Case Style: Izzarelli v. R.J. Reynolds Tobacco Co
Case Number: SC 19232
Judge: Andrew J. McDonald
Court: Connecticut Supreme Court
Plaintiff's Attorney: David Golub, Jon Levine, Marilyn Ramos,
Defendant's Attorney: Ted Grossman, Jeff White, Frank Coulom, Kathleen E. Dion
Description: We have been asked by the United States Court of Appeals for the Second 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’sriskofcancer.See2Restatement(Second),Torts § 402A, comment (i), pp. 352–53 (1965). The defendant, R.J.ReynoldsTobaccoCompany,appealedtothatcourt 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 § 51199b (d), we accepted certification with respect to the following question from the Second Circuit: ‘‘Does [comment (i) to § 402A] preclude a suit premised on strictproductsliabilityagainstacigarettemanufacturer basedonevidencethatthedefendantpurposefullymanufactured cigarettes to increase daily consumption without regard to the resultant increase in exposure to carcinogens,butintheabsenceofevidenceofadulteration or contamination?’’2 See Izzarelli v. R.J. Reynolds Tobacco Co., 731 F.3d 164, 169 (2d Cir. 2013). 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), andtoclarifytheproperpurviewofthetwostrictliability testsrecognized inthat case:the ordinaryconsumer 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. Becausetheobviousdangerexceptionstostrictliability in comment (i) to § 402A of the Restatement (Second), including ‘‘[g]ood tobacco,’’ are not dispositive under themultifactormodifiedconsumerexpectationtest,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 firstbegan 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., 520. In the early 1970s, the defendant identified certain weak
nesses in its brand. Id., 521. One of the concerns identified was that almost one half of Salem users were light smokers,meaning thattheysmoked oneto fifteencigarettes 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 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 necessarytomaintainaddiction.Id.Thelowestnicotineyield (nicotine actually delivered to the smoker) that would maintain addiction requires the smoker to receive between five and eight milligrams of nicotine daily. Id., 523. ThedefendantmodifieditsSalemcigarettesinamanner 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., 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 reinforcingits effects.Id.,523.Lowering nicotinelevels below those naturally occurring could be achieved through various processes whereby the nicotine is extracted from the tobacco leaf and added back at the desiredlevel.Thedefendantunderstoodthatincreasing the free nicotine would enhance the addictive properties of Salem cigarettes, while decreasing the nicotine yield of the cigarettes would increase the number of cigarettes needed to meet the smoker’s addiction demand. Id. The fact that the smoker would need to smoke more cigarettestosatisfyhisorheraddictionhadtwoobvious 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 beoptimaltomaintainaddiction.Id.Atthattime,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 consumerascomparedtoothercigarettes.Becausethe causalrelationshipbetweensmokingandcancerisdose related,increasingtheSalemsmoker’sexposuretocarcinogensincreasedthelikelihoodofcancer.Id.,523–24. The plaintiff began smoking in the early 1970s, when she was approximately twelve years old. She quickly became severely addicted, eventually smoking two to threepacksofSalemcigarettes daily.Id.,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., 527 n.4. In1996,atagethirty-sixandaftersmokingfortwentyfive years, the plaintiff was diagnosed with cancer of thelarynx.Id.,524.Apersonwiththeplaintiff’ssmoking 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 related to her laryngectomy. Id. After the plaintiff’s cancer diagnosis and treatment, she commenced the present product liability action in federal court under theories of strict liability and negligent design.5 At trial, the crux of the factual dispute was whether the defendant had designed and manufactured a tobacco product with heightened addictive properties that delivered more carcinogens than necessary. Id., 520. In addition to denying that allegation, the defendant also argued that the product ‘‘defect’’ identified by the plaintiff was merely the inherent risk commontoalltobaccoproductsinsofarasallcigarettes containnicotineandcarcinogens.Id.Assuch,thedefendant characterized the plaintiff’s action as impermissibly claiming that cigarettes generally are unreasonably dangerous, in contravention to the proviso in comment (i) to § 402A of the Restatement (Second) that ‘‘[g]ood tobacco’’ (i.e., an ordinary, unadulterated cigarette) is not unreasonably dangerous. The defendant made a related claim that the determination whether Salem
cigarettes are unreasonably dangerous is exclusively governed by the ordinary consumer expectation test, as defined by comment (i) to § 402A, not the modified consumer expectation test that the plaintiff sought to apply. Id., 527. The defendant argued that application of the modified consumer expectation test would be improper because that test (a) only applies to products based on complex designs, which it claimed cigarettes are not, and (b) is conflict preempted by federal law because it could yield a result that in effect would require cigarette manufacturers to cease production to avoid liability, in contravention of Congress’ decision to permit the sale of tobacco products. Id., 537. The District Court rejected these claims in prejudgment and postjudgment motions. With respect to the plaintiff’s theory of the case, the court concluded that the plaintiff’s claim alleged, and the evidence demonstrated,thatSalemcigarettesareuniquelydesignedand manufacturedinsuchawaytomakethatproductdifferent from other cigarettes. Id., 526 n.3. With respect to the governing law, the court concluded that, although Connecticut derives an essential definition for product liability actions from comment (i) to § 402A of the Restatement (Second), there is no evidence that Connecticut has adopted the limitations in comment (i), including ‘‘[g]ood tobacco.’’ Id., 536. The court further concluded that the jury properly could be instructed on the modified consumer expectation test. The court reasoned that this test was appropriate because the evidence demonstrated the complex design of cigarettes and the potential inability of the ordinary consumer (a beginner smoker, often a youth or minor) to form proper safety expectations. Id., 537. Finally, the court concluded that a verdict for the plaintiff on that test under the plaintiff’s theory of the case would not amount to a ban on all cigarettes given the evidence of the unique design of Salem cigarettes. Id. Ultimately, the court decided to instruct the jury on both the ordinary and modified consumer expectation tests as alternative bases for liability. Id., 527, 535–36. In its instructions applicable to both tests, the District Courtcautioned:‘‘For[the]plaintifftomeetherburden of proving . . . that Salem . . . cigarettes are defective, she must show that the Salem . . . cigarettes were ‘unreasonably dangerous’ to her, the user. . . . With respect to cigarettes in general, I instruct you that cigarettes are not defective merely because nicotine and/or carcinogenicsubstancesmaybeinherentinthetobacco fromwhichsuchcigarettesaremanufactured.’’Id.,535. The jury returned a verdict in favor of the plaintiff, finding the defendant liable for both strict liability and negligent design.6 The verdict form did not indicate whether the jury’s strict liability verdict was premised ontheordinaryconsumerexpectationtestorthemodified consumer expectation test.
