In Notable Ruling Connecticut Supreme Court Changes Standard for Design Defect Claims and Allows Smoker’s Suit Against Cigarette Maker


In a May, 2016 decision, the Connecticut Supreme Court, ruling on a certified question from the Second Circuit, found that R. J. Reynolds was not exempt from suit by long time smoker Barbara Izzarelli. Izzarelli started smoking Salem Kings at age 12 and developed laryngeal cancer resulting in the removal of her voice box. She brought a product liability claim alleging that R. J. Reynolds included additives and manipulated the nicotine in their cigarettes making them more addictive, and therefore, more toxic. In the first verdict against a tobacco company in New England, the jury found in favor of Izzarelli. The verdict reached a total of $28 million in compensatory and punitive damages.

On appeal, R.J. Reynolds argued that Izzarelli's suit should be precluded under the "ordinary consumer expectation test," including comment (i) to Section 402A of the Restatement (Second) of Torts, which determines whether a product is "unreasonably dangerous" and therefore defective under Connecticut strict liability law. Comment (i) states in part: "[g]ood [unadulterated] tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful." This comment presumes that consumers are aware that cigarettes can cause injury. Where, as here, a consumer may not know whether cigarette ingredients were altered so that smoking is encouraged, the Court held that a "modified consumer expectations test" should apply.

The modified test was promulgated by the Court in 1997 to address complex products where the consumer may not have "informed safety expectations", and takes into account risk and utility when assessing whether a consumer would find the product design unreasonably dangerous. See Potter v. Chicago Pneumatic Tool, 241 Conn. 199 (1997). The Izzarelli Court found plaintiff's claim to be viable because a design defect claim can succeed, even with inherently dangerous products, where those products are manipulated so that risk is increased. The Court went on to hold that the modified consumer expectations test is now the default standard to apply in all Connecticut design defect product liability cases sounding in strict liability. The Court also held that a jury could still consider the ordinary consumer expectation test for products that fail to meet commonly accepted minimum safety expectations.

Connecticut law continues to evolve in this area. Another tobacco case is currently before the Connecticut Supreme Court, Bifolck v. Philip Morris, Inc., S.C. 19310, on a certified question regarding the application of the consumer expectations test in a product liability claim grounded in negligence. The Court has requested amicus briefs on whether the consumer expectation tests should be abolished in favor of other standards, including the risk-utility standard set forth in section 2(b) of the Restatement (Third) of Torts. Governo Law Firm is committed to staying abreast of relevant changes in the law and we will monitor this case closely.