United States District Court, D. Connecticut
ORDER ON PUNITIVE DAMAGES
R. UNDERHILL STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE
case is before me on remand for a recalculation of punitive
damages, pursuant to a mandate from the Second Circuit.
See Mandate, Doc. No. 502. For the reasons that
follow, I award Barbara Izzarelli $8, 000, 000 in punitive
damages. In addition, Izzarelli is entitled to
offer-of-judgment interest up to the date an amended judgment
Izzarelli initiated this products liability case in December
1999 against the manufacturer of Salem King cigarettes, R.J.
Reynolds Tobacco Co. (“Reynolds”). She had been
smoking Salem Kings for over twenty-five years and was
treated for larynx cancer in 1997. Izzarelli filed an Amended
Complaint in August 2000 alleging that Reynolds designed and
manufactured its cigarettes with heightened addictive
properties that delivered more carcinogens than necessary.
See Doc. Entry No. 34. The case was originally
assigned to District Judge Alan H. Nevas. The parties engaged
in minor discovery motions practice in the early stages of
the case, and on June 4, 2001, Izzarelli filed an Offer of
Judgment for $400, 000, which was ultimately rejected by
Reynolds. See Doc. Entry No. 47. In July 2002, the
discovery deadline was held open until 60 days after the
Connecticut Supreme Court's ruling in a companion case,
Gerrity v. R.J. Reynolds. Doc. Entry No. 56. The
Connecticut Supreme Court issued its ruling on April 15,
2003. Gerrity v. R.J. Reynolds, 263 Conn. 120
(2003). Throughout the next five years, the parties jointly
filed fourteen Motions for Extension of Time, seeking to
extend the fact and expert discovery deadlines and the
dispositive motions deadline, all of which were granted.
See Doc. Nos. 58, 83, 84, 94, 96, 109, 111, 127-2,
135, 138, 142, 149, 151, 153, 157, 195, 202.
case was reassigned to me in February 2009. Doc. No. 219.
Shortly thereafter, I held a status conference and set June
1, 2009 as the dispositive motions deadline and scheduled
jury selection and trial for November 2009. Doc. No. 221. The
dispositive motions deadline was then briefly extended and on
June 15, 2009, Reynolds filed its Motion for Summary
Judgment. Doc. Nos. 224, 226. After four Motions for
Extension of Time and one Motion for Leave to File Excess
Pages, Izzarelli filed her opposition to the Motion for
Summary Judgment on October 30, 2009. See Doc. Nos.
229, 231, 234, 237, 239, 244. After two Motions for Extension
of Time, Reynolds filed its reply on December 21, 2009.
See Doc. Nos. 248, 254, 258. I held hearings on
January 8 and 14, 2010 and denied in part and granted in part
the Motion for Summary Judgment. Doc. Nos. 265, 267. The
parties filed a stipulation regarding Izzarelli's Motion
to Amend/Correct the Complaint, and Izzarelli filed her
Amended Complaint on January 4, 2010. Doc. Nos. 251, 259,
262. Reynolds filed its Answer and a Supplemental Motion for
Summary Judgment on January 20, 2010. Doc. Nos. 270, 271. I
held a hearing on March 5, 2010 and granted in part and
denied in part the Supplemental Motion for Summary Judgment.
Doc. No. 298. In preparation for the coming trial, both
Izzarelli and Reynolds filed many pretrial Motions in Limine
in March and April 2010. See Doc. Nos. 302, 303,
304, 305, 306, 307, 308, 309, 310, 312, 314, 316, 322, 331,
339, 343, and 344. I held hearings on all pending motions on
April 8 and 15, 2010. Doc. No. 350. Thereafter, jury
selection was held on April 27, 2010 and trial began on April
28, 2010. Doc. Nos. 360, 362.
26, 2010, after fifteen days of trial, the jury returned a
verdict in Izzarelli's favor, finding that Reynolds was
liable for her injuries under the theories of strict
liability and negligent design. Verdict, Doc. No. 429. The
jury awarded Izzarelli $325, 000 in economic damages and $13,
600, 000 in non-economic damages for a total compensatory
damages award of $13, 925, 000. Id. After the
verdict, however, the parties stipulated that Izzarelli's
economic damages should have only been $162, 500;
see Stipulation, Doc. No. 458; which reduced
Izzarelli's compensatory damages to $13, 762, 500. In its
verdict, the jury also allocated 42% fault to Izzarelli,
which reduced her total compensatory damages award to $7,
982, 250. See Judgment, Doc. No. 474.
addition, the jury found that Izzarelli had proven by a
preponderance of the evidence that Reynolds should pay
punitive damages. Verdict, Doc. No. 429. On December 21,
2010, I issued an order awarding punitive damages in the
amount of $3, 970, 289.87, which represented $3, 547, 666.67
in attorneys' fees and $422, 623.20 in non-taxable costs.
