Izzarelli v. R.J. Reynolds Tobacco Co., No. 19232.

• Court: Supreme Court of Connecticut
• Writing for the Court: McDONALD, J.
• Citation: 136 A.3d 1232,321 Conn. 172
• Parties: Barbara A. IZZARELLI v. R.J. REYNOLDS TOBACCO COMPANY.
• Docket Number: No. 19232.
• Decision Date: 03 May 2016

321 Conn. 172
136 A.3d 1232

Barbara A. IZZARELLI
v.
R.J. REYNOLDS TOBACCO COMPANY.

No. 19232.

Supreme Court of Connecticut.

Argued April 22, 2015.
Decided May 3, 2016.

136 A.3d 1233

David S. Golub, with whom were Jonathan M. Levine and, on the brief, Marilyn J. Ramos, Stamford, for the appellant (plaintiff).

Theodore M. Grossman, pro hac vice, with whom were Jeffrey J. White, and, on the brief, Frank F. Coulom, Jr., and Kathleen E. Dion, Hartford, for the appellee (defendant).

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.

Edward L. Sweda, Jr., pro hac vice, and Michael J. Walsh, Groton, filed a brief for the Public Health Advocacy Institute as amicus curiae.

Kathleen L. Nastri, Bridgeport, and Jeffrey R. White, pro hac vice, filed a brief for the American Association for Justice as amicus curiae.

ZARELLA, EVELEIGH, McDONALD, ESPINOSA, ROBINSON and VERTEFEUILLE, Js.

McDONALD, J.

321 Conn. 175

We have been asked by the United States Court of Appeals for the Second

136 A.3d 1234

Circuit to consider whether the “[g]ood tobacco” exception to strict products liability contained in comment (i) to § 402A of the Restatement (Second) of Torts¹ precludes an action in this state against a cigarette manufacturer for including additives and manipulating the nicotine in its cigarettes in a manner that ultimately increases the user's risk of cancer. See 2 Restatement (Second), Torts § 402A, comment (i), pp. 352–53 (1965). The defendant, R.J. Reynolds Tobacco Company, appealed to that court

321 Conn. 176

from the judgment of the United States District Court for the District of Connecticut in favor of the plaintiff, Barbara A. Izzarelli, a former smoker and cancer survivor, on an action brought pursuant to Connecticut's Product Liability Act (liability act), General Statutes § 52–572m et seq. Pursuant to General Statutes § 51–199b (d), we accepted certification with respect to the following question from the Second Circuit: “Does [comment (i) to § 402A ] 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?”² See Izzarelli v. R.J. Reynolds Tobacco Co., 731 F.3d 164, 169 (2d Cir.2013).

321 Conn. 177

This case requires us to revisit our seminal strict product liability precedent, Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 694 A.2d 1319 (1997), and to clarify the proper purview of the two strict liability tests recognized in that case: the ordinary consumer expectation test and the modified consumer expectation test. We conclude that the modified consumer expectation test is our primary strict product liability test, and the sole test applicable to the present case. Because the obvious

136 A.3d 1235

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.

The District Court's ruling on the defendant's motion for a new trial and its renewed motion for judgment as a matter of law sets forth the following facts that the jury reasonably could have found, which we supplement with relevant procedural history. Izzarelli v. R.J. Reynolds Tobacco Co., 806 F.Supp.2d 516 (D.Conn.2011). The relevant time frame in this case spans from the early 1970s, when the plaintiff first began to smoke, until the late 1990s, when she was diagnosed with, and treated for, cancer. The defendant has manufactured Salem King (Salem) cigarettes, the menthol cigarette brand smoked by the plaintiff, since 1956. Id., at 520. In the early 1970s, the defendant identified certain weaknesses in its brand. Id., at 521. One of the concerns identified was that almost one half of Salem users were light smokers, meaning that they smoked one to fifteen cigarettes per day. In an effort to capture a larger share of its desired market, the defendant modified Salem's design. Id.

