VINCENT BIFOLCK, EXECUTOR (ESTATE OFJEANETTE D. BIFOLCK), ET AL.
PHILIP MORRIS, INC.
September 13, 2016
S. Golub, with whom were Jonathan M. Levine and, on the
brief, Marilyn J. Ramos, for the appellants (plaintiffs).
C. Massaro, with whom were Francis H. Morrison III and, on
the brief, Anthony J. Franze, pro hac vice, John B. Daukas,
pro hac vice, John M. Tanksi and Michael K. Murray, for the
Jonathan M. Hoffman, pro hac vice, Cristin E. Shee-han and
Kaelah M. Smith filed a brief for the Product Liability
Advisory Council, Inc., as amicus curiae.
S. Rawner and Kenneth J. Parsigian, pro hac vice, filed a
brief for the Chamber of Commerce of the United States of
America as amicus curiae.
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.
J. Robinson and Cullen W. Guilmartin filed a brief for the
Connecticut Defense Lawyers Association as amicus curiae.
Randall L. Goodden filed a brief for the International
Product Safety and Liability Prevention Association as amicus
Jennifer M. DelMonico, Proloy K. Das, Eric B. Miller and
Terence J. Brunau filed a brief for the Connecticut Business
and Industry Association et al. as amici curiae.
Brenden P. Leydon filed a brief for the Connecticut Trial
Lawyers Association as amicus curiae.
A. Tawwater, Alinor Sterling and Jeffrey R. White filed a
brief for the American Association for Justice as amicus
Michael G. Rigg filed a brief for Aaron D. Twerski et al. as
Rogers, C. J., and Zarella, Eveleigh, McDonald, Espinosa,
Robinson and Vertefeuille, Js.
case is the second of two diversity actions in which the
federal courts certified questions for this court's
advice regarding the viability of an action under
Connecticut's Product Liability Act (act)alleging that a
cigarette's design had increased consumers' risk of
cancer. The courts sought advice whether specific theories
advanced in those actions are precluded by this court's
adoption of § 402A of the Restatement (Second) of Torts,
which imposes liability for defective products that are
‘‘unreasonably dangerous, '' and more
particularly, our adoption of comment (i) to § 402A,
which defines that term in relation to consumers'
knowledge of the danger. In the first of these actions, this
court advised that the strict liability theory advanced was
not precluded because it required application of our modified
consumer expectation test, under which the obviousness of the
danger is only one of many factors that the trier of fact may
consider. Izzarelli v. R.J. Reynolds Tobacco
Co., 321 Conn. 172, 177, 136 A.3d 1232 (2016).
present action, this court considers three substantive
questions: (1) whether, for claims alleging design defects,
we should abandon our dual tests based on § 402A of the
Restatement (Second) of Torts and adopt the standards under
the Restatement (Third) of Torts, Products Liability; (2) if
not, whether § 402A and comment (i) provide a single,
unitary definition for all theories under which product
liability claims may be brought, including negligence; and
(3) whether the punitive damages available in the act are
limited to litigation costs under our common-law punitive
damages rule. This court raised the first question; we
accepted certification with respect to the second and third
questions, pursuant to General Statutes § 51-199b (d),
from the United States District Court for the District of
Connecticut. See Bifolck v. Philip Morris,
Inc., Docket No. 3:06cv1768 (SRU), 2014 WL 585325 (D.
Conn. February 14, 2014).
reasons that follow, we decline at this time to adopt the
Restatement (Third). Nonetheless, we are persuaded that
modest refinements to our product liability tests under the
Restatement (Second) will clarify the plaintiff's burden
of proof in strict liability cases and provide a better guide
to any necessity for adopting the Restatement (Third) or any
other substantive change. We further conclude that, although
all product liability claims require proof of a
‘‘defective condition unreasonably
dangerous'' to the user or consumer, unreasonably
dangerous is not determined by consumer expectations under
comment (i) to § 402A when such a claim may be brought
under a theory of negligence. Finally, we conclude that
punitive damages under the act are not limited by the
common-law rule. Accordingly, we answer both of the certified
OF THE PRESENT CASE
following facts and procedural history gave rise to the
issues presently before us. The plaintiff, Vincent Bifolck,
individually and as executor of the estate of his wife,
Jeanette D. Bifolck (decedent), commenced this action in the
District Court against the defendant, Philip Morris, Inc.,
after the decedent succumbed to lung cancer at the age of
forty-two. The principal thrust of the complaint is that the
Marlboro and Marlboro Light cigarettes manufactured by the
defendant and smoked by the decedent were defectively
designed and that this defective design was responsible for
her lung cancer and death from that disease. The plaintiff
sought compensatory damages, as well as statutory punitive
damages under General Statutes § 52-240b.
