Izzarelli v. R.J. Reynolds Tobacco Co. ( 2016 )

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BARBARA A. IZZARELLI v. R.J. REYNOLDS
TOBACCO COMPANY
(SC 19232)
Zarella, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.
Argued April 22, 2015—officially released May 3, 2016
David S. Golub, with whom were Jonathan M. Levine
and, on the brief, Marilyn J. Ramos, for the appel-
lant (plaintiff).
Theodore M. Grossman, pro hac vice, with whom
were Jeffrey J. White, and, on the brief, Frank F. Cou-
lom, Jr., and Kathleen E. Dion, for the appellee
(defendant).
George Jepsen, attorney general, Gregory T. D’Auria,
solicitor general, and Phillip Rosario, Jonathan J.
Blake and Thomas J. Saadi, assistant attorneys general,
filed a brief for the state of Connecticut et al. as
amici curiae.
Edward L. Sweda, Jr., pro hac vice, and Michael
J. Walsh filed a brief for the Public Health Advocacy
Institute as amicus curiae.
Kathleen L. Nastri and Jeffrey R. White, pro hac vice,
filed a brief for the American Association for Justice
as amicus curiae.
Opinion
McDONALD, J. We have been asked by the United
States Court of Appeals for the Second Circuit to con-
sider whether the ‘‘[g]ood tobacco’’ exception to strict
products liability contained in comment (i) to § 402A
of the Restatement (Second) of Torts1 precludes an
action in this state against a cigarette manufacturer for
including additives and manipulating the nicotine in its
cigarettes in a manner that ultimately increases the
user’s risk of cancer. See 2 Restatement (Second), Torts
§ 402A, comment (i), pp. 352–53 (1965). The defendant,
R.J. Reynolds Tobacco Company, appealed to that court
from the judgment of the United States District Court
for the District of Connecticut in favor of the plaintiff,
Barbara A. Izzarelli, a former smoker and cancer survi-
vor, on an action brought pursuant to Connecticut’s
Product Liability Act (liability act), General Statutes
§ 52-572m et seq. Pursuant to General Statutes § 51-
199b (d), we accepted certification with respect to the
following question from the Second Circuit: ‘‘Does
[comment (i) to § 402A] preclude a suit premised on
strict products liability against a cigarette manufacturer
based on evidence that the defendant purposefully man-
ufactured cigarettes to increase daily consumption
without regard to the resultant increase in exposure to
carcinogens, but in the absence of evidence of adultera-
tion or contamination?’’2 See Izzarelli v. R.J. Reynolds
Tobacco Co., 731 F.3d 164, 169 (2d Cir. 2013).
This case requires us to revisit our seminal strict
product liability precedent, Potter v. Chicago Pneu-
matic Tool Co., 241 Conn. 199, 694 A.2d 1319 (1997),
and to clarify the proper purview of the two strict liabil-
ity tests recognized in that case: the ordinary consumer
expectation test and the modified consumer expecta-
tion test. We conclude that the modified consumer
expectation test is our primary strict product liability
test, and the sole test applicable to the present case.
Because the obvious danger exceptions to strict liability
in comment (i) to § 402A of the Restatement (Second),
including ‘‘[g]ood tobacco,’’ are not dispositive under
the multifactor modified consumer expectation test, we
answer the certified question in the negative.
The District Court’s ruling on the defendant’s motion
for a new trial and its renewed motion for judgment as
a matter of law sets forth the following facts that the
jury reasonably could have found, which we supple-
ment with relevant procedural history. Izzarelli v. R.J.
Reynolds Tobacco Co., 806 F. Supp. 2d 516 (D. Conn.
2011). The relevant time frame in this case spans from
the early 1970s, when the plaintiff first began to smoke,
until the late 1990s, when she was diagnosed with, and
treated for, cancer. The defendant has manufactured
Salem King (Salem) cigarettes, the menthol cigarette
brand smoked by the plaintiff, since 1956. Id., 520. In
the early 1970s, the defendant identified certain weak-
nesses in its brand. Id., 521. One of the concerns identi-
fied was that almost one half of Salem users were light
smokers, meaning that they smoked one to fifteen ciga-
rettes per day. In an effort to capture a larger share
of its desired market, the defendant modified Salem’s
design. Id.
