Izzarelli v. R.J. Reynolds Tobacco Co., Civil Action No. 3:99–cv–2338 (SRU).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Citation806 F.Supp.2d 516
Decision Date26 August 2011
Docket NumberCivil Action No. 3:99–cv–2338 (SRU).
PartiesBarbara IZZARELLI, Plaintiff, v. R.J. REYNOLDS TOBACCO COMPANY, Defendant.

806 F.Supp.2d 516

Barbara IZZARELLI, Plaintiff,

Civil Action No. 3:99–cv–2338 (SRU).

United States District Court, D. Connecticut.

Aug. 26, 2011.

[806 F.Supp.2d 519]

David S. Golub, Jonathan M. Levine, Marilyn J. Ramos, Mary G. Curry, Silver, Golub & Teitell, Stamford, CT, David Thomas Ryan, Robinson & Cole, Hartford, CT, for Plaintiff.

Amanda S. Jacobs, Jones Day–Oh, Cleveland, OH, Chris J. Lopata, Jones, Day, New York, NY, Christopher A. Kreiner, Womble Carlyle Sandridge & Rice, PLLC, Winston–Salem, NC, for Defendant.

STEFAN R. UNDERHILL, District Judge.

Barbara Izzarelli smoked Salem King cigarettes for over twenty-five years until she was diagnosed and treated for larynx cancer at the age of 36. On May 26, 2010, after fourteen days of evidence, a jury determined that R.J. Reynolds Tobacco Company (“R.J. Reynolds”), the manufacturer of Salem King cigarettes, was 58% responsible for Izzarelli's injuries, under theories of strict liability and negligent design, and that Izzarelli was 42% responsible for her injuries.1 At the close of Izzarelli's case, R.J. Reynolds moved for

[806 F.Supp.2d 520]

judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure. See Motion for Judgment as a Matter of Law (doc. # 406). I reserved ruling on that motion. After judgment entered, R.J. Reynolds timely renewed its motion for judgment as a matter of law and filed, in the alternative, a motion for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. See Motion for New Trial (doc. # 482).

In its renewed motion for judgment as a matter of law and motion for a new trial, R.J. Reynolds argues that the evidence presented at trial is insufficient, as a matter of law, to support the jury's verdict; that I erred in precluding testimony about certain “risk factors” for larynx cancer; that I improperly permitted evidence of so-called “youth marketing;” and that the jury was improperly instructed on Connecticut's product liability law and the law of punitive damages. Those claimed errors, R.J. Reynolds contends, entitle it to judgment as a matter of law or, in the alternative, a new trial. For the reasons that follow, the motion is denied.

I. Factual Background

The product at issue in this case is the Salem King menthol 85 millimeter filter cigarette (hereafter “Salems” or “Salem Kings”). The principal dispute at trial concerned whether R.J. Reynolds designed and manufactured a tobacco product with heightened addictive properties that delivered more carcinogens than necessary. In support of her claims, Izzarelli presented testimonial and documentary evidence showing what R.J. Reynolds understood about the properties of nicotine and addiction; how R.J. Reynolds used its understanding of nicotine and addiction to design Salem Kings; that R.J. Reynolds participated in an industry-wide campaign to discredit warnings about the dangers of cigarettes and nicotine addiction; and that R.J. Reynolds manufactured a cigarette with heightened addictive properties that contained a higher than necessary level of carcinogens. At trial, R.J. Reynolds countered Izzarelli's claims with evidence that the presence of nicotine and carcinogens is inherent to all cigarettes and not unique to Salem Kings, and that no specific defect or ingredient in Salem Kings other than those inherent to all cigarettes could be identified as causing Izzarelli's injuries. R.J. Reynolds also introduced evidence that Izzarelli never attempted to quit smoking, she enjoyed smoking, and that warnings about the dangers of smoking appeared on the product label. The trial record in its entirety supports a jury reasonably finding the following facts about Salem Kings and Izzarelli's injuries.

A. Salem Kings

R.J. Reynolds has manufactured and sold Salem Kings since 1956. See Trial Transcript dated May 17, 2010 at 2453 (testimony of James Figlar, R.J. Reynolds' Vice President of Cigarette Product Design Development) (all citations to the trial transcript are hereafter designated “Trans. at –––”). Salem Kings are menthol cigarettes. The addition of menthol to Salem Kings “reduce[d] the irritation of smoking.” Trans. at 1405 (testimony of Dr. Michael Cummings); see also Trans. at 1525 (“Menthol is a peculiar class of flavorants that also has a stronger physiological effect in that it gives cooling ... [t]here are cooling receptors throughout your mouth and your throat, and those receptors are responsive to menthol which gives you that cooling sensation....”). Menthol enhances the effect of nicotine by “[m]aking it easier to inhale and deliver the nicotine rapidly into the lungs so it gets to the brain quicker. The faster the drug gets there, the more kick you get from the drug.” Trans. at 1416–17. Menthol

[806 F.Supp.2d 521]

also had the added benefit of masking the bitter taste of nicotine. For younger or beginning smokers, menthol lessens the undesirable effects of smoking, making it easier to achieve a quicker “kick.” Id.