count of the complaint asserted a product liability claim
under the act, but set forth separate allegations in support
of theories of strict liability and negligence.With respect to
strict liability, the plaintiff alleged that the
defendant's cigarettes were defective and unreasonably
dangerous in that their design rendered the cigarettes
unnecessarily addictive and unnecessarily carcinogenic.
Specifically, the plaintiff alleged that the defendant had
(1) added ingredients, including carcinogenic ingredients,
that altered the natural form of the tobacco in the
cigarettes, and (2) utilized manufacturing processes that
affected the composition and form of the tobacco and
nicotine, as well as the manner in which the cigarette smoke
was transmitted to the smoker. With respect to negligence,
the plaintiff alleged that the defendant had failed to
conform to the applicable standard of care by knowingly
designing the cigarettes in a manner that enhanced their
addictive and cancer causing nature and by failing to take
available measures to reduce the cigarettes' addictive,
toxic, and cancer causing ingredients/properties.
the plaintiff commenced the present action, judgment was
rendered in the District Court in another action against a
different cigarette manufacturer on the basis of similar
allegations of strict liability and negligence. See
Izzarelli v. R.J. Reynolds Tobacco Co., 806
F.Supp.2d 516, 519-20 (D. Conn. 2011). Following the appeal
by the defendant, R.J. Reynolds Tobacco Company, from that
judgment to the United States Court of Appeals for the Second
Circuit, that court certified the following question to this
court: ‘‘Does [comment (i)] to § 402A of the
Restatement (Second) of Torts 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?'' (Emphasis added.)
Izzarelli v. R.J. Reynolds Tobacco Co., 731
F.3d 164, 169 (2d Cir. 2013). A particular focus of that
question related to an example in comment (i) providing that
‘‘good tobacco'' is not unreasonably
dangerous. See footnote 2 of this opinion.
trial in the present case was postponed to await this
court's response to that question. In the intervening
period, the District Court certified two additional questions
to this court for advice: (1) ‘‘Does [§]
402A of the Restatement (Second) of Torts (and comment [i] to
that provision) apply to a product liability claim for
negligence under [the act]?''; and (2)
‘‘Does Connecticut's [common-law] rule of
punitive damages as articulated in Waterbury Petroleum
Products, Inc. v. Canaan Oil & Fuel Co.,
193 Conn. 208');">193 Conn. 208 [477 A.2d 988] (1984), apply to an award of
statutory punitive damages pursuant to [General Statutes]
§ 52-240b, the punitive damages provision of the
[act]?'' Bifolck v. Philip Morris,
Inc., supra, 2014 WL 585325, *8.
oral argument to this court on both cases, we issued our
decision in Izzarelli, in which we advised that
comment (i) to § 402A did not preclude the strict
liability theory advanced. Izzarelli v. R.J.
Reynolds Tobacco Co., supra, 321 Conn. 177. We clarified
that, although the two tests available under our law-the
ordinary consumer expectation test and the modified consumer
expectation test-both apply § 402A's unreasonably
dangerous standard, ‘‘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 multi factor modified consumer expectation test, we
answer the certified question in the negative.''
jury in Izzarelli had been instructed on both strict
liability tests and rendered a general verdict in favor of
the plaintiff. Id., 182 Neither party had advocated
for application of any test other than one of the two tests
based on the Restatement (Second) recognized by this court
Id., 192 n11 Nonetheless, a concurring opinion took the
position that we should adopt and apply to the certified
question in that case the standard for design defects under
the Restatement (Third) Id., 211 (Zarella, J,
that position did not garner majority support in that case,
the posture of the present case is more conducive to
consideration of this issue. Unlike Izzarelli, this
case has not yet proceeded to trial. Accordingly, the issue
raised by the Izzarelli concurrence can be
considered with the benefit of supplemental briefing, but
without the possibility of disturbing a presumptively valid
verdict under the existing standards in the absence of a
challenge to those standards.