In accordance with the defendant’s request, the jury assessed comparative responsibility for the plaintiff’s injuries, attributing 42 percent to the plaintiff and 58 percenttothedefendant.Afterreducingthedamagesin accordancewiththeverdict,theDistrictCourtrendered judgment in the plaintiff’s favor in the amount of $7,982,250 in compensatory damages, as well as punitive damages and offer of judgment interest.7 The defendant appealed to the Second Circuit, renewing,interalia,itsclaimthattheplaintiff’sproduct liability cause of action is foreclosed by comment (i) to § 402A of the Restatement (Second) because comment (i) precludes liability of a seller of good tobacco. Because the Second Circuit deemed Connecticut law tobeunsettledregardingthismatter,itcertifiedaquestion of law to this court regarding the preclusive effect of comment (i) on a strict product liability claim. Beforethiscourt,theplaintiffargues:(1)theordinary consumer expectation test, on which both comment (i) to§ 402Aanditsgood tobaccoexamplearepredicated, has been superseded as a matter of Connecticut law in favor ofthe modified consumer expectationtest, under which consumer expectations are but one factor in assessing liability; (2) even under the ordinary consumer expectation test, the good tobacco exception in comment (i) to § 402A is limited to raw tobacco and doesnotrequireproof of‘‘adulteration’’or‘‘contamination’’ of the cigarettes; and (3) public policy considerations militateagainst applyingcomment (i)to § 402Ain amannerthatwouldimmunizecigarettemanufacturers from strict liability for design defects. In response, the defendant contends that, because the only question before this court is whether comment (i) to § 402A precludes an action against a cigarette manufacturer premised onan unadulterated cigarette, aquestion that arisesinconnectionwiththeordinaryconsumerexpectationtest,theplaintiff’sargumentrelatingtothemodified consumer expectation test is outside the scope of the certified question and should not be addressed. Moreover, it contends that the modified test is an improper test for unadulterated, generic cigarettes. As totheordinaryconsumerexpectationtestthatitclaims should govern, the defendant contends that, because the addictive and cancer causing properties of cigarettes have been well-known since at least the 1960s, jurisdictions espousing the standard in comment (i) to § 402A have routinely dismissed claims predicted on such alleged defects and this court should conclude likewise. I To resolve these competing contentions, it is necessary to provide some background on the development of Connecticut’s strict product liability law. In 1965, Connecticut became one of the first jurisdictions to
adopt, as a matter of state common law, § 402A of the Restatement (Second) of Torts, which had been adopted the previous year by the American Law Institute. See Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 214, citing Garthwait v. Burgio, 153 Conn. 284, 289–90, 216 A.2d 189 (1965). Section 402A recognizedanactionforstrictproductliabilityintortwithout the requirement of privity between the seller and the consumer or proof of manufacturer fault. See Potter v. Chicago Pneumatic Tool Co., supra, 210–11; Restatement (Third), Torts, Products Liability, introduction, p. 3 (1998). The elements of a strict liability action that this court derived from § 402A required the plaintiff to prove: ‘‘(1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition.’’ (Emphasis added.) Gigliov.ConnecticutLight&PowerCo.,180Conn.230, 234, 429 A.2d 486 (1980); accord Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 562, 227 A.2d 418 (1967); Garthwait v. Burgio, supra, 289. This court derived our definition of unreasonably dangerous, the second element of our strict liability test, from comment (i) to § 402A of the Restatement (Second): ‘‘To be considered unreasonably dangerous, the article sold must be dangerous to an extent beyond thatwhichwouldbecontemplatedbytheordinaryconsumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.’’ (Internalquotationmarksomitted.)Slepskiv.Williams Ford,Inc.,170Conn.18,23,364A.2d175(1975),quoting 2 Restatement (Second), supra, § 402A, comment (i), p. 352; accord Giglio v. Connecticut Light & Power Co., supra, 180 Conn. 234. This definition eventually came to be known under our law as the ordinary consumer expectation test. See Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 222. Althoughourcourtsrepeatedlyhaveappliedthisdefinition, they have never referred to the related explanationorillustrationsincomment(i)to§ 402A.Comment (i) to § 402A of the Restatement (Second) of Torts provides in full: ‘‘The rule stated in this [s]ection applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer.Manyproductscannotpossiblybemadeentirely safeforallconsumption,andanyfoodordrugnecessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. This is not what is meant by ‘unreasonably dangerous’ in this [s]ection. The article soldmustbedangeroustoanextentbeyondthatwhich
would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will makepeopledrunk,andisespeciallydangeroustoalcoholics;butbadwhiskey,containingadangerousamount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerousmerelybecause,ifsuchbethecase,itdepositscholesterolinthearteriesandleadstoheartattacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.’’ (Emphasis added.) To place comment (i) in its proper context, it is important to recognize that § 402A was adopted at a time when products liability historically had focused on manufacturing defects, particularly with respect to foodsafetyissues,beforedesigndefectsandinadequate safety warnings had become well established theories of strict product liability. See Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78, 89, 828 N.E.2d 1128 (2005)(‘‘[h]istorically,thefocusofproductsliabilitylaw was initially on manufacturing defects’’); V. Schwartz, ‘‘The Restatement, Third, Torts: Products Liability: A Model of Fairness and Balance,’’ 10 Kan. J.L. & Pub. Policy41,42(2000)(‘‘Noneofthecasescitedinsupport of § 402[A] discussed design liability. All of the cases concerned products that were mismanufactured.’’); 1 D. Owen & M. Davis, Products Liability (4th Ed. 2014) § 8.3, pp. 712–14 (explaining historical development of rule in light of defective food products); see also Restatement(Third),supra,introduction,p.3(‘‘[§]402A had little to say about liability for design defects or for products sold with inadequate warnings’’). This focus is reflected in the examples given in comment (i) of unreasonably dangerous products, i.e., contaminated butter or mismanufactured whiskey.8 In 1979, our legislature adopted our product liability act. See Public Acts 1979, No. 79-483. That liability act required all common-law theories of product liability tobebroughtasastatutorycauseofaction.SeeGeneral Statutes § 52-572n. However, the liability act neither expresslycodifiedourcommon-lawdefinitionofdefective product under § 402A and comment (i) nor supplanted it with its own definition. But see General Statutes § 52-572q (providing elements for failure to warn defect). A significant change under the liability act was the adoption of comparative responsibility in lieu of contributory fault, so that a plaintiff’s recovery couldbereducedinproportiontohisorherresponsibility for the injury but not barred, no matter how high the degree of fault. See General Statutes §§ 52-572l and 52-572o,legislativelyoverrulingHoelterv.MohawkService, Inc., 170 Conn. 495, 505–506, 365 A.2d 1064 (1976)