The defendant’s internal research had disclosed two
important factors concerning nicotine, a naturally
occurring but addictive component of tobacco. First,
the form of the nicotine affects the rate at which it is
absorbed and delivers its ‘‘ ‘kick’ ’’ to the smoker. Id.
Of nicotine’s two principal forms, bound and free, free
nicotine (also known as freebase nicotine) moves
through the body’s blood/brain barrier faster and pro-
vides the smoker with a higher and more immediate
kick. Addiction liability increases in relation to the
amount and speed of the delivery of free nicotine.3 Sec-
ond, there is an effective dose range of nicotine neces-
sary to maintain addiction. Id. The lowest nicotine yield
(nicotine actually delivered to the smoker) that would
maintain addiction requires the smoker to receive
between five and eight milligrams of nicotine daily.
Id., 523.
The defendant modified its Salem cigarettes in a man-
ner that took both of these factors into account. The
defendant had identified seven methods for manipulat-
ing the nicotine kick of its cigarettes, which it incorpo-
rated into its product. Id., 522. Among those methods
was adding ammonia compounds to turn the nicotine
into its more potent freebase form. Adding acetalde-
hyde, one of scores of chemicals added to Salem ciga-
rettes,4 would cut the harshness of the nicotine while
reinforcing its effects. Id., 523. Lowering nicotine levels
below those naturally occurring could be achieved
through various processes whereby the nicotine is
extracted from the tobacco leaf and added back at the
desired level. The defendant understood that increasing
the free nicotine would enhance the addictive proper-
ties of Salem cigarettes, while decreasing the nicotine
yield of the cigarettes would increase the number of
cigarettes needed to meet the smoker’s addiction
demand. Id.
The fact that the smoker would need to smoke more
cigarettes to satisfy his or her addiction had two obvious
consequences. First, the smoker would purchase more
cigarettes. Second, the smoker would be exposed to
more carcinogens, specifically, ‘‘tar.’’ Id. ‘‘ ‘Tar’ ’’ is the
tobacco industry term for all byproducts of smoking
other than water and nicotine. Id. Tar yield is affected
by numerous factors, including the type of filter, the
type of paper, how the paper is ventilated, the length
and composition of the cigarette, and the blend of the
tobacco. Id.
By the early 1970s, the defendant had lowered the
nicotine yield in Salem cigarettes from its 1956 level of
3.1 milligrams to 1.3 milligrams—a level determined to
be optimal to maintain addiction. Id. At that time, Salem
cigarettes contained fifteen to nineteen milligrams of
tar, an amount that exceeded the level in its main com-
petitor for menthol cigarettes, Kool. Id. The defendant
had the capability of reducing the level of tar in its
cigarettes to one milligram or less; in fact, two of its
brands had two milligrams of tar in 1973. Id. Thus, the
defendant manipulated the natural effect of nicotine
through the use of additives, tobacco formulation, and
other methods. In so doing, the defendant enhanced
the addictive nature of the product, increased the num-
ber of cigarettes smoked by its consumer, and ulti-
mately delivered a higher level of carcinogens to the
consumer as compared to other cigarettes. Because the
causal relationship between smoking and cancer is dose
related, increasing the Salem smoker’s exposure to car-
cinogens increased the likelihood of cancer. Id., 523–24.
The plaintiff began smoking in the early 1970s, when
she was approximately twelve years old. She quickly
became severely addicted, eventually smoking two to
three packs of Salem cigarettes daily. Id., 524. Through-
out the period when the plaintiff smoked, a warning
from the Surgeon General of the United States that
smoking is dangerous to one’s health appeared on the
packaging of Salem cigarettes. See id., 527 n.4.
In 1996, at age thirty-six and after smoking for twenty-
five years, the plaintiff was diagnosed with cancer of
the larynx. Id., 524. A person with the plaintiff’s smoking
history has between a 6.9 and 20 times greater chance
of developing laryngeal cancer than a nonsmoker. Id.