Order, Doc. No. 470 at 17. Accordingly, Izzarelli's total
damages award, including economic, non-economic, and
punitive, was $11, 952, 539.87. Id. Thereafter,
Izzarelli moved for an award of offer-of-judgment interest
pursuant to Conn. Gen. Stat. § 52-192a. See Doc.
No. 471. On March 2, 2011, I issued an order awarding
Izzarelli $16, 127, 086.40 in offer-of-judgment
interest. See Order, Doc. No. 487.
Accordingly, Izzarelli's total judgment, including
economic damages, non-economic damages, punitive damages, and
offer-of-judgment interest, was $28, 079, 626.27. Amended
Judgment, Doc. No. 489.
moved for a new trial and/or for judgment as a matter of law
(see Doc. No. 482), and moved for reconsideration of
the offer-of-judgment interest award (see Doc. No.
490). All three motions were denied. See Orders,
Doc. Nos. 491, 497. Thereafter, Reynolds filed an appeal with
the Second Circuit and Izzarelli filed a cross-appeal.
See Notice of Appeal, Doc. No. 498; Notice of
Cross-Appeal, Doc. No. 499. The Court of Appeals certified
questions to the Connecticut Supreme Court. See Izzarelli
v. R.J. Reynolds Tobacco Co., 321 Conn. 172 (2016). On
July 7, 2017, the Second Circuit issued a Summary Order in
which it affirmed the judgment with respect to liability, but
vacated and remanded the judgment for a redetermination of
punitive damages in light of the Connecticut Supreme
Court's holding in Bifolck v. Philip Morris,
Inc., 324 Conn. 402 (2016). Summary Order, Doc. No. 501
at 10. Reynolds sought certification to the United States
Supreme Court, which the Court denied. R.J. Reynolds
Tobacco Co. v. Izzarelli, 138 S.Ct. 1165 (2018). I
ordered the parties to submit supplemental briefing on the
issue of punitive damages and held a hearing on June 21,
2018. See Order, Doc. No. 506; Minute Entry, Doc.
No. 522. At the hearing, I took the parties' submissions
and arguments under advisement.
Relevant Legal Principles
punitive damages analysis here is governed by the Connecticut
Supreme Court's decision in Bifolck, a case
similar to Izzarelli, in which the plaintiff sued
another cigarette manufacturer, Philip Morris, Inc., on
behalf of his deceased wife's estate for her death from
lung cancer. Bifolck, 324 Conn. 402. In that case, I
certified the following question regarding punitive damages:
“Does Connecticut's [common-law] rule of punitive
damages, as articulated in Waterbury Petroleum Products,
Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208 (1984),
apply to an award of statutory punitive damages pursuant to
[Conn. Gen. Stat.] § 52-240b, the punitive damages
provision of the [Connecticut Products Liability Act]?”
Id. at 410. The Connecticut Supreme Court in
Waterbury Petroleum determined that punitive damages
should be limited to “the costs of litigation less
taxable costs” which it opined would “fulfill the
salutary purpose of fully compensating a victim for the harm
inflicted on him while avoiding the potential for injustice
which may result from the exercise of unfettered discretion
by a jury.” 193 Conn. at 236-38.
Connecticut Products Liability Act (“CPLA”)
provides: “Punitive damages may be awarded if the
claimant proves that the harm suffered was the result of the
product seller's reckless disregard for the safety of
product users, consumers or others who were injured by the
product. If the trier of fact determines that punitive
damages should be awarded, the court shall determine the
amount of such damages not to exceed an amount equal to twice
the damages awarded to the plaintiff.” Conn. Gen. Stat.
§ 52-240b. The Bifolck Court concluded that
under the CPLA, punitive damages were not limited to the
common-law rule of litigation expenses less taxable costs.
