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From Products Liability Law Daily, February 18, 2014

Court certifies questions of unreasonable danger and punitive damages in cigarette case

By Deirdre Kennedy, J.D.

In this case involving product liability and negligence claims brought against a tobacco company, the federal district court in Connecticut certified a question addressing the standard for determining whether a product is “defective” in a Connecticut Product Liability Act (CPLA) claim for negligence to the Connecticut Supreme Court because it could be determinative of the issue in the pending litigation and there was no controlling appellate decision, constitutional provision, or statute in the state law. The court also certified a question as to the effect the CPLA had on Connecticut’s common-law rule for calculating punitive damages. (731 F.3d 164 (2d Cir 2013). (Bifolck v. Philip Morris, Inc.February 14, 2014, Underhill, S.)

Background.  Vincent Bifolck brought a cause of action for wrongful death and loss of consortium against cigarette manufacturer Philip Morris, alleging that the cigarettes his wife had smoked were defectively designed and manufactured, leading to his wife’s death. Bifolck brought his claims pursuant to the CPLA. With respect to strict liability, Bifolck asserted that the cigarettes were defective and unreasonably dangerous. With respect to negligence, he contended that the manufacturer failed to comply with the standards of care applicable to the design and manufacture of cigarette products by a prudent cigarette manufacturer. Bifolck’s claims were grounded in strict liability.

Bifolck moved to certify two questions addressing the standard for determining whether a product is “defective” in a CPLA claim for negligence to the Connecticut Supreme Court—specifically: (1) whether a plaintiff asserting a CPLA claim grounded in negligence must identify a defect that renders a product “unreasonably dangerous,” as provided in section 402A of the Restatement (Second) of Torts and Comment i to that provision; and (2) if the answer is in the affirmative, whether Comment i precludes a CPLA claim against a cigarette manufacturer for negligent design of a cigarette absent proof of adulteration or contamination of the tobacco in the cigarette. Bifolck also sought certification of a third question: whether the CPLA subsumes or abrogates the Connecticut common-law rule for calculating punitive damages. The court granted certification on the first and third questions only.

Application of CPLA to negligent design claim. The court stated that when deciding whether to certify a question to the Connecticut Supreme Court, a court should consider, among other factors: (1) the absence of authoritative state court decisions; (2) the importance of the issue to the state; and (3) the capacity of certification to resolve the litigation. In deciding whether Section 402A and Comment i apply in a CPLA negligence claim, the court noted that the CPLA was intended to merge the various common law theories of products liability into a single cause of action in order to simplify pleadings and procedures. Therefore, a plaintiff may not assert a cause of action against a product seller for harm caused by the product except within the framework of the CPLA. The CPLA does not lay out the elements of claims under the various theories it consolidates. The Connecticut Supreme Court has adopted the “consumer expectations” test set forth in section 402A and Comment i for CPLA claims grounded in strict liability. Both parties in this case acknowledged that the CPLA requires a plaintiff to prove that the product in question is “defective,” regardless of whether his claim is grounded in strict liability or negligence. But, they disputed whether a negligently designed product must also be “unreasonably dangerous” as provided in section 402A and defined in Comment i. Bifolck asserted that section 402A was not meant to apply in a negligence action, because section 402A is a rule “of strict liability, making the seller subject to liability to the user or consumer even though he has exercised all possible care in the preparation and sale of the product.” Philip Morris disagreed, asserting that the Connecticut Supreme Court’s decisions in Wagner and several lower court cases make it clear that, whether grounded in strict liability or negligence, a CPLA claim must involve a defective product that is “unreasonably dangerous,” pursuant to section 402A.

However, the court refused to certify the second question—whether Comment i precludes a CPLA claim against a cigarette manufacturer for negligent design of a cigarette absent proof of adulteration or contamination of the tobacco in the cigarette in light of a previous certification of that question by the U.S. Court of Appeals for the Second Circuit in Izzarelli v. R.J. Reynolds  Tobacco Co. (731 F.3d 164 (2d Cir. 2013)

Punitive damages. On the question of whether Connecticut’s common-law punitive damages rule would apply, the court noted that the punitive damages provision of the CPLA limits such damages to an amount equal to twice the damages awarded to the plaintiff, according to Connecticut statute, but the statute does not indicate how a judge should calculate those damages. Generally, where a statute authorizing punitive damages is silent about how they should be calculated, a court should follow the common-law rule. The language of the CPLA and its legislative history provide no indication whether the CPLA’s punitive damages provision incorporates or abrogates the traditional common-law formulation.

The case number is 3:06cv1768 (SRU)

Attorneys:  David S. Golub (Silver, Golub & Teitell) for Vincent J. Bifolck, Executor of Estate of Jeanette D. Bifolck. Francis H. Morrison, III (Axinn, Veltrop & Harkrider LLP-HTFD) and John B. Daukas (Goodwin Procter, LLP - MA) for Philip Morris, Inc.

Companies: Philip Morris, Inc.

MainStory: TopStory DesignManufacturingNews TobaccoProductsNews DamagesNews Connecticut News

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