light of these considerations, we issued an order to the
parties in the present case, concurrently with the issuance
of our decision in Izzarelli, seeking supplemental
briefs on the following questions: (1) whether, for product
liability actions premised on design defects, this court
should abandon the ordinary consumer expectation
test/modified consumer expectation test and adopt
§§ 1, 2 (b) and 4 of the Restatement (Third), with
or without the associated commentary; and (2) if so, whether there
is any reason why this court should not apply the Restatement
(Third) standard to cases pending before a trial court, like
the present case. We also invited professional organizations
to submit amicus briefs on the first question. Pursuant to
the parties' joint request, the court heard oral argument
on these questions.
TO ABANDON THE RESTATEMENT (SECOND) IN FAVOR OF THE
RESTATEMENT (THIRD) FOR DESIGN DEFECT CLAIMS
begin with the question that this court raised because its
answer could be dispositive of the first certified question
regarding whether consumer expectations under comment (i) to
§ 402A govern recovery for a defective design under a
theory of negligence. See Restatement (Third), supra, §
2, comment (g), pp. 27-28 (explaining that
‘‘consumer expectations do not constitute an
independent standard for judging the defec-tiveness of
product designs'' and that such expectations are
‘‘relevant'' but not controlling).
parties and the amici supporting their respective positions
take sharply divergent views on every consideration relevant
to this issue. The plaintiff urges us not to abandon our dual
Restatement (Second) tests, characterizing the Restatement
(Third) as a significant departure from our long-standing
strict liability standard and the public policies that this
standard advances. Conversely, the defendant urges us to
adopt the Restatement (Third), characterizing it as
consistent with our case law, our act, and litigation
practice. To the extent that both parties acknowledge that
the Restatement (Third) will make some change to our product
liability law, they point to different effects of those
changes. The plaintiff contends that these changes will have
a detrimental, unfair effect on injured consumers, whereas
the defendant contends that these changes will provide
greater clarity and objectivity without such effects. The
plaintiff contends that the task of weighing the numerous
policy considerations implicated is better left to the
legislature, whereas the defendant contends that the issue
should be resolved by this court.
Standard under Our Law
to 1965, plaintiffs in Connecticut relied on theories of
negligence and breach of warranty in actions to recovery for
injuries caused by defective products. In 1965,
Connecticut adopted the strict liability standard for product
liability actions under § 402A of the Restatement
(Second), under which a plaintiff need not establish the
manufacturer's fault. See Garthwait v.
Burgio, 153 Conn. 284, 289-90, 216 A.2d 189 (1965);
2 Restatement (Second), Torts, § 402A, comment (a), p.
348 (1965) (product seller is ‘‘subject to
liability to the user or consumer even though he has
exercised all possible care in the preparation and sale of
the product''). Under that standard, a manufacturer
or seller of a product may be held liable if the product is
‘‘unreasonably dangerous . . .
.'' 2 Restatement (Second), supra, § 402A
(1), p. 347. A primary justification for imposing strict
liability has been that, as between the injured consumer and
the manufacturer who has derived the economic benefits from
the sale of the product, the latter is better able to insure
against the risk and can pass that cost along to all
consumers. See Potter v. Chicago Pneumatic Tool Co.,
241 Conn. 199, 209, 694 A.2d 1319 (1997).
this court defined unreasonably dangerous solely by reference
to consumer expectations as set forth in comment (i)-the
ordinary consumer expectation test. See id., 214-15
(‘‘[T]he article sold must be dangerous to an
extent beyond that which would be contemplated by the
ordinary consumer . . . with the ordinary knowledge common to
the community as to its characteristics. 2 Restatement
[Second], supra, § 402A, comment [i].''
[Internal quotation marks omitted.]); see also Giglio
v. Connecticut Light & Power Co., 180 Conn.