(importing contributory negligence concept and applying it to strict product liability). As product liability jurisprudence began to develop beyond its historical focus to include design defects and failure to warn defects, many jurisdictions found the ordinary consumer expectation test to be an inadequate tool. See Restatement (Third), supra, § 1, comment (a), pp. 6–7 (‘‘it soon became evident that § 402A, created to deal with liability for manufacturing defects, could not appropriately be applied to cases of design defects or defects based on inadequate instructions or warnings’’). Most obviously, one could not simply compare the defective product to others in the product line to make an objective assessment of the consumer’s expectations of the product. See id., § 2, comment (a), pp.15–16(‘‘Incontrasttomanufacturingdefects,design defects and defects based on inadequate instructions or warnings are predicated on a different concept of responsibility. . . . [S]uch defects cannot be determined by reference to the manufacturer’s own design or marketing standards because those standards are the very ones that plaintiffs attack as unreasonable. Some sort of independent assessment of advantages anddisadvantages,towhichsomeattachthelabel‘riskutility balancing,’ is necessary.’’); Ford Motor Co. v. Pool, 688 S.W.2d 879, 881 (Tex. App. 1985) (‘‘Manufacturing defect cases involve products which are flawed, i.e., which do not conform to the manufacturer’s own specifications, and are not identical to their mass-produced siblings. The flaw theory is based upon a fundamental consumer expectancy: that a mass-produced product will not differ from its siblings in a manner thatmakesitmoredangerousthantheothers.Defective design cases, however, are not based on consumer expectancy,butonthemanufacturer’sdesignofaproduct which makes it unreasonably dangerous, even though not flawed in its manufacture.’’), aff’d in part and rev’d in part on other grounds, 715 S.W.2d 629 (Tex. 1986). Forthisandotherreasonsprincipallyrelatedtoproblems ofproof, many jurisdictions adopteda multifactor ‘‘risk-utility’’ balancing test for design defect cases in lieuof,orinaddition,totheconsumerexpectationtest. See, e.g., Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 884 (Alaska 1979); Barker v. Lull Engineering Co., 20 Cal. 3d 413, 435, 573 P.2d 443, 143 Cal. Rptr. 225 (1978); Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo. 1992) (en banc); Radiation Technology, Inc. v. Ware ConstructionCo.,445So.2d329,331(Fla.1983);Ontai v. Straub Clinic & Hospital, Inc., 66 Haw. 237, 243, 659 P.2d 734 (1983); Lamkin v. Towner, 138 Ill. 2d 510, 529,563N.E.2d449(1990);Thibaultv.Sears,Roebuck& Co., 118 N.H. 802, 807–809, 395 A.2d 843 (1978); Turner v. General Motors Corp., 584 S.W.2d 844, 848 (Tex. 1979); see also 1 D. Owen & M. Davis, supra, § 8.15, p. 762 (‘‘during the 1980s . . . the consumer expectation
test gradually lost ground to risk-utility in their battle for supremacy as independent tests of design defectiveness’’ [footnote omitted]). When the Restatement (Third) of Torts was adopted by the American Law Institute in 1997, it deemed the consumer expectation test inappropriate for design defects and abandoned thattestinfavorofarisk-utilitytestthatfocusedonthe availability of a feasible, safer alternative. Restatement (Third), supra, § 2 (b); id., § 2, comment (g), pp. 27–28. UndertheRestatement(Third)ofTortsandthevarious jurisdictions’ risk-utility tests, consumer expectations werearelevant,but notnecessarilydispositive,consideration in determining whether there was a design defect. Restatement (Third), supra, § 2, comment (d), p. 20; id., § 2, reporters’ note, comment (d) (IV) (C), pp. 84–87. In 1997, in Potter, this court considered the viability of our ordinary consumer expectation test for design defect cases. See Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 206–23. The defendants in that case had requested that the court abandon that test for such cases in favor of the risk-utility test in the second tentative draft of the Restatement (Third) of Torts.9 Id., 215. The court declined to adopt the test in the draft Restatement (Third). Id., 217–19. The court viewed an absolute requirement of proof of a feasible alternative design to impose an undue burden on plaintiffs and to precludeclaimsthatshouldbevalidevenintheabsence of such proof. Id., 217–18. AlthoughthecourtinPottermaintaineditsallegiance to § 402A, it acknowledged criticisms of the ordinary consumer expectation test and decided that some change in our law was necessary because that test also could preclude relief for valid claims. Id., 219–20. In particular,thecourtpointedtotheproblemofcomplex productsforwhichaconsumermightnothaveinformed safety expectations. Id., 219. The court was concerned, however, with shifting the focus to the conduct of the manufacturerandinturnabandoningstrictliability.Id., 221–22. Accordingly, the court decided to adopt a test that would incorporate risk-utility factors into the ordinaryconsumerframework.Id.,220–21.Underthe‘‘modified’’ consumer expectation test, the jury would weigh theproduct’srisksandutilityandtheninquire,inlightof those factors, whether a ‘‘reasonable consumer would consider the product design unreasonably dangerous.’’ Id., 221. The court’s sample jury instruction incorporated the definition of unreasonably dangerous from comment(i)to§ 402AoftheRestatement(Second)and then provided a nonexclusive list of factors that could beusedtodeterminewhatanordinaryconsumerwould expect.10 Id., 221 n.15. ‘‘The availability of a feasible alternative design is a factor that a plaintiff may, rather than must, prove in order to establish that a product’s risks outweigh its utility.’’ Id., 221.