To treat her cancer, the plaintiff’s larynx was removed
and she received radiation. In 1997, the plaintiff quit
smoking. She is cancer free, but continues to have vari-
ous disabilities and problems related to her laryngec-
tomy. Id.
After the plaintiff’s cancer diagnosis and treatment,
she commenced the present product liability action in
federal court under theories of strict liability and negli-
gent design.5 At trial, the crux of the factual dispute
was whether the defendant had designed and manufac-
tured a tobacco product with heightened addictive
properties that delivered more carcinogens than neces-
sary. Id., 520. In addition to denying that allegation,
the defendant also argued that the product ‘‘defect’’
identified by the plaintiff was merely the inherent risk
common to all tobacco products insofar as all cigarettes
contain nicotine and carcinogens. Id. As such, the defen-
dant characterized the plaintiff’s action as impermissi-
bly claiming that cigarettes generally are unreasonably
dangerous, in contravention to the proviso in comment
(i) to § 402A of the Restatement (Second) that ‘‘[g]ood
tobacco’’ (i.e., an ordinary, unadulterated cigarette) is
not unreasonably dangerous. The defendant made a
related claim that the determination whether Salem
cigarettes are unreasonably dangerous is exclusively
governed by the ordinary consumer expectation test,
as defined by comment (i) to § 402A, not the modified
consumer expectation test that the plaintiff sought to
apply. Id., 527. The defendant argued that application
of the modified consumer expectation test would be
improper because that test (a) only applies to products
based on complex designs, which it claimed cigarettes
are not, and (b) is conflict preempted by federal law
because it could yield a result that in effect would
require cigarette manufacturers to cease production to
avoid liability, in contravention of Congress’ decision
to permit the sale of tobacco products. Id., 537.
The District Court rejected these claims in prejudg-
ment and postjudgment motions. With respect to the
plaintiff’s theory of the case, the court concluded that
the plaintiff’s claim alleged, and the evidence demon-
strated, that Salem cigarettes are uniquely designed and
manufactured in such a way to make that product differ-
ent from other cigarettes. Id., 526 n.3. With respect to
the governing law, the court concluded that, although
Connecticut derives an essential definition for product
liability actions from comment (i) to § 402A of the
Restatement (Second), there is no evidence that Con-
necticut has adopted the limitations in comment (i),
including ‘‘[g]ood tobacco.’’ Id., 536. The court further
concluded that the jury properly could be instructed
on the modified consumer expectation test. The court
reasoned that this test was appropriate because the
evidence demonstrated the complex design of ciga-
rettes and the potential inability of the ordinary con-
sumer (a beginner smoker, often a youth or minor) to
form proper safety expectations. Id., 537. Finally, the
court concluded that a verdict for the plaintiff on that
test under the plaintiff’s theory of the case would not
amount to a ban on all cigarettes given the evidence of
the unique design of Salem cigarettes. Id.
Ultimately, the court decided to instruct the jury on
both the ordinary and modified consumer expectation
tests as alternative bases for liability. Id., 527, 535–36.
In its instructions applicable to both tests, the District
Court cautioned: ‘‘For [the] plaintiff to meet her burden
of proving . . . that Salem . . . cigarettes are defec-
tive, she must show that the Salem . . . cigarettes were
‘unreasonably dangerous’ to her, the user. . . . With
respect to cigarettes in general, I instruct you that ciga-
rettes are not defective merely because nicotine and/or
carcinogenic substances may be inherent in the tobacco
from which such cigarettes are manufactured.’’ Id., 535.
The jury returned a verdict in favor of the plaintiff,
finding the defendant liable for both strict liability and
negligent design.6 The verdict form did not indicate
whether the jury’s strict liability verdict was premised
on the ordinary consumer expectation test or the modi-
fied consumer expectation test.
