Izzarelli v. R.J. Reynolds Tobacco Company

321 Conn. 172 (2016)

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Nature of the Case

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Facts

D appealed from a judgment in the United States District Court for the District of Connecticut in favor of P, a former smoker and cancer survivor, on an action brought pursuant to Connecticut's Product Liability Act (liability act). The Court of Appeals certified a question to the State Supreme Court. The relevant time frame, in this case, spans from the early 1970s, when P first began to smoke, until the late 1990s, when she was diagnosed with and treated for, cancer. D has manufactured Salem King (Salem) cigarettes, the menthol cigarette brand smoked by P, since 1956. In the early 1970s, D identified certain weaknesses in its brand. One of the concerns identified was that almost one-half of Salem users were light smokers, meaning that they smoked one to fifteen cigarettes per day. In an effort to capture a larger share of its desired market, D modified Salem's design. D knew the form of the nicotine affects the rate at which it is absorbed and delivers its ''kick'' to the smoker. Of the two principal forms, bound and free, free nicotine (also known as freebase nicotine) moves through the body's blood/brain barrier faster and provides the smoker with a higher and more immediate kick. Addiction liability increases in relation to the amount and speed of the delivery of free nicotine. Second, there is an effective dose range of nicotine necessary to maintain addiction. The lowest nicotine yield (nicotine actually delivered to the smoker) that would maintain addiction requires the smoker to receive between five and eight milligrams of nicotine daily. D modified its Salem cigarettes in a manner that took both of these factors into account. D had identified seven methods for manipulating the nicotine kick of its cigarettes, which it incorporated into its product. Among those methods was adding ammonia compounds to turn the nicotine into its more potent freebase form. Adding acetaldehyde, one of scores of chemicals added to Salem cigarettes,4 would cut the harshness of the nicotine while reinforcing its effects. Lowering nicotine levels below those naturally occurring could be achieved through various processes whereby the nicotine is extracted from the tobacco leaf and added back at the desired level. D understood that increasing the free nicotine would enhance the addictive properties of Salem cigarettes while decreasing the nicotine yield of the cigarettes would increase the number of cigarettes needed to meet the smoker's addiction demand. The smoker would purchase more cigarettes and also be exposed to more carcinogens, specifically, 'tar.' P began smoking in the early 1970s when she was approximately twelve years old. She quickly became severely addicted, eventually smoking two to three packs of Salem cigarettes daily. A warning from the Surgeon General of the United States that smoking is dangerous to one's health appeared on the packaging of Salem cigarettes. At age thirty-six and after smoking for twenty-five years, P was diagnosed with cancer of the larynx. P's larynx was removed, and she received radiation. In 1997, P quit smoking. She is cancer free but continues to have various disabilities and problems related to her laryngectomy. P sued D for product liability under strict liability and negligent design. The dispute was whether D had designed and manufactured a tobacco product with heightened addictive properties that delivered more carcinogens than necessary. D argued that application of the modified consumer expectation test would be improper because that test (a) only applies to products based on complex designs, which it claimed cigarettes are not, and (b) is conflict preempted by federal law because it could yield a result that in effect would require cigarette manufacturers to cease production to avoid liability, in contravention of Congress' decision to permit the sale of tobacco products. The evidence demonstrated that Salem cigarettes are uniquely designed and manufactured in such a way to make that product different from other cigarettes. The court further concluded that the jury properly could be instructed on the modified consumer expectation test. P got the verdict, and D appealed. The Court certified a question.