Products Liability Law Daily R.J. Reynolds seeks High Court’s input on preemption, evidentiary rulings in extended cigarette action
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Wednesday, December 6, 2017

R.J. Reynolds seeks High Court’s input on preemption, evidentiary rulings in extended cigarette action

By Susan Lasser, J.D.

Following up on a ruling by the U.S. Court of Appeals for the Second Circuit that left undisturbed a nearly $28-million judgment in favor of a longtime smoker against the manufacturer of cigarettes she claimed were defectively designed and caused her throat cancer, the manufacturer has petitioned the U.S. Supreme Court on the appellate court’s rulings. In particular, the manufacturer asked the High Court to assess whether the preclusion of the company’s presenting evidence of certain risk factors was proper. Also, the manufacturer asked for review of whether the smoker’s strict liability and negligence claims were preempted, an argument the Second Circuit had rejected (R.J. Reynolds Tobacco Co. v. Izzarelli, petition for cert. filed November 28, 2017).

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. In 1996, at age 36, she was diagnosed with laryngeal cancer. After a laryngectomy in 1997, she no longer had a voice box and had to breathe through a tracheotomy hole in her throat. She has had a number of surgeries to remedy breathing problems. The smoker brought suit against R.J. Reynolds under the Connecticut Products Liability Act (CPLA) for strict liability and negligence, claiming that the particular brand of cigarettes she smoked for 25 years was defectively designed and caused her laryngeal cancer.

A jury agreed with the smoker and found R.J. Reynolds liable (and 58 percent at fault) under theories of strict liability and negligence. It awarded the smoker compensatory damages of $7,982,250 plus punitive damages, which the district court set at $3,970,289.87—the amount of her litigation expenses less taxable costs. The total amount of the judgment awarded to the plaintiff was over $28 million, which, in addition to the compensatory damages and punitive damages awards, 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’s post-trial motion for judgment as a matter of law or for a new trial, and entered judgment in favor of the smoker. The cigarette manufacturer appealed on various grounds, and the smoker cross-appealed the district court’s ruling limiting punitive damages to litigation expenses less taxable costs. R.J. Reynolds appealed, asserting questions relating to the Restatement (Second) of Torts §402A [see Products Liability Law Daily’s September 11, 2013 analysis]. The appellate court certified the following question to the Connecticut Supreme Court: "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. Reynold’s new trial motion [see Products Liability Law Daily’s July 11, 2017 analysis]. In response to R.J. Reynolds’s 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:

  1. 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?
  2. 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, the maker 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 case is Docket No. 17-802.

Attorneys: Theodore M. Grossman (Jones Day) for R.J. Reynolds Tobacco Co.

Companies: R.J. Reynolds Tobacco Co.

MainStory: TopStory SupremeCtNews EvidentiaryNews PreemptionNews TobaccoProductsNews

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