In accordance with the defendant’s request, the jury
assessed comparative responsibility for the plaintiff’s
injuries, attributing 42 percent to the plaintiff and 58
percent to the defendant. After reducing the damages in
accordance with the verdict, the District Court rendered
judgment in the plaintiff’s favor in the amount of
$7,982,250 in compensatory damages, as well as puni-
tive damages and offer of judgment interest.7
The defendant appealed to the Second Circuit,
renewing, inter alia, its claim that the plaintiff’s product
liability cause of action is foreclosed by comment (i)
to § 402A of the Restatement (Second) because com-
ment (i) precludes liability of a seller of good tobacco.
Because the Second Circuit deemed Connecticut law
to be unsettled regarding this matter, it certified a ques-
tion of law to this court regarding the preclusive effect
of comment (i) on a strict product liability claim.
Before this court, the plaintiff argues: (1) the ordinary
consumer expectation test, on which both comment (i)
to § 402A and its good tobacco example are predicated,
has been superseded as a matter of Connecticut law in
favor of the modified consumer expectation test, under
which consumer expectations are but one factor in
assessing liability; (2) even under the ordinary con-
sumer expectation test, the good tobacco exception in
comment (i) to § 402A is limited to raw tobacco and
does not require proof of ‘‘adulteration’’ or ‘‘contamina-
tion’’ of the cigarettes; and (3) public policy considera-
tions militate against applying comment (i) to § 402A in
a manner that would immunize cigarette manufacturers
from strict liability for design defects. In response, the
defendant contends that, because the only question
before this court is whether comment (i) to § 402A
precludes an action against a cigarette manufacturer
premised on an unadulterated cigarette, a question that
arises in connection with the ordinary consumer expec-
tation test, the plaintiff’s argument relating to the modi-
fied consumer expectation test is outside the scope of
the certified question and should not be addressed.
Moreover, it contends that the modified test is an
improper test for unadulterated, generic cigarettes. As
to the ordinary consumer expectation test that it claims
should govern, the defendant contends that, because
the addictive and cancer causing properties of ciga-
rettes have been well-known since at least the 1960s,
jurisdictions espousing the standard in comment (i) to
§ 402A have routinely dismissed claims predicted on
such alleged defects and this court should conclude
likewise.
I
To resolve these competing contentions, it is neces-
sary to provide some background on the development
of Connecticut’s strict product liability law. In 1965,
Connecticut became one of the first jurisdictions to
adopt, as a matter of state common law, § 402A of
the Restatement (Second) of Torts, which had been
adopted the previous year by the American Law Insti-
tute. See Potter v. Chicago Pneumatic Tool Co., supra,
241 Conn. 214, citing Garthwait v. Burgio, 153 Conn.
284, 289–90, 216 A.2d 189 (1965). Section 402A recog-
nized an action for strict product liability in tort without
the requirement of privity between the seller and the
consumer or proof of manufacturer fault. See Potter v.
Chicago Pneumatic Tool Co., supra, 210–11;
Restatement (Third), Torts, Products Liability, intro-
duction, p. 3 (1998). The elements of a strict liability
action that this court derived from § 402A required the
plaintiff to prove: ‘‘(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.’’ (Emphasis added.)
Giglio v. Connecticut Light & Power Co., 180 Conn. 230,
234, 429 A.2d 486 (1980); accord Rossignol v. Danbury
School of Aeronautics, Inc., 154 Conn. 549, 562, 227
A.2d 418 (1967); Garthwait v. Burgio, supra, 289.
This court derived our definition of unreasonably
dangerous, the second element of our strict liability
test, from comment (i) to § 402A of the Restatement
(Second): ‘‘To be considered unreasonably dangerous,
the article sold must be dangerous to an extent beyond
that which would be contemplated by the ordinary con-
sumer who purchases it, with the ordinary knowledge
common to the community as to its characteristics.’’
(Internal quotation marks omitted.) Slepski v. Williams
Ford, Inc., 170 Conn. 18, 23, 364 A.2d 175 (1975), quoting
2 Restatement (Second), supra, § 402A, comment (i),
p. 352; accord Giglio v. Connecticut Light & Power
Co., supra, 180 Conn. 234. This definition eventually
came to be known under our law as the ordinary con-
sumer expectation test. See Potter v. Chicago Pneu-
matic Tool Co., supra, 241 Conn. 222.