230, 234, 429 A.2d 486 (1980); Slepski v.
Williams Ford, Inc., 170 Conn. 18, 23, 364 A.2d 175
1997, this court rejected the argument that, for design
defects, we should adopt the standard in the draft
Restatement (Third), requiring proof of a reasonable
alternative design, instead of § 402A's unreasonably
dangerous standard. See Potter v. Chicago
Pneumatic Tool Co., supra, 241 Conn. 215. In
Potter, the court acknowledged a concern expressed
by one court that design defects lacked an objective standard
by which they may be proved, whereas manufacturing defects
could be objectively evaluated against the intended design of
the product. Id., 211, citing Caterpillar
Tractor Co. v. Beck, 593 P.2d 871, 880
(Alaska 1979). Nonetheless, the court declined to adopt the
alternative design requirement, noting that the majority of
jurisdictions had not imposed such an absolute requirement.
Potter v. Chicago Pneumatic Tool Co.,
supra, 216. More fundamentally, the court rejected this
requirement because it ‘‘imposes an undue burden
on plaintiffs that might preclude otherwise valid claims from
jury consideration.'' Id., 217. The court
posited that the rule would require expert witnesses, even
when the jury could infer a design defect from circumstantial
evidence, in contravention to our case law. Id.,
217-18. It also posited that a product could be unreasonably
dangerous to the consumer even when there is no alternative,
safer design. Id., 219.
court's review of the various tests adopted by other
jurisdictions convinced it, however, that our singularly
focused consumer expectation test might also preclude some
valid claims. Id. Therefore, instead of imposing a
more stringent standard of proof, the court established an
alternative means of proving that a design defect is
unreasonably dangerous-the modified consumer expectation
test. Id., 220. Under this test, a product is
unreasonably dangerous if a reasonable, informed consumer
would conclude that its risks outweigh its utility.
Id., 220-21. This is a multi factor test, under
which no single factor is per se determinative. See
id., 221 n.15 (citing nonexclusive list of factors,
including ‘‘the usefulness of the product, the
likelihood and severity of the danger posed by the design,
the feasibility of an alternative design, the financial cost
of an improved design, the ability to reduce the
product's danger without impairing its usefulness or
making it too expensive, and the feasibility of spreading the
loss by increasing the product's price or by purchasing
insurance'' [internal quotation marks omitted]).
Evidence that an alternative design was available that would
have reduced or avoided the danger may be proffered, but it
is not a mandatory element of the plaintiff's case.
Id., 221. The court emphasized in adopting this test
that it maintained its allegiance to a strict liability
regime that focuses on the product's danger and not the
manufacturer's culpability. Id., 221-22.
Potter established dual tests to prove that a design
defect is unreasonably dangerous, our recent decision in
Izzarelli clarified the circumstances under which
each test applies. See Izzarelli v. R.J.
Reynolds Tobacco Co., supra, 321 Conn. 192, 202-203. The
modified consumer expectation test is our primary test.
Id., 194. The ordinary consumer expectation test is
reserved for those cases in which the product failed to meet
consumers' legitimate, commonly accepted,
minimum safety expectations. Id., 202-203.
The defect in such cases is so obvious that expert testimony
is not needed to establish it and the utility of the product
is not an excuse for the undisclosed defect. Id.,
under either test, § 402A provides the elements of a
strict product liability claim; see footnote 8 of this
opinion; but the unreasonably dangerous element is determined
by minimum safety expectations in one and by balancing risks
and utility in the other. Izzarelli v. R.J.
Reynolds Tobacco Co., supra, 321 Conn. 193, 208-209.
under the Restatement (Third)
§ 402A's ‘‘unreasonably
dangerous'' standard, which applies to any type of
product defect, § 2 of the Restatement (Third)
prescribes different standards for each of the three
categories of product defects-design defects, manufacturing
defects and defects due to inadequate instructions/warnings.
A product ‘‘is defective in design when the
foreseeable risks of harm posed by the product could have
been reduced or avoided by the adoption of a reasonable
alternative design by the seller or other distributor, or a
predecessor in the commercial chain of ...