The court in Potter emphasized that it would ‘‘not require a plaintiff to present evidence relating to the product’s risks and utility in every case. . . . There are certain kinds of accidents—even where fairly complex machinery is involved—[that] are so bizarre that the average juror, upon hearing the particulars, might reasonably think: Whatever the user may have expected from that contraption, it certainly wasn’t that. . . . Accordingly, the ordinary consumer expectation test [would be] appropriate when the everyday experience of the particular product’s users permits the inference that the product did not meet minimum safety expectations.’’(Citationomitted;internalquotationmarksomitted.) Id., 222. In other words, the ordinary consumer expectation test would be appropriate when the incident causing injury is so bizarre or unusual that the jury would not need expert testimony to conclude that theproductfailedtomeettheconsumer’sexpectations. The court also indicated that instructions regarding both tests could be given to the jury, if supported by the evidence. Id., 223. Potter was decided at a point in time when Connecticutdesigndefectjurisprudencewasnotwelldeveloped. Indeed, as the present case illustrates, because actions underourliabilityactoftenhavebeenbroughtinfederal court, this court has had limited opportunities to do so.Subsequentcaselawandcommentaryhasindicated that Potter was not clear as to when resort to each test would be appropriate and under what circumstances both tests properly could be submitted to a jury. See generally D. Fisher, ‘‘Connecticut’s Jury Instruction on Design Defect Is Defective: A Second Look at Potter v. Chicago Pneumatic Tool,’’ 84 Conn. B.J. 325 (2010) (complaining that Potter left uncertainties); J. Farley et al., ‘‘Recent Developments in Connecticut Products Liability Law: Breaking New Ground in Design Defect Cases,’’ 73 Conn. B.J. 41, 41–44 (1999) (same); compare Savage v. Scripto-Tokai Corp., 266 F. Supp. 2d 344, 350 (D.Conn.2003)(rejectingdefendant’sargumentthat,in Connecticut, ordinary products are subject to ordinary test, while complex products may be subject to modified test, as ‘‘a misreading of Potter’’), with Moss v. Wyeth, Inc., 872 F. Supp. 2d 162, 166 (D. Conn. 2012) (limiting modified test to complex products), Izzarelli v. R.J. Reynolds Tobacco Co., supra, 806 F. Supp. 2d 527,537(treatingmodifiedtestasstandardforcomplex product designs), and Netherlands Ins. Co. v. Tin Ceiling Xpress, Inc., Superior Court, judicial district of Windham, Docket No. CV-12-6005760-S, 2014 WL 7495053, *3 (October 30, 2014) (equating modified test tomalfunctiontheory).Thepresentcaseisaparadigmatic example of the confusion left in Potter’s wake. The defendantcontendsthat,underPotter,onlytheordinary consumer expectation test applies to the present case becausethemodifiedtestis limitedtocomplexdesigns for which consumers lack safety expectations. The
plaintiff contends that, under Potter, the modified consumer expectation test is the default test with the ordinary test limited to res ipsa type cases, in which the consumer’s minimum expectations of the product have not been met. We have not been presented with an opportunitysince Potter toaddresssquarely ourdesign defect standards. We therefore take this opportunity to revisit Potter and dispel the ambiguity created by it, with the advantage of hindsight informed by almost two decades of subsequent developments in product liability law.11 II At the outset, we address the defendant’s contention that our analysis must be limited to the ordinary consumerexpectationtestbecausethemodifiedconsumer expectation test falls outside of the scope of the certified question. Simply put, we disagree. The certified question asks: ‘‘Does [comment (i) to § 402A] preclude a suit premised on strict products liability against a cigarette manufacturer based on evidence that the defendant [designed] cigarettes to increase daily consumption without regard to the resultant increase in exposuretocarcinogens,butintheabsenceofevidence of adulteration or contamination?’’ As we have explained in part I of this opinion, § 402A of the Restatement (Second) is the governing standard for bothtestsandthedefinitionincomment(i)ofunreasonably dangerous plays a role in each test. See D’Ascanio v. Toyota Industries Corp., 309 Conn. 663, 673 n.5, 72 A.3d 1019 (2013) (citing standard under § 402A as governing all strict product liability actions); see also Reed v. Tiffin Motor Homes, Inc., 697 F.2d 1192, 1197 (4th Cir. 1982) (risk-utility test ‘‘finds its roots in [c]omment [i] to § 402A’’). Even if, however, the modified consumer expectation test did not fall within the scope ofthecertifiedquestion,wemayreformulateaquestion certified to us. See General Statutes § 51-199b (k). Pursuant to § 51-199b (f) (3), the Second Circuit invited us to modify the question as necessary or answer other questions that we deem relevant. See Izzarelli v. R.J. ReynoldsTobaccoCo.,supra,731F.3d169.Accordingly, it isproper forus toconsider the scopeand application of the modified consumer expectation test as it bears on our resolution of the present case. For the reasons set forth subsequently, we reach the following conclusions regarding the standards for a strict product liability action based on defective design generally and in the present case. Under Potter, the modifiedconsumerexpectationtestisourprimarytest. The ordinary consumer expectation test is reserved for cases in which the product failed to meet the ordinary consumer’s minimum safety expectations, such as res ipsa type cases. A jury could not reasonably conclude that cigarettes that cause cancer fail to meet the consumer’s minimum safety expectations. Therefore, the
