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Date: 09-10-2013

Case Style: Barbara A. Izzarelli v. R.J. Reynolds Tobacco Company

Case Number: 11-3865-cv

Judge: Dennis Jacobs

Court: United States Court of Appeals for the Second Circuit from the District of Connecticut (Hartford County)

Plaintiff's Attorney: Daivd S. Golub, Jonathan M. Levine, Marilyn J. Ramos

Defendant's Attorney: Mark R. Seiden, Todd R. Geremia, David M. Cooper, Theodore M. Grossman, Mark A. Belasic

Description: 25 Barbara Izzarelli brings claims against defendant R.J.
26 Reynolds Tobacco Company (“R.J. Reynolds”) under the
27 Connecticut Products Liability Act (“CPLA”), Conn. Gen.
28 Stat. Ann. § 52-572m et seq., for strict liability and
29 negligence, arguing that the cigarettes she smoked for 25
30 years caused cancer in her larynx.1 A jury in the United
1 Izzarelli also brought a claim under the
Connecticut Unfair Trade Practices Act, Conn. Gen. Stat.
Ann. § 42-110a et seq., for unlawful youth marketing. The
2
1 States District Court for the District of Connecticut
2 (Underhill, J.) found R.J. Reynolds liable (and 58 percent
3 at fault under Connecticut’s comparative negligence scheme),
4 and awarded Izzarelli $7,982,250 in compensatory damages;
5 punitive damages, which the district court calculated as
6 $3,970,289.87; and $16,127,086.40 in offer-of-judgment
7 interest.
8 R.J. Reynolds appeals the denial of its renewed motion
9 for judgment as a matter of law, arguing principally that
10 Izzarelli’s claims are foreclosed by Connecticut law and the
11 Restatement (Second) of Torts § 402A, as adopted by the
12 Connecticut Supreme Court, Giglio v. Conn. Light & Power
13 Co., 429 A.2d 486, 488 (Conn. 1980), which (R.J. Reynolds
14 argues) precludes strict products liability suits against a
15 seller of “good tobacco.”2
16
district court granted R.J. Reynolds’s motion for summary
judgment on that claim, and Izzarelli does not appeal that
decision.
2 The parties also argue issues involving
admissibility of evidence and punitive damages. Since we
are certifying the principal and threshold legal issue, we
need not decide those issues now, and will decide them
depending on how the Connecticut Supreme Court decides the
certified question. For this reason, we will limit our
discussion of the facts to those relevant to the question at
issue.
3
1 Because this question is undecided under Connecticut
2 law, we certify it to the Connecticut Supreme Court and stay
3 resolution of this case in the interval.
4
5 BACKGROUND
6 Izzarelli tried cigarettes at age twelve, in 1970. By
7 1972, Izzarelli was smoking a pack a day of Salem Kings
8 brand cigarettes (“Salems”), manufactured by R.J. Reynolds.
9 Izzarelli smoked Salems for the next 25 years, at least two
10 packs a day. In 1996, she was diagnosed with laryngeal
11 cancer. After a laryngectomy in January 1997, she no longer
12 has a voice box and breathes through a tracheotomy hole in
13 her throat. She has undergone numerous surgeries to fix
14 breathing problems, and can eat only soft foods.
15 Dr. Alexander Glassman, a psychiatrist, testified at
16 trial that Izzarelli was “severely addicted” to nicotine.
17 Other experts retained by Izzarelli testified that her
18 cancer was caused by smoking: Dr. Marshall Posner,
19 Izzarelli’s expert on cancer, testified that he was
20 “absolutely convinced” this cancer was caused by smoking,
21 and that 95 percent of laryngeal cancers are caused by
22 smoking; and Izzarelli’s treating otolaryngologist, Dr.
4
1 Thomas Lesnik, testified that her cancer was caused by her
2 smoking.
3 At trial, Izzarelli introduced evidence that R.J.
4 Reynolds manufactured Salems to specifications intended to
5 get non-smokers addicted to nicotine and to get addicted
6 smokers to smoke more cigarettes without satiating their
7 addiction:
8 • R.J. Reynolds understood that it had to accomplish
9 two things to sell more cigarettes: (1) maintain
10 smokers’ addiction by increasing the nicotine
11 “kick” felt by the smoker with each drag; and (2)
12 reduce the total nicotine level (the nicotine
13 “yield”) in cigarettes to require smokers to
14 purchase more cigarettes to fulfil their
15 addiction’s daily requirement.
16 • R.J. Reynolds had discovered certain means to
17 alter the levels of “free nicotine” in smoke, and
18 thereby increase the nicotine “kick” by varying
19 blends, additives, filters, and papers. Dr.
20 Grunberg testified that R.J. Reynolds used “blend
21 formation and denicotinization” to alter the
22 amount of free nicotine in Salems.
5
1 • R.J. Reynolds could manipulate the nicotine yield,
2 and indeed had lowered it from 2-3 milligrams per
3 cigarette in the 1950s and 1960s to approximately
4 1.3 milligrams per cigarette at the time of trial.
5 One internal document put the question this way:
6 “How low can we go?” The goal was to identify the
7 lowest nicotine yield that would keep smokers
8 addicted while requiring them to smoke more
9 cigarettes to feed their addiction. Lower yield
10 (to a point) therefore requires more smoking,
11 which increases the likelihood of cancer.
12 R.J. Reynolds elicited testimony that Izzarelli’s
13 cancer was not specific to Salems; the opinions of
14 Izzarelli’s experts would not change if she smoked a
15 different brand. Dr. Neil Grunberg, a psychologist giving
16 expert testimony on addiction, stated that all tobacco was
17 addictive, and that nothing in Salems changes their
18 addictive nature. Dr. Glassman, too, testified that
19 Izzarelli’s addiction did not depend on the fact that she
20 smoked Salems; any cigarettes would have had the same
21 effect. And Dr. Lesnik testified that he did not need to
22 know what brand of cigarettes Izzarelli smoked to conclude
23 that smoking caused her cancer.
6
1 At the close of Izzarelli’s case, R.J. Reynolds moved
2 for judgment as a matter of law pursuant to Rule 50 of the
3 Federal Rules of Civil Procedure. The district court
4 reserved ruling on that motion. After the jury returned its
5 verdict and judgment was entered in favor of Izzarelli, R.J.
6 Reynolds timely renewed that motion and, in addition, filed
7 a motion for a new trial pursuant to Rule 59 of the Federal
8 Rules of Civil Procedure. The district court denied both
9 motions. R.J. Reynolds appeals.
10
