11-3865-cv L Izzarelli v. R.J. Reynolds Tobacco Co. UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT…

11-3865-cv(L)
Izzarelli v. R.J. Reynolds Tobacco Co.
UNITED STATES COURT OF APPEALS 1
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FOR THE SECOND CIRCUIT 3
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August Term, 2012 5
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(Argued: March 18, 2013 Decided: September 10, 2013) 8
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Docket Nos. 11-3865-cv(Lead) 11-3890-cv(XAP) 10
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BARBARA A. IZZARELLI, 14
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Plaintiff-Appellee-Cross-Appellant, 16
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- v.- 18
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R.J. REYNOLDS TOBACCO COMPANY, 20
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Defendant-Appellant-Cross-Appellee. 22
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Before: JACOBS, Chief Judge, CABRANES and WESLEY, 26
Circuit Judges. 27
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Barbara Izzarelli sues R.J. Reynolds Tobacco Company 29
under Connecticut state law claiming that the cigarettes she 30
smoked for 25 years were defective and caused her cancer. A 31
jury found that the cigarettes were defective, and the 32
United States District Court for the District of Connecticut 33
(Underhill, J.) entered judgment in Izzarelli’s favor. R.J. 34
Reynolds Tobacco Company appeals the judgment, arguing that 35
Connecticut law forecloses strict products liability suits 36

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