plaintiff was required to proceed under the modified consumer expectation test. Comment (i) to § 402A of the Restatement (Second) does not present a per se bar to recovery under the modified consumer expectation test. Accordingly, the answer to the certified question is ‘‘no.’’ To begin, we acknowledge that there is language in Potter, as well as in subsequent Connecticut case law, thatcouldsupporteachofthefollowinginterpretations of our strict liability standards for design defects: (1) the ordinary consumer expectation test is the primary test, with the modified consumer expectation test reserved exclusively for complex product designs for which an ordinary consumer could not form safety expectations (simple/complex divide); (2) the modified consumer expectation test is the default test, with the ordinary consumer expectation test reserved for productsthatfailtomeetminimumsafetyexpectations;and (3) a plaintiff may elect to proceed under either test or both tests, such that, even if the claim fails under the ordinary consumer expectation test, the plaintiff may prevail under the modified consumer expectation test with the assistance of expert testimony.12 We are not persuaded that Potter intended to draw a simple/complex divide. The court in Potter pointed to the problem in proving consumers’ safety expectations for complex products because that concern was implicated in the case before the court and was the mostobviousmisfitfortheordinaryconsumerexpectation test. Potter involved pneumatic hand tools alleged tobedefectivebecausetheyexposeduserstoexcessive vibration,whichinturncausedpermanentvascularand neurological damage to the users’ hands. Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 202–204. The plaintiffs relied on expert testimony from various engineers and industry standards to prove their case.13 Id., 204–206. Notably, although concerns about proof for complex products was foremost in the court’s mind when adopting the modified test, the court stated no limitations on the circumstances in which that test could be applied. Instead, all of the limitations discussed were in reference to the application of the ordinary consumer expectation test. See id., 222–23 (The court cited to bizarre accidents as examples of when resort to the ordinary consumer test would be appropriate, and noted: ‘‘[T]he jury should engage in the riskutility balancing required by our modified consumer expectation test when the particular facts do not reasonably permit the inference that the product did not meet thesafety expectations of theordinary consumer. . . . Furthermore, instructions based on the ordinary consumer expectation test would not be appropriate when, as a matter of law, there is insufficient evidence to support a jury verdict under that test. . . . In such circumstances, the jury should be instructed solely on themodifiedconsumerexpectationtestwehavearticu
lated today.’’ [Citations omitted.]). Moreover, a simple/complex divide would not be ideal because the line between these categories is not always clear. See id., 269 n.2 (Berdon, J., concurring) (criticizing majority for failure to provide such guidance); D. Fisher, supra, 84 Conn. B.J. 333 (‘‘it would be helpfultoprovideguidanceasto how thecourtdecides whether a case is ‘complex’ or ‘simple’ ’’ [emphasis in original]). Indeed, one could readily categorize the defendant’s Salem cigarettes as a complex product because of the hundreds of ingredients incorporated into Salem cigarettes, as well as the myriad physical, chemical and biochemical variables that were considered in designing that product. Cf. Evans v. Lorillard Tobacco Co., 465 Mass. 411, 428, 990 N.E.2d 997 (2013) (noting that evidence established that cigarette is ‘‘highly engineered product’’); Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748, 796 (Mo. App. 2008) (same). Alternatively, one could view the defendant’s cigarettes as a simple product if characterized as nothing more than a nicotine delivery system that carries a known risk of causing cancer. We observe that other jurisdictions that apply both a consumer expectation test and a risk-utility test have rejected the simple/complex divide. See, e.g., Mikolajczykv.FordMotorCo.,231Ill.2d516,528–41,901N.E.2d 329 (2008) (rejecting argument that risk-utility test is only test to be applied if product is complex and if injury occurred in circumstances unfamiliar to average consumer and that consumer expectation test is reserved for cases involving simple products or everyday circumstances); Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 250, 864 N.E.2d 249 (2007) (‘‘In Illinois, two tests are employed when determining whether a product is unreasonably dangerous under a strict liability design-defect theory—the consumer-expectation test and the risk-utility test. In this case, we are asked to consider whether there is a ‘simple product’ exception totheapplicationoftherisk-utilitytest.Thatis,wemust decidewhetheraproductwhichisdeemed‘simple’and its dangers ‘open and obvious’ will be per se exempt from the risk-utility test and subject only to the consumer-expectation test. We decline to adopt such a per se rule.’’); see also Soule v. General Motors Corp., 8 Cal. 4th 548, 568–69, 882 P.2d 298, 34 Cal. Rptr. 2d 607 (1994) (The court rejected the defendant’s argument ‘‘thattheconsumerexpectationstestisimproperwhenever . . . a complex product, or technical questions of causation are at issue. Because the variety of potential product injuries is infinite, the line cannot be drawn as clearly as [the defendant] proposes. But the fundamental distinction is not impossible to define. The crucial question in each individual case is whether the circumstancesoftheproduct’sfailurepermitaninferencethat the product’s design performed below the legitimate, commonlyacceptedminimumsafetyassumptionsofits
ordinary consumers.’’); Soule v. General Motors Corp., supra, 570 (explaining that risk-utility test was only proper test in that case, not because product was complex but because jury required expert testimony to determine whether product was not reasonably safe). Although some of the shortcomings of the ordinary consumer expectation test have been best illustrated in relation to complex designs, the concerns with this test have never been limited to such designs. See, e.g., J. Beasley, Products Liability and the Unreasonably Dangerous Requirement (1981) p. 88 (asserting that consumerexpectationtesthas‘‘littlelogicalapplication to new products, where no expectation of safety may have developed, or to obscure products with a limited market, where the number of consumers is not conducive to a clear consensus,’’ and also noting opposite problem,that‘‘ifanentireindustryrejectsasafedesign and uses an unsafe one, the unsafe one may have become expected’’); see also S. Birnbaum, ‘‘Unmasking the Test for Design Defect: From Negligence [to Warranty]toStrictLiabilitytoNegligence,’’33VanderbiltL. Rev.593,613–15(1980)(discussinggenerallyapplicable concerns with ordinary consumer expectation test). Onesignificantconcernhasbeenthattheordinaryconsumer expectation test, which deems unreasonable only those dangers that would not be anticipated by an ordinary consumer, could preclude recovery whenever a product’s dangers were open and obvious. W. Keeton et al., Prosser and Keeton on the Law of Torts (5th Ed. 1984) § 99, pp. 698–99; A. Weinstein et al., Products Liability and the Reasonably Safe Product (1978) pp. 45–46 (‘‘The difficulty with [the ordinary consumer expectation] test is that it suggests that a manufacturer has fulfilled all his duties to the