When Salem Kings entered the marketplace in 1956, it was the second brand of menthol cigarettes available to consumers; Kool cigarettes, then manufactured by Phillip Morris, was the first menthol brand introduced. Ex. # 47 at 1454. The tobacco blend of Salems differed from that of Kools; Salem Kings had a higher percentage of burley, Turkish, and reconstituted tobacco and a lower percentage of flue-cured tobacco and did not contain tobacco stems. Id. at 1457. This blend, R.J. Reynolds claimed, produced a smoother, milder, slower-burning product with a balanced tobacco/menthol taste as compared to Kools. Id. By 1963, Salem Kings accounted for six percent of the market share of 18–24 year-old smokers. Id. at 1480. From 1963 to 1973, the tobacco industry saw an increase in cigarette brand variety generally, a move to low-tar brands, and a growth in the use of menthol cigarettes. Ex. 47 at 1504. R.J. Reynolds attributed the increased use of menthol cigarettes to the consumer belief that menthol possessed health benefits. Id. Despite the increase in smokers choosing menthol products, R.J. Reynolds was unable to capture the market share of its main competitor, Kool, which had demonstrated strong growth in the 14–17 year-old male market. Id.

In the early 1970s, R.J. Reynolds identified several areas of weakness in its Salem King brand. Id. First, 47% of Salem smokers were classified as “light” smokers meaning those who smoked 1–15 cigarettes per day. Second, consumption was declining overall due to older smokers leaving the marketplace and increasing concerns about the safety of cigarettes. Id. During that same period, R.J. Reynolds expressed a desire to increase its share of the under 18 market. Ex. 51. In its efforts to capture a larger share of its desired market, R.J. Reynolds manipulated the nicotine level of Salem Kings through the use of additives and tobacco selection in order to increase “smoker satisfaction.”

1. Nicotine Manipulation

“[A] cigarette is a system for delivery of nicotine to the smoker in attractive, useful form.” Ex. 201. Nicotine in smoke appears in two principal forms—free nicotine and bound nicotine. Trans. at 611. Free nicotine moves through the body's blood-brain barrier faster and provides the smoker with a higher and more immediate “kick.” Trans. at 611; ex. 201. The greater and faster the kick, the greater the addiction liability.2 Trans. at 612. R.J. Reynolds recognized two important factors concerning nicotine: (1) the form of delivery of nicotine affected whether the nicotine was slowly absorbed by the smoker or rapidly absorbed, thereby delivering a more potent nicotine “kick,” id.; and (2) there is an effective dose range of nicotine required to maintain addiction. Trans. at 618.

a. “Free” Nicotine

In the 1972 memorandum entitled “Implications and Activities Arising From Correlation of Smoke pH with Nicotine Impact, Other Smoke Qualities, and Cigarette Sales,” R.J. Reynolds acknowledged that rapid absorption of nicotine by the smoker's body is linked to the amount of

[806 F.Supp.2d 522]

“free” nicotine present in the smoke. Ex. 201 at 4125. R.J. Reynolds' research revealed a direct correlation between market share and the amount of “free” nicotine in a given cigarette. Id. at 4124; see also exs. 229, 230. Indeed, by lowering the nicotine and tar in some of its brands, R.J. Reynolds had unwittingly decreased the amount of free nicotine and thereby caused a loss of market share. See ex. 201 at 4125. Conversely, its competitors had decreased tar and nicotine levels but increased the smoke pH of some of its brands, causing those competitors to realize a corresponding increase in market share. Id. at 4126. R.J. Reynolds attributed the increased market share to the increased free nicotine in its competitor's products.

R.J. Reynolds identified seven methods for manipulating the nicotine “kick” of a cigarette: “(1) increasing the amount of (strong) burley [tobacco] in the blend, (2) reduction of casing sugar used on the burley and/or blend, (3) use of alkaline additive, usually ammonia compounds, to the blend, (4) addition of nicotine to the blend, (5) removal of acids from the blend, (6) special filter systems to remove acids or add alkaline materials to the smoke, and (7) use of high air dilution filter systems.” Id. at 4127. Its competitors, R.J. Reynolds noted, manipulated free nicotine by controlling the pH balance of the smoke. Id. at 4125. R.J. Reynolds expressed an intention to maintain the basic integrity of its Salem Kings but to match its competitors' market share. See ex. 230 (“Our emphasis should be directed toward free nicotine, while pH would provide us with a measure or tool.”). Salem Kings had a pH level of 6.0–6.2 during the late 1960s and early 1970s. Its main competitor, Kool maintained a pH level of 6.2–6.4. Id.; see also ex. 215.

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