By Susan Lasser, J.D.
A nearly $28-million judgment in favor of a longtime smoker against the manufacturer of the cigarettes she smoked for 25 years will stand as a result of the U.S. Supreme Court denying the manufacturer’s petition requesting review of a ruling by the U.S. Court of Appeals for the Second Circuit that left undisturbed the damages award. The smoker had claimed that the tobacco company’s cigarettes were defectively designed and caused her throat cancer, and a jury found in her favor. The manufacturer had asked the High Court to assess whether the preclusion of evidence of certain risk factors was proper, and whether the smoker’s strict liability and negligence claims were preempted, an argument the Second Circuit rejected [see Products Liability Law Daily’s December 6, 2017 analysis] (R.J. Reynolds Tobacco Co. v. Izzarelli, petition for cert. filed November 28, 2017; cert. denied February 26, 2018).
The smoker began smoking cigarettes at age 12 in 1970. By 1972, she smoked a pack a day of Salem Kings brand cigarettes manufactured by R.J. Reynolds Tobacco Company. For the next 25 years, she smoked at least two packs of Salems a day. By age 36, she was diagnosed with laryngeal cancer requiring a laryngectomy, after which she no longer had a voice box and had to breathe through a tracheotomy hole in her throat. She had further surgeries to remedy breathing problems.
Lawsuit, jury verdict, and post-trial proceedings. The smoker brought suit against R.J. Reynolds under the Connecticut Products Liability Act (CPLA), asserting strict liability and negligence claims. She alleged that the particular brand of cigarettes she smoked for 25 years was defectively designed and caused her cancer. A jury agreed with the smoker and found R.J. Reynolds liable (and 58 percent at fault) under both legal theories. The total amount of the judgment awarded to the plaintiff was over $28 million, which, in addition to awards of compensatory and punitive damages awards ($7,982,250 and $3,970,289.87, respectively), included $15,777,352 in prejudgment offer-of-judgment interest, and $349,739.40 in post-judgment offer-of-judgment interest.
The trial court denied R.J. Reynolds’ post-trial motion for judgment as a matter of law or for a new trial, and entered judgment in favor of the smoker. The manufacturer appealed on various grounds, and the smoker cross-appealed the district court’s ruling limiting punitive damages to litigation expenses less taxable costs. The U.S. Court of Appeals for the Second Circuit certified the following question to the Connecticut Supreme Court [see Products Liability Law Daily’s September 11, 2013 analysis]: "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?" The Connecticut Supreme Court answered the question in the negative and clarified Connecticut law regarding strict liability, holding that a modified consumer expectation test is the state’s primary strict product liability test and the only test applicable in the smoker’s case [see Products Liability Law Daily’s April 28, 2016 analysis].
Second Circuit’s second decision. The manufacturer brought a second appeal to the Second Circuit, arguing that: (1) erroneous evidentiary rulings and jury instructions required a new trial; (2) the cigarette maker was entitled to judgment as a matter of law because the smoker failed to prove that a defect in Salem Kings caused her cancer; and (3) the smoker’s claims were preempted by federal law because they amounted to a ban on cigarettes. The court of appeals held that the lower court did not abuse its discretion in denying R.J. Reynolds’ new trial motion [see Products Liability Law Daily’s July 11, 2017 analysis]. In response to R.J. Reynolds’ contention that the smoker failed to prove that the claimed defect in Salem Kings caused her cancer, and that the trial court erred by not granting the manufacturer’s motion for judgment as a matter of law on this basis, the Second Circuit found that the evidence was sufficient to support the jury’s finding that the particular blend of ingredients in Salem Kings caused the smoker’s throat cancer. Further, the court rejected the cigarette maker’s preemption argument and declined discussing the merits of the manufacturer’s argument because the court disagreed with its premise.
Petition. The cigarette manufacturer posed the following questions to the Supreme Court:
- Whether, as the Second Circuit held, in direct conflict with three other courts of appeal, a district court may preclude a defendant from presenting evidence and conducting cross examination regarding well-established risk factors for a plaintiff’s injury unless the defendant meets an independent burden to prove that the risk factors are, to a reasonable degree of medical certainty, an actual cause of the plaintiff’s injury
- Whether a plaintiff’s claims against a cigarette manufacturer for strict liability and negligence are preempted by federal law where the claims are based on a state-imposed obligation not to sell cigarettes regardless of whether there is a superior alternate design.
The manufacturer argued that the High Court should grant its petition in order to resolve a split among the appellate circuits concerning the application of the rules of evidence to evidence of possible alternative causes. In addition, R.J. Reynolds requested that the Court "reiterate or clarify" the preemptive effect of federal tobacco legislation after the Second Circuit answered a question of federal preemption in a way that conflicted with Supreme Court precedent. The Supreme Court, however, declined to do so.
The case is Docket No. 17-802.
Attorneys: Theodore M. Grossman (Jones Day) for R.J. Reynolds Tobacco Co.; David S. Golub (Silver Golub & Teitell LLP) for Barbara A Izzarelli.
Companies: R.J. Reynolds Tobacco Co.
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