellate court found the plaintiff admitted “that the defendants' product was accompanied by adequate warnings in the product insert.”

“What the plaintiff claims is at issue, however, is whether, not withstanding the written warnings, the defendants' product representative, by his oral communications to Dr. Schwartz, nullified the written warnings in the insert and rendered the warnings inadequate,” Alvord noted for a panel that included Judges Michael Sheldon and Joseph Pellegrino.

Johnson & Johnson said the warnings remained in play. The company's attorneys told the Connecticut Law Tribune Monday the product is safe and that Schwartz gave adequate communication to Ferrari.

“They did not have expert witnesses and the doctor who implanted the device said it was a safe and effective device. They tried a fusion and it did not fuse,” said defense counsel W. Kennedy Simpson, a principal with Kentucky-based Thompson Miller & Simpson. ”We expected this ruling. It was pretty clear we were entitled to summary judgment. There are no appealable issues.”

Simpson added: “Johnson & Johnson was pleased with the result and thought it upheld the quality of their product.”

Assisting Simpson was Christopher Lynch of Hartford's Ryan Ryan Deluca.

Plaintiff's counsel, Andrew Skolnick of Milford-based Harlow, Adams & Friedman, did not respond to a request  for comment Monday, and it was unclear whether his client Ferrari would appeal to the Connecticut Supreme Court.

It's not clear why the titanium rod fractured, but Alvord wrote: “The product was sold with a package insert containing several warnings about the risk of the product failure and breakage.” One factor, Alvord noted, could include the patient's weight that could “have an effect on the stresses to which the implant is subjected, and therefore on the life of the implant.” The court noted that Ferrari was 267 pounds at the time of the surgery.