11 DISCUSSION
12 We review the denial of a motion for judgment as a
13 matter of law de novo, “applying the same standards as the
14 district court to determine whether judgment as a matter of
15 law was appropriate.” Merrill Lynch Interfunding, Inc. v.
16 Argenti, 155 F.3d 113, 120 (2d Cir. 1998). Judgment as a
17 matter of law is appropriate if, after reviewing the
18 evidence in the light most favorable to Izzarelli, the
19 nonmovant, “there can be but one conclusion as to the
20 verdict that reasonable [jurors] could have reached.”
21 Samuels v. Air Transp. Local 504, 992 F.2d 12, 14 (2d Cir.
22 1993) (quotation marks omitted); see also Coffey v. Dobbs
23 Int’l Servs., Inc., 170 F.3d 323, 326 (2d Cir. 1999).
7
1 Izzarelli sues under the CPLA, Conn. Gen. Stat. Ann.
2 § 52-572m et seq. The CPLA allows a person injured by a
3 defective or hazardous product to bring a claim rooted in
4 “negligence, strict liability[,] and warranty, for harm
5 caused by a product.” Id. § 52-572n(a). The certified
6 question concerns solely strict liability. In order to
7 prove a strict liability claim under the CPLA, it must be
8 shown “that: (1) the defendant was engaged in the business
9 of selling the product; (2) the product was in a defective
10 condition unreasonably dangerous to the consumer or user;
11 (3) the defect caused the injury for which compensation was
12 sought; (4) the defect existed at the time of the sale; and
13 (5) the product was expected to and did reach the consumer
14 without substantial change in condition.” Giglio v. Conn.
15 Light & Power Co., 429 A.2d 486, 488 (Conn. 1980) (citing
16 Restatement (Second) of Torts § 402A (1965)). For the
17 purposes of the question presented for certification, the
18 decisive issue is the existence of a defective condition.
19 The Connecticut rule for strict liability is drawn from
20 section 402A of the Restatement (Second) of Torts. See id;
21 Wagner v. Clark Equip. Co., Inc., 700 A.2d 38, 50 (Conn.
22 1997). Section 402A provides:
8
1 (1) One who sells any product in a defective
2 condition unreasonably dangerous to the user or
3 consumer or to his property is subject to
4 liability for physical harm thereby caused to the
5 ultimate user or consumer, or to his property, if
6 (a) the seller is engaged in the business of
7 selling such a product, and
8 (b) it is expected to and does reach the user
9 or consumer without substantial change in the
10 condition in which it is sold.
11
12 (Emphasis added). Comment i, which defines “unreasonably
13 dangerous,” excludes the harmful effects of “good tobacco”:
14 The rule stated in this Section applies only where
15 the defective condition of the product makes it
16 unreasonably dangerous to the user or consumer.
17 Many products cannot possibly be made entirely
18 safe for all consumption, and any food or drug
19 necessarily involves some risk of harm, if only
20 from over-consumption. Ordinary sugar is a deadly
21 poison to diabetics, and castor oil found use
22 under Mussolini as an instrument of torture. That
23 is not what is meant by “unreasonably dangerous”
24 in this Section. The article sold must be
25 dangerous to an extent beyond that which would be
26 contemplated by the ordinary consumer who
27 purchases it, with the ordinary knowledge common
28 to the community as to its characteristics. . . .
29 Good tobacco is not unreasonably dangerous merely
30 because the effects of smoking may be harmful; but
31 tobacco containing something like marijuana may be
32 unreasonably dangerous. . . .
33
34 (Emphasis added). The Connecticut Supreme Court has
35 explicitly adopted Comment i’s definition of “unreasonably
36 dangerous.” Wagner, 700 A.2d at 50. R.J. Reynolds argues
37 that Comment i precludes Izzarelli’s suit because she has
38 not produced evidence of contamination or adulteration--
39 “something like marijuana.”
9
1 The Connecticut Supreme Court has not considered the
2 proviso for “good tobacco” in Comment i. The only
3 Connecticut case that decided the issue is Estate of DuJack
4 v. Brown & Williamson Tobacco Corp., an oral ruling from the
5 bench. X07-00728225-S, 2001 WL 34133836 (Conn. Super. Ct.
6 Nov. 13, 2001). The court assumed “that [plaintiff] did
7 smoke Kool cigarettes, that she became addicted to Kool
8 cigarettes at an early age, that this addiction did her
9 harm, and that the cigarette smoking that she did caused her
10 lung cancer, and the other injuries that resulted from
11 having the lung cancer.” Id. at *1. The DuJack court
12 dismissed the complaint, relying on Comment i: “you cannot
13 make a claim that cigarettes are an unreasonably dangerous
14 or defective product because the nicotine in them causes
15 harm.” Id. at *3. At the same time, the court
16 distinguished a hypothetical case in which a plaintiff
17 alleged “that Kool cigarettes have some peculiar
18 manufacturing process with filters or their papers or any
19 additives or any genetic processing that makes Kool
20 cigarettes different than any other cigarette.” Id. at *2.
21 It is unclear whether Comment i precludes all products
22 liability claims in Connecticut against tobacco companies
23 absent allegations of contamination or adulteration. When
10
1 Comment i was adopted in 1965, it was widely known that
2 smoking is dangerous and can be addictive. So it makes
3 sense to conclude that a cigarette cannot be “unreasonably
4 dangerous” when manufactured consistent with industry norms.
5 Izzarelli argues, however, that Comment i specifies “good
6 tobacco” as opposed to “good cigarettes,” and therefore does
7 not bear upon the manufacturing process; that a cigarette is
8 a nicotine delivery device that can change how tobacco is
9 smoked and its effect on the smoker; and that R.J. Reynolds
10 varied the blends and components to make Salems more
11 addictive, and varied the nicotine levels to maximize the
12 number of cigarettes needed per day to satisfy the
13 addiction.
14 Whether Comment i precludes claims under the CPLA
15 against cigarette manufacturers absent evidence of
16 contamination or adulteration has not been decided in
17 Connecticut. This question is one of state law and is
18 vigorously argued on both sides. We therefore think it
19 prudent to certify this question to the Connecticut Supreme
20 Court.