Bifolck, 234 Conn. at 447. The Court opined that the
common-law rule and the statutory provision were inconsistent
in many respects, but that “statutory punitive damages
are awarded on the basis of the same conduct that would
justify an award of common-law punitive damages-reckless
disregard of another's rights.” Id. at
449. The Court also determined that the two methods were
similar in that they both guarded against excessive punitive
damage awards. Id. at 449-50 (common-law rule
adopted to limit “the exercise of the jury's
discretion by tying [punitive] damages to litigation
expenses” and, with respect to the statute, “by
vesting the court with authority to determine the amount of
punitive damages and by limiting the amount of those damages
in the act, the legislature provided an alternative method of
reining in excessive punitive damages”). The Court
determined that the two methods differed, though, because
“statutory damages are measured in relation to a
multiple of compensatory damages, not litigation
expenses” and “the statute vests the court with
exclusive authority to determine the amount of damages,
whereas the trier of fact traditionally had determined the
amount of common-law punitive damages.” Id.
Further, the Bifolck Court reasoned that if it
construe[d] the act to equate the statutory punitive damages
to litigation expenses, in some cases the statute would have
no effect or frustrate the purpose of the common-law rule. In
any case in which litigation expenses are less than two times
the damages, the statute would have no impact whatsoever, as
the common-law recovery would already have been available. In
any case in which the plaintiff's compensatory damages
are relatively low in comparison to his or her litigation
costs, the cap limiting punitive damages to twice
compensatory damages would frustrate the purpose of
common-law damages-fully compensating a victim for the harm
inflicted on him. . . . This disparity would not be uncommon
given the statutory reduction of compensatory damages in
relation to comparative responsibility.
Id. at 451-52 (citations omitted; internal quotation
Bifolck Court also took into consideration the award
of attorneys' fees in relation to punitive damages in
determining whether the common-law approach applied.
Id. at 452. A different section of the CPLA
provides: “If the court determines that the claim or
defense is frivolous, the court may award reasonable
attorney's fees to the prevailing party in a products
liability action.” Conn. Gen. Stat. § 52-240a.
“When an award of attorney's fees pursuant to
§ 52-240a and an award of punitive damages pursuant to
§ 52-240b are both applicable, the combined effect of
such awards would be substantially similar to [Conn. Gen.
Stat. § 35-53, that we] interpreted to have punitive
damages not limited by the common-law rule.”
Bifolck, 324 Conn. at 452. “If punitive
damages in § 52-240b were interpreted to mean common-law
punitive damages, then both §§ 52-240a and 52-240b
would provide for attorney's fees, but under different
contexts.” Id. at 453. The Court identified
“several concerns” that arose from that
construction: (1) “attorney's fees under §
52-240a are not capped, as are punitive damages in §
52-240b”; and (2) “in cases in which a prevailing
plaintiff has established both reckless disregard of safety
and frivolous litigation conduct, the defendant would not be
penalized for one of those wrongful acts.” Id.
the Supreme Court determined that the common-law rule of
punitive damages did not apply to products liability cases,
it did not set out the correct method of calculating punitive
damages. It has in the past, however, addressed the same
question with respect to punitive damages claims under the
Connecticut Unfair Trade Practices Act (“CUTPA”).
Ulbrich v. Groth, 310 Conn. 375 (2013). There, the
Court held, like in Bifolck, that the common-law
rule of calculating punitive damages was not applicable to
CUTPA claims. Id. at 449. The Court's reasoning
in Ulbrich was substantially similar to that in
Bifolck, namely that following the common-law rule
would be duplicative, because CUTPA already provided for
attorneys' fees in another statutory
section. Id. at 452. Having determined
that the common-law computation of damages was inapplicable,
the Court considered the relevant factors laid out by the
United States Supreme Court in Exxon Shipping v.
Baker, 554 U.S. 471 (2008), in determining punitive
damages. Ulbrich, 310 Conn. at 452. The
Exxon factors include: (1)“the degrees of
relative blameworthiness, i.e., whether the defendant's
conduct was reckless, intentional or malicious”; (2)
“whether the defendant's [a]ction [was] taken or
omitted in order to augment profit”; (3) “whether
the wrongdoing was hard to detect”; (4) “whether
the injury and compensatory damages were small, providing a
low incentive to bring the action”; and (5)
“whether the award will deter the defendant and others
from similar conduct, without financially destroying the
defendant.” Id. at 454 (citing Exxon
Shipping, 554 U.S. at 493-94, 503-04) (internal
quotation marks omitted).
the Ulbrich Court noted that a punitive damages
award must also comport with due process. Id. at
455. The United States Supreme Court laid out the following
relevant factors to consider in answering that question:
“ the degree of reprehensibility of the
defendant's misconduct;  the disparity between the
actual or potential harm suffered by the plaintiff and the
punitive damages award; [and 3] the difference between the
punitive damages awarded … and the civil penalties
authorized or imposed in comparable cases.” State
Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S.