consumer if the product’s dangers are open and obvious. In many instances manufacturers have been absolved from liability when an obvious danger caused serious injury, even though that injury could have been averted by a design modification that would not have added significantly to the cost of the product or impaired its usefulness.’’). The court in Potter had no occasion to address this concern.Nonetheless,itisevidentthatlimitingthemodified test to complex products for which the consumer could not form safety expectations would be antitheticaltothepublicpolicies informingourproductliability law. A consequence of such a limitation would be to immunize manufacturers even when they readily could have reduced or eliminated the product’s danger. It could also immunize manufacturers for design decisions that increase the risk of known dangers, as in the present case. Our legislature’s express rejection of comparative or contributory negligence as a bar to recovery in a strict liability action would be in tension with a sweeping immunity based solely on the consumer’sknowledge.Cf.Callesv.Scripto-TokaiCorp.,supra, 224 Ill. 2d 262 (reaching same conclusion in light of
legislature’s rejection of assumption of risk as bar to strictproductsliability).Moreover,Potterexpandedour product liability tests to remove impediments to recovery.14 Cf. 1 D. Owen & M. Davis, supra, § 8.4, pp. 715–16 (‘‘[a]lthough the consumer expectations standard was conventionally viewed as more protective to plaintiffs than the risk-utility standard, it now is clear that courts have used the consumer expectations test most frequently to deny recoveryto plaintiffs in cases involving obvious design hazards’’ [emphasis in original; footnote omitted]). Morefundamentally,providingsuchimmunitywould remove an important incentive to improving product safety. For this reason, there has been a clear and overwhelming trend in other jurisdictions to allow consumers to pursue defective product design claims despite open and obvious dangers, usually under a multifactor risk-utility test. See Restatement (Third), supra, § 2, reporters’ note, comment (d) (IV) (C), pp. 84–87; see, e.g., Barker v. Lull Engineering Co., supra, 20 Cal. 3d 425 (‘‘we flatly rejected the suggestion that recovery in a products liability action should be permitted only if a product is more dangerous than contemplated by the average consumer, refusing to permit the low esteem in which the public might hold a dangerous product to diminish the manufacturer’s responsibility for injuries caused by that product’’ [emphasis in original]); Ogletree v. Navistar International Transportation Corp., 269 Ga. 443, 444, 500 S.E.2d 570 (1998) (‘‘The overwhelming majority of jurisdictions have held that the open and obvious nature of the danger does not preclude liability for design defects. . . . Moreover, academic commentators are almost unanimous in their criticism of the rule.’’ [Citations omitted.]); Calles v. Scripto-Tokai Corp., supra, 224 Ill. 2d 262 (expressing concern that ‘‘[a]doption of a [per se] rule [excepting simple products with open and obvious dangers from analysis under the risk-utility test] would essentially absolve manufacturers from liability in certain situations even though there may be a reasonable and feasible alternative design available that would make a product safer, but which the manufacturer declines to incorporatebecauseitknowsitwillnotbeheldliable’’); see also 1 D. Owen et al., Products Liability (3d Ed. 2000) § 8:3, p. 447 (consumer expectation test limited by open and obvious doctrine ‘‘perniciously rewards manufacturers for failing to adopt cost-effective measures to remedy obviously unnecessary dangers to human life and limb’’); J. Beasley, supra, p. 89 (‘‘One of the greatest dangers of the [c]omment [i] [to § 402A] standard is that it encourages the perpetuation of poor manufacturing and design practices. The more uniformly a certain shoddiness is allowed to go unrestrained, the more it comes to be expected. . . . The trouble with a ‘consumer expectation’ test is that it allows an industry to set its own standards with no
check upon its own self-interest.’’). Making the modified consumer expectation test our default test for design defect claims, and reserving the ordinary consumer expectation test for those products that fail to meet legitimate, commonly accepted minimum safety expectations, provides a safety incentive thatis consonantwithour state’spublic policies.Moreover, such a framework is the only one that can be reconciled with this court’s direction in Potter that the jury could be instructed on both tests if supported by the evidence. Allowing the jury to consider both tests isonlylogicalifthestandard,andnotmerelythenature of proof, differs under each test. If the two tests were merely alternative methods of proving the same standard—the product failed to meet the ordinary consumer’s expectations—then a jury’s verdict that this standardwasnotmetunderonetestcouldnotlogically be reconciled with a verdict that this standard was met undertheothertest.Eithertheproductmettheordinary consumer’s expectations, or it did not. If, however, one test sets the floor for recovery—a product that meets minimum safety expectations—then a verdict for the defendant on that test logically could be reconciled with a plaintiff’s verdict on a test that sets a higher standard. Cf. Barker v. Lull Engineering Co., supra, 20 Cal. 3d 426 n.7 (‘‘The flaw in the . . . analysis [of the Restatement (Second)] . . . is that it treats such consumer expectations as a ‘ceiling’ on a manufacturer’s responsibility under strict liability principles, rather than as a ‘floor.’ . . . [P]ast . . . decisions establish that at a minimum a product must meet ordinary consumer expectations as to safety to avoid being found defective.’’ [Emphasis omitted.]). In other words, a product might meet the consumer’s minimum safety expectations because the product’s dangers are known or obvious but nonetheless be defective because it could have been designed to be less dangerous without unreasonably compromising cost or utility (e.g., a table saw lacking a safety guard). See id., 430 (‘‘a product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product’s design embodies ‘excessive preventable danger,’ or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design’’).15 Accordingly,weholdthat,underourproductliability law,theordinaryconsumerexpectationtestisreserved for those limited cases in which a product fails to meet a consumer’s legitimate, commonly accepted minimum safety expectations. Expert testimony on product design is not needed to prove the product’s defect, nor is the utility of the product’s design an excuse for the undisclosed defect. See Soule v. General Motors Corp., supra, 8 Cal. 4th 567 (‘‘the consumer expectations test is reserved for cases in which the everyday experience
