Izzarelli v. R.J. Reynolds Tobacco Co., No. 11-3865 (2d Cir. 2013)
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Plaintiff filed suit against R.J. Reynolds under the Connecticut Products Liability Act (CPLA), Conn. Gen. Stat. Ann. 52-572m et seq., for strict liability and negligence. Plaintiff claimed that the cigarettes she smoked for 25 years caused cancer in her larynx. On appeal, R.J. Reynolds challenged the denial of its renewed motion for judgment as a matter of law. The court certified the following question to the Connecticut Supreme Court: Does Comment i to section 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 any adulteration or contamination.
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11-3865-cv(L) Izzarelli v. R.J. Reynolds Tobacco Co. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: March 18, 2013 Decided: September 10, 2013) Docket Nos. 11-3865-cv(Lead) 11-3890-cv(XAP) - - - - - - - - - - - - - - - - - - - -x BARBARA A. IZZARELLI, Plaintiff-Appellee-Cross-Appellant, - v.R.J. REYNOLDS TOBACCO COMPANY, Defendant-Appellant-Cross-Appellee. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, CABRANES and WESLEY, Circuit Judges. Barbara Izzarelli sues R.J. Reynolds Tobacco Company 30 under Connecticut state law claiming that the cigarettes she 31 smoked for 25 years were defective and caused her cancer. 32 jury found that the cigarettes were defective, and the 33 United States District Court for the District of Connecticut 34 (Underhill, J.) entered judgment in Izzarelli s favor. 35 Reynolds Tobacco Company appeals the judgment, arguing that 36 Connecticut law forecloses strict products liability suits A R.J. 1 against a cigarette manufacturer absent evidence that the 2 cigarettes were contaminated or adulterated. 3 question of Connecticut law is open and decisive, we certify 4 it to the Connecticut Supreme Court, and stay resolution of 5 this case in the interval. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Because this DAVID S. GOLUB (Jonathan M. Levine, Marilyn J. Ramos, on the brief), Silver Golub & Teitell LLP, Stamford, Connecticut, for Plaintiff-Appellee-CrossAppellant Barbara A. Izzarelli. MARK R. SEIDEN (Todd R. Geremia, David M. Cooper, Jones Day, New York, New York, Theodore M. Grossman, Mark A. Belasic, Jones Day, Cleveland, Ohio, on the brief), Jones Day, New York, New York, for Defendant-AppellantCross-Appellee R.J. Reynolds Tobacco Company. DENNIS JACOBS, Chief Judge: Barbara Izzarelli brings claims against defendant R.J. 26 Reynolds Tobacco Company ( R.J. Reynolds ) under the 27 Connecticut Products Liability Act ( CPLA ), Conn. Gen. 28 Stat. Ann. § 52-572m et seq., for strict liability and 29 negligence, arguing that the cigarettes she smoked for 25 30 years caused cancer in her larynx.1 1 A jury in the United Izzarelli also brought a claim under the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. Ann. § 42-110a et seq., for unlawful youth marketing. The 2 1 States District Court for the District of Connecticut 2 (Underhill, J.) found R.J. Reynolds liable (and 58 percent 3 at fault under Connecticut s comparative negligence scheme), 4 and awarded Izzarelli $7,982,250 in compensatory damages; 5 punitive damages, which the district court calculated as 6 $3,970,289.87; and $16,127,086.40 in offer-of-judgment 7 interest. 8 9 R.J. Reynolds appeals the denial of its renewed motion for judgment as a matter of law, arguing principally that 10 Izzarelli s claims are foreclosed by Connecticut law and the 11 Restatement (Second) of Torts § 402A, as adopted by the 12 Connecticut Supreme Court, Giglio v. Conn. Light & Power 13 Co., 429 A.2d 486, 488 (Conn. 1980), which (R.J. Reynolds 14 argues) precludes strict products liability suits against a 15 seller of good tobacco. 2 16 district court granted R.J. Reynolds s motion for summary judgment on that claim, and Izzarelli does not appeal that decision. 2 The parties also argue issues involving admissibility of evidence and punitive damages. Since we are certifying the principal and threshold legal issue, we need not decide those issues now, and will decide them depending on how the Connecticut Supreme Court decides the certified question. For this reason, we will limit our discussion of the facts to those relevant to the question at issue. 3 1 Because this question is undecided under Connecticut 2 law, we certify it to the Connecticut Supreme Court and stay 3 resolution of this case in the interval. 4 5 BACKGROUND 6 Izzarelli tried cigarettes at age twelve, in 1970. 7 1972, Izzarelli was smoking a pack a day of Salem Kings 8 brand cigarettes ( Salems ), manufactured by R.J. Reynolds. 9 Izzarelli smoked Salems for the next 25 years, at least two By 10 packs a day. In 1996, she was diagnosed with laryngeal 11 cancer. 12 has a voice box and breathes through a tracheotomy hole in 13 her throat. 14 breathing problems, and can eat only soft foods. After a laryngectomy in January 1997, she no longer She has undergone numerous surgeries to fix 15 Dr. Alexander Glassman, a psychiatrist, testified at 16 trial that Izzarelli was severely addicted to nicotine. 