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Izzarelli v. R.J. Reynolds Tobacco Co.

Supreme Court of Connecticut

May 3, 2016

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

Argued April 22, 2015

David S. Golub, with whom were Jonathan M. Levine and, on the brief, Marilyn J. Ramos, 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, 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 filed a brief for the Public Health Advocacy Institute as amicus curiae.

Kathleen L. Nastri 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.

OPINION

McDONALD, J.

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 Torts[1] 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 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).

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 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., 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 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 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., 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., 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., 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 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 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 canceris dose related, increasing the Salem smoker’s exposure to carcinogens increased the likelihood of cancer. 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 three packs of Salem cigarettes 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.

In 1996, at age thirty-six and after smoking for twenty-five years, the plaintiff was diagnosed with cancer of the larynx. Id., 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 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 common to all tobacco products insofar as all cigarettes contain nicotine and carcinogens. Id. As such, the defendant 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, that Salem cigarettes are uniquely designed and manufactured in such a way to make that product different 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 Court cautioned: ‘‘For [the] plaintiff to meet her burden 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 carcinogenic substances may be inherent in the tobacco from which such cigarettes are manufactured.’’ 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 on the ordinary consumer expectation test or the modified 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 percent to the defendant. After reducing the damages in accordance with the verdict, the District Court rendered 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, inter alia, its claim that the plaintiff’s product 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 to be unsettled regarding this matter, it certified a question of law to this court regarding the preclusive effect of comment (i) on a strict product liability claim.

Before this court, the plaintiff argues: (1) the ordinary consumer expectation test, on which both comment (i) to § 402A and its good tobacco example are predicated, has been superseded as a matter of Connecticut law in favor of the modified consumer expectation test, 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 does not require proof of ‘‘adulteration’’ or ‘‘contamination’’ of the cigarettes; and (3) public policy considerations militate against applying comment (i) to § 402A in a manner that would immunize cigarette manufacturers 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 on an unadulterated cigarette, a question that arises in connection with the ordinary consumer expectation test, the plaintiff’s argument relating to the modified 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 to the ordinary consumer expectation test that it claims 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 recognized an action for strict product liability in tort without 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.) Giglio v. Connecticut Light & Power Co., 180 Conn. 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 that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.’’ (Internal quotation marks omitted.) Slepski v. Williams Ford, Inc., 170 Conn. 18, 23, 364 A.2d 175 (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.

Although our courts repeatedly have applied this definition, they have never referred to the related explanation or illustrations in comment (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. Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily 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 sold must be dangerous to an extent beyond that which 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 make people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount 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 dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; 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 food safety issues, before design defects and inadequate 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, the focus of products liability law was initially on manufacturing defects’’); V. Schwartz, ‘‘The Restatement, Third, Torts: Products Liability: A Model of Fairness and Balance, ’’ 10 Kan. J.L. & Pub. Policy 41, 42 (2000) (‘‘None of the cases cited in support 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 to be brought as a statutory cause of action. See General Statutes § 52-572n. However, the liability act neither expressly codified our common-law definition of defective 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 could be reduced in proportion to his or her responsibility for the injury but not barred, no matter how high the degree of fault. See General Statutes §§ 52-572l and 52-572o, legislatively overruling Hoelter v. Mohawk Service, 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 (‘‘In contrast to manufacturing defects, 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 and disadvantages, to which some attach the label ‘risk-utility 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 that makes it more dangerous than the others. Defective design cases, however, are not based on consumer expectancy, but on the manufacturer’s design of a product 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).

For this and other reasons principally related to problems of proof, many jurisdictions adopted a multifactor ‘‘risk-utility’’ balancing test for design defect cases in lieu of, or in addition, to the consumer expectation test. 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 Construction Co., 445 So.2d 329, 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, 563 N.E.2d 449 (1990);Thibault v. 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 that test in favor of a risk-utility test that focused on the availability of a feasible, safer alternative. Restatement (Third), supra, § 2 (b); id., § 2, comment (g), pp. 27–28. Under the Restatement (Third) of Torts and the various jurisdictions’ risk-utility tests, consumer expectations were a relevant, but not necessarily dispositive, 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 preclude claims that should be valid even in the absence of such proof. Id., 217–18.

Although the court in Potter maintained its allegiance 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, the court pointed to the problem of complex products for which a consumer might not have informed safety expectations. Id., 219. The court was concerned, however, with shifting the focus to the conduct of the manufacturer and in turn abandoning strict liability. Id., 221–22. Accordingly, the court decided to adopt a test that would incorporate risk-utility factors into the ordinary consumer framework. Id., 220–21. Under the ‘‘modified’’ consumer expectation test, the jury would weigh the product’s risks and utility and then inquire, in light of 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 § 402A of the Restatement (Second) and then provided a nonexclusive list of factors that could be used to determine what an ordinary consumer would 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.’’ (Citation omitted; internal quotation marks omitted.) 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 the product failed to meet the consumer’s expectations. 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 Connecticut design defect jurisprudence was not well developed. Indeed, as the present case illustrates, because actions under our liability act often have been brought in federal court, this court has had limited opportunities to do so. Subsequent case law and commentary has indicated 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) (rejecting defendant’s argument that, 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 (treating modified test as standard for complex 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 to malfunction theory). The present caseis aparadigmatic example of the confusion left in Potter’s wake. The defendant contends that, under Potter, only the ordinary consumer expectation test applies to the present case because the modified test is limited to complex designs 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 opportunity since Potter to address squarely our design 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 consumer expectation test because the modified consumer 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 exposure to carcinogens, but in the absence of evidence of adulteration or contamination?’’ As we have explained in part I of this opinion, § 402A of the Restatement (Second) is the governing standard for both tests and the definition incomment (i) of unreason-ably 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 of the certified question, we may reformulate a question 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. Reynolds Tobacco Co., supra, 731 F.3d 169. Accordingly, it is proper for us to consider the scope and 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 modified consumer expectation test is our primary test. 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, that could support each of the following interpretations 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 products that fail to meet minimum safety expectations; 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 most obvious misfit for the ordinary consumer expectation test. Potter involved pneumatic hand tools alleged to be defective because they exposed users to excessive vibration, which in turn caused permanent vascular and 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 risk-utility balancing required by our modified consumer expectation test when the particular facts do not reasonably permit the inference that the product did not meet the safety expectations of the ordinary 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 the modified consumer expectation test we have articulated 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 n2 (Berdon, J, concur ring) (criticizing majority for failure to provide such guidance); D. Fisher, supra, 84 Conn. B.J. 333 (‘‘it would be helpful to provide guidance as to how the court decides 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., Mikolajczyk v.Ford Motor Co., 231 Ill.2d 516, 528–41, 901 N.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 to the application of the risk-utility test. That is, we must decide whether a product which is deemed ‘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 ‘‘that the consumer expectations test is improper whenever . . . 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 ...


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