of the product’s users permits a conclusion that the product’sdesignviolatedminimumsafetyassumptions, andisthusdefectiveregardlessofexpertopinionabout the merits of the design’’ [emphasis omitted]); A. Twerski&J.Henderson,‘‘Manufacturers’LiabilityforDefective Product Designs: The Triumph of Risk-Utility,’’ 74 Brook.L.Rev.1061,1108(2009)(‘‘overwhelmingmajority of cases that rely on consumer expectations as the theory for imposing liability do so only in res ipsa-like situationsinwhichaninferenceofdefectcanbedrawn from the happening of a product-related accident’’). All other cases should be determined under the modified consumer expectation test. With this clarification of our law, it is evident that the plaintiff in the present case properly could proceed only under the modified consumer expectation test. A cigarette that exposes the user to carcinogens and the attendant risk of cancer cannot be said to fail to meet anordinaryconsumer’slegitimate,commonlyaccepted minimum safetyexpectations.16 Toestablish thedefect, the plaintiff’s case required expert testimony on cigarette design and manufacture, as well as the feasibility of an alternative design. The defendant contends, however, that applying the modified consumer expectation test to cigarettes would be improper because it would effectively result in a de facto ban on cigarettes, in violation of our legislature’s ‘‘ratifi[cation]’’ of this court’s adoption of comment (i) to § 402A in our productliabilityactandCongress’declarationthatcigarettes are a legal product. See Food & Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 136–37, 120 S. Ct. 1291, 146 L. Ed. 2d 121 (2000) (concluding that, because Congress had demonstrated that itforeclosedremovaloftobaccoproductsfrommarket, FederalDrugAdministration[FDA]wasprecludedfrom regulatingtobaccoproductswhenFDA’sstatutorymandatewould requireit toban theminlight ofits determination that such products cannot be made safe for intended use). We are not persuaded. Our legislature did not ratify this court’s previous adoption of comment (i) to § 402A when it enacted the liabilityact.Neither§ 402Anorcomment(i)isexpressly orimplicitlyreferencedintheliabilityact.Cf.S.C.Code Ann. § 15-73-30 (2005) (‘‘[c]omments to § 402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter’’);17 Wn. Rev. Code Ann. § 7.72.030 (3) (West 2007) (‘‘[i]n determining whether a product was not reasonablysafeunderthissection,thetrieroffactshall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer’’). Potter plainly reflects this court’s understanding that, except where preempted by the liabilityact,thelegislatureleftthedevelopmentofproduct liability standards to the common law. The court would have been required to reject the defendant’s
requestinPottertoadopttheRestatement(Third)standard had the legislature effectively codified comment (i) to § 402A of the Restatement (Second). Instead, the court rejected the Restatement (Third) standard after considering its merits. Withregardtothedefendant’spreemptionargument, we have two responses. Insofar as this argument implicates federal preemption and evidentiary issues, we believe such matters should be resolved by the Second Circuit. Insofar as the defendant contends that application of the modified consumer expectation test to circumstanceslikethepresentcasecouldeffectivelyallow a jury to ban commonly used and useful products, thus usurping our legislature’s authority over such matters, we find such concerns too speculative to warrant a contrary rule. We have every confidence that the possibility of such outlier verdicts could be addressed throughamotionforjudgmentnotwithstandingtheverdict. Cf. Calles v. Scripto-Tokai Corp., 358 Ill. App. 3d 975, 982, 832 N.E.2d 409 (2005) (‘‘in very extreme cases [i.e., products with very low production costs], courts maymakethedeterminationthatthecost-benefitanalysis under the risk-utility test strongly favors the manufacturer and there is no need to send the case to [the] jurybecausenoreasonablejurycouldfindfortheplaintiff’’ [internal quotation marks omitted]), aff’d, Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 864 N.E.2d 249 (2007); Hernandez v. Tokai Corp., 2 S.W.3d 251, 261 (Tex.1999)(‘‘theissueofwhethertheproductisunreasonably dangerous as designed may nevertheless be a legal one if reasonable minds cannot differ on the riskutility analysis considerations’’). Finally, we note that other jurisdictions applying some form of risk-utility test to design defect claims against cigarette manufacturers have found no impedimenttotheapplicationofthattestiftheplaintiffidentifies some defect specific to the cigarette brand(s) at issue and/or a reasonably safer alternative.18 See Philip Morris USA, Inc. v. Arnitz, 933 So. 2d 693, 695 (Fla. App.)(affirmingjudgmentinfavorofplaintiffondesign defect theory based on claim that, while plaintiff knew that smoking posed health risk, consumers did not know of increased risk posed by defects in product where manufacturer: used additives or flavorants to overcome body’s natural defenses to inhaling smoke, thus making cigarettes easier to inhale; used as many as 110 to 115 total additives and that some additives changed form of nicotine to freebase nicotine, which can lead to greater nicotine addiction; and used ‘‘ ‘fluecured’ ’’tobacco, whichincreasedlevel ofcarcinogenic tobacco specific nitrosamines in tobacco), review denied, 946 So. 2d 1071 (Fla. 2006); Evans v. Lorillard Tobacco Co., supra, 465 Mass. 428–29, 431 (The court affirmed the verdict for the plaintiff who established that cigarettes are a highly engineered product, that the defendant manipulated its product to give smokers