17 Other experts retained by Izzarelli testified that her 18 cancer was caused by smoking: Dr. Marshall Posner, 19 Izzarelli s expert on cancer, testified that he was 20 absolutely convinced this cancer was caused by smoking, 21 and that 95 percent of laryngeal cancers are caused by 22 smoking; and Izzarelli s treating otolaryngologist, Dr. 4 1 Thomas Lesnik, testified that her cancer was caused by her 2 smoking. 3 At trial, Izzarelli introduced evidence that R.J. 4 Reynolds manufactured Salems to specifications intended to 5 get non-smokers addicted to nicotine and to get addicted 6 smokers to smoke more cigarettes without satiating their 7 addiction: 8 ¢ 9 R.J. Reynolds understood that it had to accomplish two things to sell more cigarettes: (1) maintain 10 smokers addiction by increasing the nicotine 11 kick felt by the smoker with each drag; and (2) 12 reduce the total nicotine level (the nicotine 13 yield ) in cigarettes to require smokers to 14 purchase more cigarettes to fulfil their 15 addiction s daily requirement. 16 ¢ R.J. Reynolds had discovered certain means to 17 alter the levels of free nicotine in smoke, and 18 thereby increase the nicotine kick by varying 19 blends, additives, filters, and papers. 20 Grunberg testified that R.J. Reynolds used blend 21 formation and denicotinization to alter the 22 amount of free nicotine in Salems. 5 Dr. 1 ¢ R.J. Reynolds could manipulate the nicotine yield, 2 and indeed had lowered it from 2-3 milligrams per 3 cigarette in the 1950s and 1960s to approximately 4 1.3 milligrams per cigarette at the time of trial. 5 One internal document put the question this way: 6 How low can we go? 7 lowest nicotine yield that would keep smokers 8 addicted while requiring them to smoke more 9 cigarettes to feed their addiction. The goal was to identify the Lower yield 10 (to a point) therefore requires more smoking, 11 which increases the likelihood of cancer. 12 R.J. Reynolds elicited testimony that Izzarelli s 13 cancer was not specific to Salems; the opinions of 14 Izzarelli s experts would not change if she smoked a 15 different brand. 16 expert testimony on addiction, stated that all tobacco was 17 addictive, and that nothing in Salems changes their 18 addictive nature. 19 Izzarelli s addiction did not depend on the fact that she 20 smoked Salems; any cigarettes would have had the same 21 effect. 22 know what brand of cigarettes Izzarelli smoked to conclude 23 that smoking caused her cancer. Dr. Neil Grunberg, a psychologist giving Dr. Glassman, too, testified that And Dr. Lesnik testified that he did not need to 6 1 At the close of Izzarelli s case, R.J. Reynolds moved 2 for judgment as a matter of law pursuant to Rule 50 of the 3 Federal Rules of Civil Procedure. 4 reserved ruling on that motion. 5 verdict and judgment was entered in favor of Izzarelli, R.J. 6 Reynolds timely renewed that motion and, in addition, filed 7 a motion for a new trial pursuant to Rule 59 of the Federal 8 Rules of Civil Procedure. 9 motions. The district court After the jury returned its The district court denied both R.J. Reynolds appeals. 10 11 DISCUSSION 12 We review the denial of a motion for judgment as a 13 matter of law de novo, applying the same standards as the 14 district court to determine whether judgment as a matter of 15 law was appropriate. 16 Argenti, 155 F.3d 113, 120 (2d Cir. 1998). 17 matter of law is appropriate if, after reviewing the 18 evidence in the light most favorable to Izzarelli, the 19 nonmovant, there can be but one conclusion as to the 20 verdict that reasonable [jurors] could have reached. 21 Samuels v. Air Transp. Local 504, 992 F.2d 12, 14 (2d Cir. 22 1993) (quotation marks omitted); see also Coffey v. Dobbs 23 Int l Servs., Inc., 170 F.3d 323, 326 (2d Cir. 1999). Merrill Lynch Interfunding, Inc. v. 7 Judgment as a 1 Izzarelli sues under the CPLA, Conn. Gen. Stat. Ann. 2 § 52-572m et seq. 3 defective or hazardous product to bring a claim rooted in 4 negligence, strict liability[,] and warranty, for harm 5 caused by a product. 6 question concerns solely strict liability. 7 prove a strict liability claim under the CPLA, it must be 8 shown that: (1) the defendant was engaged in the business 9 of selling the product; (2) the product was in a defective 10 condition unreasonably dangerous to the consumer or user; 11 (3) the defect caused the injury for which compensation was 12 sought; (4) the defect existed at the time of the sale; and 13 (5) the product was expected to and did reach the consumer 14 without substantial change in condition. 15 Light & Power Co., 429 A.2d 486, 488 (Conn. 1980) (citing 16 Restatement (Second) of Torts § 402A (1965)). 17 purposes of the question presented for certification, the 18 decisive issue is the existence of a defective condition. 