Bifolck v. Philip Morris, Inc., SC 19310
| Decision Date | 29 December 2016 |
| Docket Number | SC 19310 |
| Citation | 324 Conn. 362,152 A.3d 1183 |
| Court | Connecticut Supreme Court |
| Parties | Vincent BIFOLCK, Executor (Estate of Jeanette D. Bifolck), et al. v. PHILIP MORRIS, INC. |
David S. Golub, with whom were Jonathan M. Levine and, on the brief, Marilyn J. Ramos, for the appellants (plaintiffs).
John C. Massaro, with whom were Francis H. Morrison III and, on the brief, Anthony J. Franze, pro hac vice, John B. Daukas, pro hac vice, John M. Tanksi and Michael K. Murray, for the appellee (defendant).
Jonathan M. Hoffman, pro hac vice, Cristin E. Sheehan and Kaelah M. Smith filed a brief for the Product Liability Advisory Council, Inc., as amicus curiae.
Daniel S. Rawner and Kenneth J. Parsigian, pro hac vice, filed a brief for the Chamber of Commerce of the United States of America as amicus curiae.
George Jepsen, attorney general, Gregory T. D'Auria, solicitor general, and Phillip Rosario, Jonathan J. Blake and Thomas J. Saadi, assistant attorneys general, filed a brief for the state of Connecticut et al. as amici curiae.
John J. Robinson and Cullen W. Guilmartin filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.
Randall L. Goodden filed a brief for the International Product Safety and Liability Prevention Association as amicus curiae.
Jennifer M. DelMonico, Proloy K. Das, Eric B. Miller and Terence J. Brunau filed a brief for the Connecticut Business and Industry Association et al. as amici curiae.
Brenden P. Leydon filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
Larry A. Tawwater, Alinor Sterling and Jeffrey R. White filed a brief for the American Association for Justice as amicus curiae.
Michael G. Rigg filed a brief for Aaron D. Twerski et al. as amici curiae.
Rogers, C.J., and Zarella, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.
This case is the second of two diversity actions in which the federal courts certified questions for this court's advice regarding the viability of an action under Connecticut's Product Liability Act (act)1 alleging that a cigarette's design had increased consumers' risk of cancer
. The courts sought advice whether specific theories advanced in those actions are precluded by this court's adoption of § 402A of the Restatement (Second) of Torts, which imposes liability for defective products that are "unreasonably dangerous," and more particularly, our adoption of comment (i) to § 402A, which defines that term in relation to
consumers' knowledge of the danger.2 In the first of these actions, this court advised that the strict liability theory advanced was not precluded because it required application of our modified consumer expectation test, under which the obviousness of the danger is only one of many factors that the trier of fact may consider. Izzarelli v. R.J. Reynolds Tobacco Co. , 321 Conn. 172, 177, 136 A.3d 1232 (2016).
In the present action, this court considers three substantive questions: (1) whether, for claims alleging design defects, we should abandon our dual tests based on § 402A of the Restatement (Second) of Torts and adopt the standards under the Restatement (Third) of Torts, Products Liability; (2) if not, whether § 402A and comment (i) provide a single, unitary definition for all theories under which product liability claims may be brought, including negligence; and (3) whether the punitive damages available in the act are limited to litigation costs under our common-law punitive damages rule. This court raised the first question; we accepted certification with respect to the second and third questions, pursuant to General Statutes § 51–199b(d), from the United States District Court for the District of Connecticut. See Bifolck v. Philip Morris, Inc. , Docket No. 3:06cv1768 (SRU), 2014 WL 585325 (D. Conn. February 14, 2014).
For the reasons that follow, we decline at this time to adopt the Restatement (Third). Nonetheless, we are persuaded that modest refinements to our product liability tests under the Restatement (Second) will clarify the plaintiff's burden of proof in strict liability cases and provide a better guide to any necessity for adopting the Restatement (Third) or any other substantive change. We further conclude that, although all product liability claims require proof of a "defective condition unreasonably dangerous" to the user or consumer, unreasonably dangerous is not determined by consumer expectations under comment (i) to § 402A when such a claim may be brought under a theory of negligence. Finally, we conclude that punitive damages under the act are not limited by the common-law rule. Accordingly, we answer both of the certified questions "No."
The following facts and procedural history gave rise to the issues presently before us. The plaintiff, Vincent Bifolck, individually and as executor of the estate of his wife, Jeanette D. Bifolck (decedent), commenced this action in the District Court against the defendant, Philip Morris, Inc., after the decedent succumbed to lung cancer
at the age of forty-two. The principal thrust of the complaint is that the Marlboro and Marlboro Light cigarettes manufactured by the defendant and smoked by the decedent were defectively designed and that this defective design was responsible for her lung cancer and death from that disease. The plaintiff sought compensatory damages, as well as statutory punitive damages under General Statutes § 52–240b.