particular doses of tar and nicotine, that the defendant maintained the addictive level of nicotine, and that the plaintiff had proposed as a reasonable alternative a cigarette without menthol in which the carcinogens in the tar are at a level that is relatively safe and where the level of nicotine is nonaddictive. ‘‘We do not accept [the defendant’s] implicit suggestion that every cigarette, to be a cigarette, must contain levels of tar that cause a high risk of cancer and levels of nicotine that areaddictive.’’);Haglundv.PhilipMorris,Inc.,Docket No.012367C,2009WL3839004,*1,3,9–10(Mass.Super. October 20, 2009) (The court denied a motion for summary judgment, applying a feasible, safer alternative designtestunder§ 2oftheRestatement[Third]ofTorts under an implied warranty theory, where the plaintiff alleged that the defendant manipulated nicotine levels via cigarette construction technology and tobacco blend selection, increasing free nicotine and increasing inhalability through tobacco processing, including the specificationofflavorants,additivesandsmokechemistry. The jury must weigh the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.); Smith v. Brown & Williamson Tobacco Corp., supra, 275 S.W.3d 796 (jury that was not limited in factors to determine if defective product unreasonably dangerous properly returned verdict for plaintiffwhereevidencewentbeyondcategoricalattack on danger of cigarettes in general and instead demonstrated specific design choices that had potential to affect plaintiff’s health during time period she smoked, including evidence that cigarettes were highly engineered product, different from other cigarettes, contained menthol to numb throat and make it easier to inhale more deeply and allowed more nicotine to be deliveredtobody);Tomasinov.AmericanTobaccoCo., 23 App. Div. 3d 546, 548–49, 807 N.Y.S.2d 603 (2005) (concluding that defendants’ motions for summary judgment were properly denied and rejecting their contention that they were entitled to judgment because cigarettes were in condition reasonably contemplated byultimateconsumer);Mielev.AmericanTobaccoCo., 2 App. Div. 3d 799, 801, 805, 770 N.Y.S.2d 386 (2003) (The court reversed the lower court’s ruling granting thedefendants’motionsforsummaryjudgmentbecause the evidence that ‘‘the tobacco companies opted not to develop, pursue, or exploit available technologies to reduce the toxins in cigarettes which cause disease, sufficed to raise an issue of fact as to whether the foreseeableriskofharmposedbycigarettescouldhave been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer respondents. It is ineluctable that, based upon the evidence presented by the plaintiff, a jury may determine that the tobacco companies’ objective was to entrap the cigarette smoker to preserve and enhance their eco
nomic objectives.’’); Semowich v. R.J. Reynolds Tobacco Co., Docket No. 86-CV-118, 1988 WL 86313, *3–4 (N.D.N.Y. August 18, 1988) (rejecting defendant’s argumentthatcomment[i]to§ 402AoftheRestatement [Second] precluded plaintiff’s claim because, to extent that comment [i] suggests cigarettes cannot be defective, it does not represent New York law, but noting that plaintiff must present evidence that product, as designed, was not reasonably safe because there was substantial likelihood of harm and it was feasible to design product in safer manner). Finally, we turn to the question of whether comment (i)to§ 402AoftheRestatement(Second)isapersebar totheplaintiff’srecovery underthemodifiedconsumer expectation test. We conclude that it is not. Comment (i) to § 402A serves a limited role under the modified consumer expectation test. Although the modified test asks the jury to weigh various factors through the ultimate lens of the consumer’s expectations,asafunctionalandpracticalmatterthatweighing process supplants the definition in comment (i) of unreasonably dangerous.19 Cf. Wright v. Brooke Group Ltd., 652 N.W.2d 159, 169–70 (Iowa 2002) (concluding that comment [i] to § 402A does not apply after court adopted risk-utility test). In other words, the factors thatthecourtinPotteridentifiedessentiallyprovidethe jury with information that a fully informed consumer would know before deciding whether to purchase the product. See Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 221. When the consumer has specific product expectations that differ from those factors, those too may be factored into the weighing process. Itcouldbethat,inagivencase,theconsumer’sexpectations of the product would be the determinative factor. See Blue v. Environmental Engineering, Inc., supra, 215 Ill. 2d 87 (‘‘[u]nder the risk-utility test, the open and obvious nature of the risk is just one factor to be considered within this range of considerations and it will only serve to bar the liability of the manufacturer where it outweighs all other factors to be considered in weighing the inherent risks against the utility of the product as manufactured’’); Delaney v. Deere & Co., 268 Kan. 769, 792–93, 999 P.2d 930 (2000) (rejecting open and obvious danger as precluding recovery and insteadmakingthatfactmerelyoneofseveralinforming consumer’s expectations); Evans v. Lorillard Tobacco Co., supra, 465 Mass. 428 (noting that under risk-utility test, ‘‘because reasonable consumer expectations are simply one ofmany factors that maybe considered and not necessarily the determinative factor, the plaintiff wasnotobligatedtoprovethatNewportcigaretteswere more dangerous than consumers reasonably expected’’);Tomasinov.AmericanTobaccoCo.,supra, 23 App. Div. 3d 548–49 (‘‘The mere fact that a risk presented by a product design is open and obvious, or generally known, and that the product thus satisfies
expectations . . . may substantially influence or even be ultimately determinative on risk-utility balancing in judging whether the omission of a proposed alternative design renders the product not reasonably safe. It follows that, while disappointment of consumer expectationsmaynotserveasanindependentbasisforallowing recovery under [the design defect theory], neither may conformance with consumer expectations serve as an independent basis for denying recovery. Such expectations may be relevant in both contexts, but in neither are they controlling . . . .’’ [Citations omitted; internal quotation marks omitted.]). To allow the ordinary consumer’s awareness of the product’s potential danger to preclude recovery as a matter of law, however, would make Connecticut an outlier and defeat our intention in relegating the ordinaryconsumerexpectationtesttoamorelimitedrole.20 Indeed, irrespective of the incorporation of the definition of unreasonably dangerous from comment (i) to § 402A into the modified test, it would be contrary to the public policy of this state to incorporate the exceptions in comment (i) insofar as they would immunize amanufacturerfromliabilityformanipulatingtheinherently dangerous properties of its product to pose a greater risk of danger to the consumer. See Witherspoon v. Philip Morris, Inc., 964 F. Supp. 455, 466 (D.D.C. 1997) (‘‘The infamous comment [i] following § 402A appears to be on very shaky ground currently. Attitudesandknowledgeaboutcigaretteshavechanged immensely since the comment was written and there is at least some authority that comment [i] is no longer areasonableexplanationofunreasonablydangerous.’’).
Outcome: We answer the certified question ‘‘no.’’ No costs shall be taxed in this court to either party.