408, 418 (2003). Among those factors, “the
reprehensibility of a defendant's conduct is the most
important[.]” Ulbrich, 310 Conn. at 455.
“Reprehensibility is determined by ‘considering
whether: the harm caused was physical as opposed to economic;
the tortious conduct evinced an indifference to or a reckless
disregard of the health or safety of others; the target of
the conduct had financial vulnerability; the conduct involved
repeated actions or was an isolated incident; and the harm
was the result of intentional malice, trickery, or deceit, or
mere accident.'” Id. at 455-56 (citing
State Farm, 538 U.S. at 419).
State Farm, the Supreme Court refused to adopt a
bright-line ratio between punitive and compensatory damages
but posited that “few awards exceeding a single-digit
ratio … will satisfy due process.” State
Farm, 538 U.S. at 425. The Court further opined that
“[s]ingle-digit multipliers are more likely to comport
with due process, while still achieving the State's goals
of deterrence and retribution[.]” Id. The
Court tempered that opinion, though, in stating “ratios
greater than those we have previously upheld may comport with
due process where a particularly egregious act has resulted
in only a small amount of economic damages … however[,
w]hen compensatory damages are substantial, then a lesser
ratio, perhaps only equal to compensatory damages, can reach
the outermost limit of the due process guarantee.”
Id. (citations omitted) (internal quotation marks
Izzarelli seeks the maximum punitive damages award permitted
by statute, two times the amount of compensatory damages,
totaling $15, 964, 500. Mot. for Punitive Damages, Doc. No.
514 at 40. As support, Izzarelli argues that Reynolds'
conduct was particularly reprehensible and Izzarelli's
injuries were sufficiently serious to warrant a maximum
award. See Id. Reynolds argues that a nominal
punitive damages award would be sufficient because Izzarelli
is already receiving sufficient damages that are punitive in
nature, including non-economic compensatory damages and
offer-of-judgment interest. Reynolds' Brief, Doc. No. 515
at 1, 6. Reynolds argues that any additional punitive damages
award would violate due process. Id. at 6.
Alternatively, Reynolds argues that, at most, a 1:1 ratio
with compensatory damages would be appropriate. Id.
light of the evidence at trial regarding Reynolds'
decades-long conduct and the harm suffered by Izzarelli, a
substantial punitive damages award is appropriate. I do not
agree with Izzarelli, however, that she should be awarded the
maximum award allowable under the CPLA. For the reasons that
follow, I award Izzarelli $8, 000, 000 in punitive damages.
ruling on Reynolds' Motion for a New Trial and Renewed
Motion for Judgment as a Matter of Law, I noted that the jury
could have found the following facts regarding
Izzarelli began smoking when she was a young teenager and she
chose Salem Kings[.] Izzarelli quickly became a
heavily-addicted smoker who smoked daily two to three packs
of Salem Kings. In 1996, at age 36 and after smoking daily
for over 25 years, Izzarelli was diagnosed with stage T-3
squamous cell cancer of the larynx. She underwent surgery to
remove her larynx, create an opening in her windpipe called a
stoma, and position a laryngectomy tube. After surgery,
Izzarelli received radiation treatment. Izzarelli is
cancer-free, but continues to have difficulties with the
stoma and the laryngectomy tube. She quit smoking in January
Although it is uncommon for a woman in her 30s to develop
laryngeal cancer, laryngeal cancer caused by smoking is
dose-related; the more a person smokes, the greater the
likelihood of developing the condition. Izzarelli smoked 2 to
3 packs a day for 25 years; the equivalent of smoking a pack
a day for 30 to 50 years. Smoking is attributed as the cause
of 95% of cancers of the larynx, with the other 5% attributed
to toxic exposure. A person with a pack-a-day history similar
to Izzarelli's has between a 6.9 and 20 times greater
chance of developing laryngeal cancer than one who does not
smoke. The heightened addictive properties of Salem Kings and
the heightened ...