Outcome: 2 For the foregoing reasons, we hereby CERTIFY the
3 following question to the Connecticut Supreme Court: Does
4 Comment i to section 402A of the Restatement (Second) of
5 Torts preclude a suit premised on strict products liability
6 against a cigarette manufacturer based on evidence that the
7 defendant purposefully manufactured cigarettes to increase
8 daily consumption without regard to the resultant increase
9 in exposure to carcinogens, but in the absence of evidence
10 of any adulteration or contamination? We STAY ADJUDICATION
11 of this dispute until we receive guidance from the
12 Connecticut Supreme Court. The Connecticut Supreme Court
13 may modify this question as it sees fit and add any
14 pertinent questions of Connecticut law that the Court
15 chooses to answer. This panel retains jurisdiction over
16 this case and will decide it once the Connecticut Supreme
17 Court has either provided us with its guidance or declined
18 certification.
19 It is therefore ORDERED that the Clerk of this Court
20 transmit to the Clerk of the Connecticut Supreme Court a
21 Certificate, as set forth below, together with this decision
22 and a complete set of the briefs, appendices, and record
23 filed in this Court by the parties.
12
1 CERTIFICATE
2 The foregoing is hereby certified to the Connecticut
3 Supreme Court, pursuant to Conn. Gen. Stat. Ann. § 51–199b
4 and 2d Cir. R. 27.2, as ordered by the United States Court
5 of Appeals for the Second Circuit.
13

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Defendant's Experts:

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