Although our courts repeatedly have applied this defi-
nition, they have never referred to the related explana-
tion or illustrations in comment (i) to § 402A. Comment
(i) to § 402A of the Restatement (Second) of Torts pro-
vides in full: ‘‘The rule stated in this [s]ection applies
only where the defective condition of the product
makes it unreasonably dangerous to the user or con-
sumer. Many products cannot possibly be made entirely
safe for all consumption, and any food or drug necessar-
ily involves some risk of harm, if only from over-con-
sumption. Ordinary sugar is a deadly poison to
diabetics, and castor oil found use under Mussolini as
an instrument of torture. This is not what is meant by
‘unreasonably dangerous’ in this [s]ection. 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 whiskey
is not unreasonably dangerous merely because it will
make people drunk, and is especially dangerous to alco-
holics; but bad whiskey, containing a dangerous amount
of fusel oil, is unreasonably dangerous. Good tobacco
is not unreasonably dangerous merely because the
effects of smoking may be harmful; but tobacco con-
taining something like marijuana may be unreason-
ably dangerous. Good butter is not unreasonably
dangerous merely because, if such be the case, it depos-
its cholesterol in the arteries and leads to heart attacks;
but bad butter, contaminated with poisonous fish oil,
is unreasonably dangerous.’’ (Emphasis added.)
To place comment (i) in its proper context, it is
important to recognize that § 402A was adopted at a
time when products liability historically had focused
on manufacturing defects, particularly with respect to
food safety issues, before design defects and inadequate
safety warnings had become well established theories
of strict product liability. See Blue v. Environmental
Engineering, Inc., 215 Ill. 2d 78, 89, 828 N.E.2d 1128
(2005) (‘‘[h]istorically, the focus of products liability law
was initially on manufacturing defects’’); V. Schwartz,
‘‘The Restatement, Third, Torts: Products Liability: A
Model of Fairness and Balance,’’ 10 Kan. J.L. & Pub.
Policy 41, 42 (2000) (‘‘None of the cases cited in support
of § 402[A] discussed design liability. All of the cases
concerned products that were mismanufactured.’’); 1
D. Owen & M. Davis, Products Liability (4th Ed. 2014)
§ 8.3, pp. 712–14 (explaining historical development of
rule in light of defective food products); see also
Restatement (Third), supra, introduction, p. 3 (‘‘[§] 402A
had little to say about liability for design defects or for
products sold with inadequate warnings’’). This focus
is reflected in the examples given in comment (i) of
unreasonably dangerous products, i.e., contaminated
butter or mismanufactured whiskey.8
In 1979, our legislature adopted our product liability
act. See Public Acts 1979, No. 79-483. That liability act
required all common-law theories of product liability
to be brought as a statutory cause of action. See General
Statutes § 52-572n. However, the liability act neither
expressly codified our common-law definition of defec-
tive product under § 402A and comment (i) nor sup-
planted it with its own definition. But see General
Statutes § 52-572q (providing elements for failure to
warn defect). A significant change under the liability
act was the adoption of comparative responsibility in
lieu of contributory fault, so that a plaintiff’s recovery
could be reduced in proportion to his or her responsibil-
ity for the injury but not barred, no matter how high
the degree of fault. See General Statutes §§ 52-572l and
52-572o, legislatively overruling Hoelter v. Mohawk Ser-
vice, Inc., 170 Conn. 495, 505–506, 365 A.2d 1064 (1976)
(importing contributory negligence concept and
applying it to strict product liability).
As product liability jurisprudence began to develop
beyond its historical focus to include design defects
and failure to warn defects, many jurisdictions found
the ordinary consumer expectation test to be an inade-
quate tool. See Restatement (Third), supra, § 1, com-
ment (a), pp. 6–7 (‘‘it soon became evident that § 402A,
created to deal with liability for manufacturing defects,
could not appropriately be applied to cases of design
defects or defects based on inadequate instructions or
warnings’’). Most obviously, one could not simply com-
pare the defective product to others in the product line
to make an objective assessment of the consumer’s
expectations of the product. See id., § 2, comment (a),
pp. 15–16 (‘‘In contrast to manufacturing defects, design
defects and defects based on inadequate instructions
or warnings are predicated on a different concept of
responsibility. . . . [S]uch defects cannot be deter-
mined by reference to the manufacturer’s own design
or marketing standards because those standards are
the very ones that plaintiffs attack as unreasonable.