The defendant's internal research had disclosed two important factors concerning nicotine, a naturally occurring but addictive component of tobacco. First, the form of the nicotine affects the rate at which it is

321 Conn. 178

absorbed and delivers its “ ‘kick’ ” to the smoker. Id. Of nicotine's two principal forms, bound and free, free nicotine (also known as freebase nicotine) moves through the body's blood/brain barrier faster and provides the smoker with a higher and more immediate kick. Addiction liability increases in relation to the amount and speed of the delivery of free nicotine.³ Second, there is an effective dose range of nicotine necessary to maintain addiction. Id. The lowest nicotine yield (nicotine actually delivered to the smoker) that would maintain addiction requires the smoker to receive between five and eight milligrams of nicotine daily. Id., at 523.

The defendant modified its Salem cigarettes in a manner that took both of these factors into account. The defendant had identified seven methods for manipulating the nicotine kick of its cigarettes, which it incorporated into its product. Id., at 522. Among those methods was adding ammonia compounds to turn the nicotine into its more potent freebase form. Adding acetaldehyde, one of scores of chemicals added to Salem cigarettes,⁴ would cut the harshness of the nicotine while reinforcing its effects. Id., at 523. Lowering nicotine levels below those naturally occurring could be achieved through various processes whereby the nicotine is extracted from the tobacco leaf and added back at the desired level. The defendant understood that increasing the free nicotine would enhance the addictive properties of Salem cigarettes, while decreasing the nicotine

321 Conn. 179

yield of the cigarettes would increase the number of cigarettes needed to meet the smoker's addiction demand. Id.

136 A.3d 1236

The fact that the smoker would need to smoke more cigarettes to satisfy his or her addiction had two obvious consequences. First, the smoker would purchase more cigarettes. Second, the smoker would be exposed to more carcinogens, specifically, “tar.” Id. “ ‘Tar’ ” is the tobacco industry term for all byproducts of smoking other than water and nicotine. Id. Tar yield is affected by numerous factors, including the type of filter, the type of paper, how the paper is ventilated, the length and composition of the cigarette, and the blend of the tobacco. Id.

By the early 1970s, the defendant had lowered the nicotine yield in Salem cigarettes from its 1956 level of 3.1 milligrams to 1.3 milligrams—a level determined to be optimal to maintain addiction. Id. At that time, Salem cigarettes contained fifteen to nineteen milligrams of tar, an amount that exceeded the level in its main competitor for menthol cigarettes, Kool. Id. The defendant had the capability of reducing the level of tar in its cigarettes to one milligram or less; in fact, two of its brands had two milligrams of tar in 1973. Id. Thus, the defendant manipulated the natural effect of nicotine through the use of additives, tobacco formulation, and other methods. In so doing, the defendant enhanced the addictive nature of the product, increased the number of cigarettes smoked by its consumer, and ultimately delivered a higher level of carcinogens to the consumer as compared to other cigarettes. Because the causal relationship between smoking and cancer is dose related, increasing the Salem smoker's exposure to carcinogens increased the likelihood of cancer. Id., at 523–24.

The plaintiff began smoking in the early 1970s, when she was approximately twelve years old. She quickly

321 Conn. 180

became severely addicted, eventually smoking two to three packs of Salem cigarettes daily. Id., at 524. Throughout the period when the plaintiff smoked, a warning from the Surgeon General of the United States that smoking is dangerous to one's health appeared on the packaging of Salem cigarettes. See id., at 527 n. 4.

In 1996, at age thirty-six and after smoking for twenty-five years, the plaintiff was diagnosed with cancer of the larynx. Id., at 524. A person with the plaintiff's smoking history has between a 6.9 and 20 times greater chance of developing laryngeal cancer than a nonsmoker. Id. To treat her cancer, the plaintiff's larynx was removed and she received radiation. In 1997, the plaintiff quit smoking. She is cancer free, but continues to have various disabilities and problems...