Izzarelli v. R.J. Reynolds Tobacco Co., Docket Nos. 11–3865–cv(Lead), 11–3890–cv(XAP).

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Citation: 731 F.3d 164
• Docket Number: Docket Nos. 11–3865–cv(Lead), 11–3890–cv(XAP).
• Parties: Barbara A. IZZARELLI, Plaintiff–Appellee–Cross–Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, Defendant–Appellant–Cross–Appellee.
• Decision Date: 10 September 2013

731 F.3d 164

Barbara A. IZZARELLI, Plaintiff–Appellee–Cross–Appellant,
v.
R.J. REYNOLDS TOBACCO COMPANY, Defendant–Appellant–Cross–Appellee.

Docket Nos. 11–3865–cv(Lead), 11–3890–cv(XAP).

United States Court of Appeals,
Second Circuit.

Argued: March 18, 2013.
Decided: Sept. 10, 2013.

[731 F.3d 165]

David S. Golub (Jonathan M. Levine, Marilyn J. Ramos, on the brief), Silver Golub & Teitell LLP, Stamford, CT, for Plaintiff–Appellee–Cross–Appellant Barbara A. Izzarelli.

Mark R. Seiden (Todd R. Geremia, David M. Cooper, Jones Day, New York, NY, Theodore M. Grossman, Mark A. Belasic, Jones Day, Cleveland, OH, on the brief), Jones Day, New York, NY, for Defendant–Appellant–Cross–Appellee R.J. Reynolds Tobacco Company.

Before: JACOBS, Chief Judge, CABRANES and WESLEY, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Barbara Izzarelli brings claims against defendant R.J. Reynolds Tobacco Company (“R.J. Reynolds”) under the Connecticut Products Liability Act (“CPLA”), Conn. Gen.Stat. Ann. § 52–572m et seq., for strict liability and negligence, arguing that the cigarettes she smoked for 25 years caused cancer in her larynx.¹ A jury

[731 F.3d 166]

in the United States District Court for the District of Connecticut (Underhill, J.) found R.J. Reynolds liable (and 58 percent at fault under Connecticut's comparative negligence scheme), and awarded Izzarelli $7,982,250 in compensatory damages; punitive damages, which the district court calculated as $3,970,289.87; and $16,127,086.40 in offer-of-judgment interest.

R.J. Reynolds appeals the denial of its renewed motion for judgment as a matter of law, arguing principally that Izzarelli's claims are foreclosed by Connecticut law and the Restatement (Second) of Torts § 402A, as adopted by the Connecticut Supreme Court, Giglio v. Conn. Light & Power Co., 180 Conn. 230, 429 A.2d 486, 488 (1980), which (R.J. Reynolds argues) precludes strict products liability suits against a seller of “good tobacco.” ²

Because this question is undecided under Connecticut law, we certify it to the Connecticut Supreme Court and stay resolution of this case in the interval.

BACKGROUND

Izzarelli tried cigarettes at age twelve, in 1970. By 1972, Izzarelli was smoking a pack a day of Salem Kings brand cigarettes (“Salems”), manufactured by R.J. Reynolds. Izzarelli smoked Salems for the next 25 years, at least two packs a day. In 1996, she was diagnosed with laryngeal cancer. After a laryngectomy in January 1997, she no longer has a voice box and breathes through a tracheotomy hole in her throat. She has undergone numerous surgeries to fix breathing problems, and can eat only soft foods.

Dr. Alexander Glassman, a psychiatrist, testified at trial that Izzarelli was “severely addicted” to nicotine. Other experts retained by Izzarelli testified that her cancer was caused by smoking: Dr. Marshall Posner, Izzarelli's expert on cancer, testified that he was “absolutely convinced” this cancer was caused by smoking, and that 95 percent of laryngeal cancers are caused by smoking; and Izzarelli's treating otolaryngologist, Dr. Thomas Lesnik, testified that her cancer was caused by her smoking.

At trial, Izzarelli introduced evidence that R.J. Reynolds manufactured Salems to specifications intended to get non-smokers addicted to nicotine and to get addicted smokers to smoke more cigarettes without satiating their addiction:

• R.J. Reynolds understood that it had to accomplish two things to sell more cigarettes: (1) maintain smokers' addiction by increasing the nicotine “kick” felt by the smoker with each drag; and (2) reduce the total nicotine level (the nicotine “yield”) in cigarettes to require smokers to purchase more cigarettes to fulfil their addiction's daily requirement.

• R.J. Reynolds had discovered certain means to alter the levels of “free nicotine” in smoke, and thereby increase the nicotine “kick” by varying blends, additives, filters, and papers. Dr. Grunberg testified that R.J. Reynolds used “blend formation and denicotinization”

[731 F.3d 167]

to alter the amount of free nicotine in Salems.

• R.J. Reynolds could manipulate the nicotine yield, and indeed had lowered it from 2–3 milligrams per cigarette in the 1950s and 1960s to approximately 1.3 milligrams per cigarette at the time of trial. One internal document put the question this way: “How low can we go?” The goal was to identify the lowest nicotine yield that would keep smokers addicted while requiring them to smoke more cigarettes to feed their addiction. Lower yield (to a point) therefore requires more smoking, which increases the likelihood of cancer.

R.J. Reynolds elicited testimony that Izzarelli's cancer was not specific to Salems; the opinions of Izzarelli's experts would not change if she smoked a different brand. Dr. Neil Grunberg, a psychologist giving expert testimony on addiction, stated that all tobacco was addictive, and that nothing in Salems changes their addictive nature. Dr. Glassman, too, testified that Izzarelli's addiction did not depend on the fact that she smoked Salems; any cigarettes would have had the same effect. And Dr. Lesnik testified that he did not...