Connecticut Question Certified: "Good Tobacco" Defense to Strict Liability

A former smoker sued a cigarette manufacturer in diversity, asserting claims under Connecticut’s Products Liability Act (CPLA) for strict liability and negligent design. She claimed that the cigarettes she smoked for 25 years were defective and caused her laryngeal cancer. A jury found that the cigarettes were defective. The United States District Court for the District of Connecticut entered judgment for the former smoker. The district court denied the manufacturer's motion for judgment as a matter of law, or, alternatively, for a new trial. The manufacturer appealed arguing that Connecticut law foreclosed strict products liability suits against a cigarette manufacturer absent evidence that the cigarettes were contaminated or adulterated.


The Second Circuit U.S. Court of Appeals held that certification of a question to Connecticut Supreme Court was warranted. In order to prove a strict liability claim under the CPLA, it must be shown that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition. This case turned on whether the product was in a defective condition.


The Connecticut rule for strict liability was drawn from section 402A of the Restatement (Second) of Torts. That section included Comment i explaining what makes a product “unreasonably dangerous” that excluded the harmful effects of “good tobacco.” Specifically, the section stated, “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....” The Connecticut Supreme Court has explicitly adopted Comment i's definition of “unreasonably dangerous.” However, the Connecticut Supreme Court has not considered the proviso for “good tobacco” in Comment i.


The manufacturer argued that Comment i precluded the former smoker's suit because she had not produced evidence of contamination or adulteration. The former smoker argued that Comment i specified “good tobacco” as opposed to “good cigarettes,” and therefore did not bear upon the manufacturing process. Specifically, a cigarette was a nicotine delivery device that can change how tobacco was smoked and its effect on the smoker. The former smoker produced evidence at trial that the manufacturer varied the blends and components to make the specific brand the former smoker had smoked more addictive, and varied the nicotine levels to maximize the number of cigarettes needed per day to satisfy the addiction.


The Second Circuit noted that it was unclear whether Comment i precluded all products liability claims in Connecticut against tobacco companies absent allegations of contamination or adulteration. Because this question of Connecticut law was undecided and decisive, the Second Circuit certified it to the Connecticut Supreme Court, and stayed resolution of the case in the interval. Specifically, the court certified the question, “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?”


See: Izzarelli v. R.J. Reynolds Tobacco Co., 2013 WL 4792531 (C.A.2 (Conn.), September 10, 2013) (not designated for publication).