One count of the complaint asserted a product liability claim under the act, but set forth separate allegations
in support of theories of strict liability and negligence.3 With respect to strict liability, the plaintiff alleged that the defendant's cigarettes were defective and unreasonably dangerous in that their design rendered the cigarettes unnecessarily addictive and unnecessarily carcinogenic. Specifically, the plaintiff alleged that the defendant had (1) added ingredients, including carcinogenic ingredients, that altered the natural form of the tobacco in the cigarettes, and (2) utilized manufacturing processes that affected the composition and form of the tobacco and nicotine, as well as the manner in which the cigarette smoke was transmitted to the smoker. With respect to negligence, the plaintiff alleged that the defendant had failed to conform to the applicable standard of care by knowingly designing the cigarettes in a manner that enhanced their addictive and cancer
causing nature and by failing to take available measures to reduce the cigarettes' addictive, toxic, and cancer causing ingredients/properties.
After the plaintiff commenced the present action, judgment was rendered in the District Court in another action against a different cigarette manufacturer on the basis of similar allegations of strict liability and negligence. See Izzarelli v. R.J. Reynolds Tobacco Co. , 806 F.Supp.2d 516, 519–20 (D. Conn. 2011). Following the appeal by the defendant, R.J. Reynolds Tobacco Company, from that judgment to the United States Court of Appeals for the Second Circuit, that court certified the following question to this court: "Does [comment (i) ] to § 402A of the Restatement (Second) of Torts preclude a suit premised on strict products
liability against a cigarette manufacturer based on evidence that the defendant purposefully manufactured cigarettes to increase daily consumption without regard to the resultant increase in exposure to carcinogens, but in the absence of evidence of adulteration or contamination?" (Emphasis added.) Izzarelli v. R.J. Reynolds Tobacco Co. , 731 F.3d 164, 169 (2d Cir. 2013). A particular focus of that question related to an example in comment (i) providing that "good tobacco" is not unreasonably dangerous. See footnote 2 of this opinion.
The trial in the present case was postponed to await this court's response to that question. In the intervening period, the District Court certified two additional questions to this court for advice: (1) "Does [§] 402A of the Restatement (Second) of Torts (and comment [i] to that provision) apply to a product liability claim for negligence under [the act]?"; and (2) "Does Connecticut's [common-law] rule of punitive damages as articulated in Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co. , 193 Conn. 208 (1984), apply to an award of statutory punitive damages pursuant to [General Statutes] § 52–240b, the punitive damages provision of the [act]?" Bifolck v. Philip Morris, Inc. , supra, 2014 WL 585325, at *8.
After oral argument to this court on both cases, we issued our decision in Izzarelli , in which we advised that comment (i) to § 402A did not preclude the strict liability theory advanced. Izzarelli v. R.J. Reynolds Tobacco Co. , supra, 321 Conn. at 177, 136 A.3d 1232. We clarified that, although the two tests available under our law—the ordinary consumer expectation test and the modified consumer expectation test—both apply § 402A's unreasonably dangerous standard, "the modified consumer expectation test is our primary strict product liability test, and the sole test applicable to the present case. Because the obvious danger exceptions to strict liability in comment (i) to § 402A of the Restatement (Second),
including ‘[g]ood tobacco,’ are not dispositive under the multifactor modified consumer expectation test, we answer the certified question in the negative." Id.
The jury in Izzarelli had been instructed on both strict liability tests and rendered a general verdict in favor of the plaintiff. Id., at 182, 136 A.3d 1232. Neither party had advocated for application of any test other than one of the two tests based on the Restatement (Second) recognized by this court. Id., at 192 n.11, 136 A.3d 1232. Nonetheless, a concurring opinion took the position that we should adopt and apply to the certified question in that case the standard for design defects under...
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Guest Post – Curling Up With a Good Reasonable Alternative Design Opinion
...and, under that test, a product is defective if one of two prongs is satisfied (the “Bifolk” prongs, after Bifolk v. Philip Morris, Inc., 152 A.3d 1183 (Conn. 2016)): Bifolk 1 – “A reasonable alternative design was available that would have avoided or reduced the risk of harm and the absenc......
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Guest Post – Curling Up With a Good Reasonable Alternative Design Opinion
...and, under that test, a product is defective if one of two prongs is satisfied (the “Bifolk” prongs, after Bifolk v. Philip Morris, Inc., 152 A.3d 1183 (Conn. 2016)): Bifolk 1 – “A reasonable alternative design was available that would have avoided or reduced the risk of harm and the absenc......