Bifolck v. Philip Morris, Inc., SC 19310

CourtSupreme Court of Connecticut
Writing for the CourtMcDONALD, J.
Citation324 Conn. 362,152 A.3d 1183
Parties Vincent BIFOLCK, Executor (Estate of Jeanette D. Bifolck), et al. v. PHILIP MORRIS, INC.
Docket NumberSC 19310
Decision Date29 December 2016

324 Conn. 362
152 A.3d 1183

Vincent BIFOLCK, Executor (Estate of Jeanette D. Bifolck), et al.
v.
PHILIP MORRIS, INC.

SC 19310

Supreme Court of Connecticut.

Argued September 13, 2016
Officially released December 29, 2016*


152 A.3d 1186

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

152 A.3d 1187

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.

McDONALD, J.

324 Conn. 406

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

324 Conn. 407

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

152 A.3d 1188

§ 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).

324 Conn. 408

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."

I

BACKGROUND OF THE PRESENT CASE

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

324 Conn. 409

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

152 A.3d 1189

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

324 Conn. 410

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 [477 A.2d 988] (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 Izzarel...

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34 practice notes
  • Iino v. Spalter, AC 40574
    • United States
    • Appellate Court of Connecticut
    • September 10, 2019
    ...v. Bushnell , 15 Conn. 225, 235 (1842), and cases cited therein. More recently, in Bifolck v. Philip Morris, Inc. , 324 Conn. 402, 451, 152 A.3d 1183 (2016), our Supreme Court confirmed that, in a jury trial, the question of the amount of punitive damages is for the jury, not the court, whe......
  • Nationwide Mut. Ins. Co. v. Pasiak, SC 19618
    • United States
    • Supreme Court of Connecticut
    • December 19, 2017
    ...United Services Automobile Assn., supra, 222 Conn. at 492, 610 A.2d 1212 ; see also Bifolck v. Philip Morris, Inc., 324 Conn. 402, 455, 152 A.3d 1183 (2016) (our common-law measure of punitive damages is "indisputably one of the most conservative in the nation" [internal quotation marks omi......
  • Fajardo v. Boston Scientific Corporation, SC 20455
    • United States
    • Supreme Court of Connecticut
    • December 16, 2021
    ...that govern claims brought under the Connecticut Product Liability Act. See 341 Conn. 559 Bifolck v. Philip Morris, Inc. , 324 Conn. 402, 152 A.3d 1183 (2016) ; Izzarelli v. R.J. Reynolds Tobacco Co. , 321 Conn. 172, 136 A.3d 1232 (2016). In Izzarelli , we sharply limited the scope of the t......
  • Ferry v. Mead Johnson & Co., 3:20-cv-99 (SRU)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 25, 2021
    ...product liability claims brought in Connecticut "are governed by the same elements." Bifolck v. Philip Morris , 324 Conn. 402, 433–34, 152 A.3d 1183 (2016). That is, a plaintiff must prove:(1) the defendant was engaged in the business of selling the product; (2) the product was in a defecti......
  • Request a trial to view additional results
32 cases
  • Iino v. Spalter, AC 40574
    • United States
    • Appellate Court of Connecticut
    • September 10, 2019
    ...v. Bushnell , 15 Conn. 225, 235 (1842), and cases cited therein. More recently, in Bifolck v. Philip Morris, Inc. , 324 Conn. 402, 451, 152 A.3d 1183 (2016), our Supreme Court confirmed that, in a jury trial, the question of the amount of punitive damages is for the jury, not the court, whe......
  • Nationwide Mut. Ins. Co. v. Pasiak, SC 19618
    • United States
    • Supreme Court of Connecticut
    • December 19, 2017
    ...United Services Automobile Assn., supra, 222 Conn. at 492, 610 A.2d 1212 ; see also Bifolck v. Philip Morris, Inc., 324 Conn. 402, 455, 152 A.3d 1183 (2016) (our common-law measure of punitive damages is "indisputably one of the most conservative in the nation" [internal quotation marks omi......
  • Fajardo v. Boston Scientific Corporation, SC 20455
    • United States
    • Supreme Court of Connecticut
    • December 16, 2021
    ...that govern claims brought under the Connecticut Product Liability Act. See 341 Conn. 559 Bifolck v. Philip Morris, Inc. , 324 Conn. 402, 152 A.3d 1183 (2016) ; Izzarelli v. R.J. Reynolds Tobacco Co. , 321 Conn. 172, 136 A.3d 1232 (2016). In Izzarelli , we sharply limited the scope of the t......
  • Ferry v. Mead Johnson & Co., 3:20-cv-99 (SRU)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 25, 2021
    ...product liability claims brought in Connecticut "are governed by the same elements." Bifolck v. Philip Morris , 324 Conn. 402, 433–34, 152 A.3d 1183 (2016). That is, a plaintiff must prove:(1) the defendant was engaged in the business of selling the product; (2) the product was in a defecti......
  • Request a trial to view additional results
2 firm's commentaries
  • Guest Post – Curling Up With a Good Reasonable Alternative Design Opinion
    • United States
    • LexBlog United States
    • January 28, 2022
    ...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......
  • Guest Post – Curling Up With a Good Reasonable Alternative Design Opinion
    • United States
    • LexBlog United States
    • January 28, 2022
    ...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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