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Bifolck v. Philip Morris Inc.

Supreme Court of Connecticut

December 29, 2016

VINCENT BIFOLCK, EXECUTOR (ESTATE OFJEANETTE D. BIFOLCK), ET AL.
v.
PHILIP MORRIS, INC.

          Argued September 13, 2016

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

          John 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 appellee (defendant).

          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.

          Daniel 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.

          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.

          John 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 curiae.

          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.

          Larry A. Tawwater, Alinor Sterling and Jeffrey R. White filed a brief for the American Association for Justice as amicus curiae.

          Michael G. Rigg filed a brief for Aaron D. Twerski et al. as amici curiae.

          Rogers, C. J., and Zarella, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.

          OPINION

          McDONALD, J.

         This 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)[1]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.[2] 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).

         In the 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).

         For the 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 questions ‘‘No.''

         I

         BACKGROUND OF THE PRESENT CASE

         The 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.

         One 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.[3]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.

         After 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.

         The 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.

         After 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.'' Id.

         The 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, concurring).

         Although 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.

         In 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;[4] 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.

         II

         WHETHER TO ABANDON THE RESTATEMENT (SECOND) IN FAVOR OF THE RESTATEMENT (THIRD) FOR DESIGN DEFECT CLAIMS[5]

         We 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).

         A

         Parties' Positions

         The 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.

         B

         Current Standard under Our Law[6]

         Prior to 1965, plaintiffs in Connecticut relied on theories of negligence and breach of warranty in actions to recovery for injuries caused by defective products.[7] 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 . . . .''[8] 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).

         Originally, 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 (1975).

         In 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.

         The 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.

         Whereas 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., 194, 202-203.

         In sum, 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.

         C

         Standard under the Restatement (Third)

         Unlike § 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 ...


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