19 The CPLA allows a person injured by a Id. § 52-572n(a). The certified In order to Giglio v. Conn. For the The Connecticut rule for strict liability is drawn from 20 section 402A of the Restatement (Second) of Torts. 21 Wagner v. Clark Equip. Co., Inc., 700 A.2d 38, 50 (Conn. 22 1997). Section 402A provides: 8 See id; 1 2 3 4 5 6 7 8 9 10 11 12 (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (Emphasis added). 13 dangerous, excludes the harmful effects of good tobacco : 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 The rule stated in this Section 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. That is not what is meant by unreasonably dangerous in this Section. 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 tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. . . . (Emphasis added). 35 explicitly adopted Comment i s definition of unreasonably 36 dangerous. 37 that Comment i precludes Izzarelli s suit because she has 38 not produced evidence of contamination or adulteration-- 39 something like marijuana. Comment i, which defines unreasonably The Connecticut Supreme Court has Wagner, 700 A.2d at 50. 9 R.J. Reynolds argues 1 The Connecticut Supreme Court has not considered the 2 proviso for good tobacco in Comment i. The only 3 Connecticut case that decided the issue is Estate of DuJack 4 v. Brown & Williamson Tobacco Corp., an oral ruling from the 5 bench. 6 Nov. 13, 2001). 7 smoke Kool cigarettes, that she became addicted to Kool 8 cigarettes at an early age, that this addiction did her 9 harm, and that the cigarette smoking that she did caused her X07-00728225-S, 2001 WL 34133836 (Conn. Super. Ct. The court assumed that [plaintiff] did 10 lung cancer, and the other injuries that resulted from 11 having the lung cancer. 12 dismissed the complaint, relying on Comment i: you cannot 13 make a claim that cigarettes are an unreasonably dangerous 14 or defective product because the nicotine in them causes 15 harm. 16 distinguished a hypothetical case in which a plaintiff 17 alleged that Kool cigarettes have some peculiar 18 manufacturing process with filters or their papers or any 19 additives or any genetic processing that makes Kool 20 cigarettes different than any other cigarette. 21 Id. at *3. Id. at *1. The DuJack court At the same time, the court Id. at *2. It is unclear whether Comment i precludes all products 22 liability claims in Connecticut against tobacco companies 23 absent allegations of contamination or adulteration. 10 When 1 Comment i was adopted in 1965, it was widely known that 2 smoking is dangerous and can be addictive. 3 sense to conclude that a cigarette cannot be unreasonably 4 dangerous when manufactured consistent with industry norms. 5 Izzarelli argues, however, that Comment i specifies good 6 tobacco as opposed to good cigarettes, and therefore does 7 not bear upon the manufacturing process; that a cigarette is 8 a nicotine delivery device that can change how tobacco is 9 smoked and its effect on the smoker; and that R.J. Reynolds So it makes 10 varied the blends and components to make Salems more 11 addictive, and varied the nicotine levels to maximize the 12 number of cigarettes needed per day to satisfy the 13 addiction. 14 Whether Comment i precludes claims under the CPLA 15 against cigarette manufacturers absent evidence of 16 contamination or adulteration has not been decided in 17 Connecticut. 18 vigorously argued on both sides. 19 prudent to certify this question to the Connecticut Supreme 20 Court. This question is one of state law and is 21 22 11 We therefore think it 1 CONCLUSION 2 For the foregoing reasons, we hereby CERTIFY the 3 following question to the Connecticut Supreme Court: Does 4 Comment i to section 402A of the Restatement (Second) of 5 Torts preclude a suit premised on strict products liability 6 against a cigarette manufacturer based on evidence that the 7 defendant purposefully manufactured cigarettes to increase 8 daily consumption without regard to the resultant increase 9 in exposure to carcinogens, but in the absence of evidence 10 of any adulteration or contamination? 11 of this dispute until we receive guidance from the 12 Connecticut Supreme Court. 13 may modify this question as it sees fit and add any 14 pertinent questions of Connecticut law that the Court 15 chooses to answer. 16 this case and will decide it once the Connecticut Supreme 17 Court has either provided us with its guidance or declined 18 certification. 19 We STAY ADJUDICATION The Connecticut Supreme Court This panel retains jurisdiction over It is therefore ORDERED that the Clerk of this Court 20 transmit to the Clerk of the Connecticut Supreme Court a 21 Certificate, as set forth below, together with this decision 22 and a complete set of the briefs, appendices, and record 23 filed in this Court by the parties. 12 1 2 CERTIFICATE The foregoing is hereby certified to the Connecticut 3 Supreme Court, pursuant to Conn. Gen. Stat. Ann. § 51 199b 4 and 2d Cir. R. 27.2, as ordered by the United States Court 5 of Appeals for the Second Circuit. 13
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