Some sort of independent assessment of advantages
and disadvantages, to which some attach the label ‘risk-
utility balancing,’ is necessary.’’); Ford Motor Co. v.
Pool, 688 S.W.2d 879, 881 (Tex. App. 1985) (‘‘Manufac-
turing defect cases involve products which are flawed,
i.e., which do not conform to the manufacturer’s own
specifications, and are not identical to their mass-pro-
duced siblings. The flaw theory is based upon a funda-
mental consumer expectancy: that a mass-produced
product will not differ from its siblings in a manner
that makes it more dangerous than the others. Defective
design cases, however, are not based on consumer
expectancy, but on the manufacturer’s design of a prod-
uct which makes it unreasonably dangerous, even
though not flawed in its manufacture.’’), aff’d in part
and rev’d in part on other grounds, 715 S.W.2d 629
(Tex. 1986).
For this and other reasons principally related to prob-
lems of proof, many jurisdictions adopted a multifactor
‘‘risk-utility’’ balancing test for design defect cases in
lieu of, or in addition, to the consumer expectation test.
See, e.g., Caterpillar Tractor Co. v. Beck, 593 P.2d 871,
884 (Alaska 1979); Barker v. Lull Engineering Co., 20
Cal. 3d 413, 435, 573 P.2d 443, 143 Cal. Rptr. 225 (1978);
Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo.
1992) (en banc); Radiation Technology, Inc. v. Ware
Construction Co., 445 So. 2d 329, 331 (Fla. 1983); Ontai
v. Straub Clinic & Hospital, Inc., 66 Haw. 237, 243,
659 P.2d 734 (1983); Lamkin v. Towner, 138 Ill. 2d 510,
529, 563 N.E.2d 449 (1990); Thibault v. Sears, Roebuck &
Co., 118 N.H. 802, 807–809, 395 A.2d 843 (1978); Turner
v. General Motors Corp., 584 S.W.2d 844, 848 (Tex.
1979); see also 1 D. Owen & M. Davis, supra, § 8.15, p.
762 (‘‘during the 1980s . . . the consumer expectation
test gradually lost ground to risk-utility in their battle
for supremacy as independent tests of design defec-
tiveness’’ [footnote omitted]). When the Restatement
(Third) of Torts was adopted by the American Law
Institute in 1997, it deemed the consumer expectation
test inappropriate for design defects and abandoned
that test in favor of a risk-utility test that focused on the
availability of a feasible, safer alternative. Restatement
(Third), supra, § 2 (b); id., § 2, comment (g), pp. 27–28.
Under the Restatement (Third) of Torts and the various
jurisdictions’ risk-utility tests, consumer expectations
were a relevant, but not necessarily dispositive, consid-
eration in determining whether there was a design
defect. Restatement (Third), supra, § 2, comment (d),
p. 20; id., § 2, reporters’ note, comment (d) (IV) (C),
pp. 84–87.
In 1997, in Potter, this court considered the viability
of our ordinary consumer expectation test for design
defect cases. See Potter v. Chicago Pneumatic Tool
Co., supra, 241 Conn. 206–23. The defendants in that
case had requested that the court abandon that test for
such cases in favor of the risk-utility test in the second
tentative draft of the Restatement (Third) of Torts.9 Id.,
215. The court declined to adopt the test in the draft
Restatement (Third). Id., 217–19. The court viewed an
absolute requirement of proof of a feasible alternative
design to impose an undue burden on plaintiffs and to
preclude claims that should be valid even in the absence
of such proof. Id., 217–18.
Although the court in Potter maintained its allegiance
to § 402A, it acknowledged criticisms of the ordinary
consumer expectation test and decided that some
change in our law was necessary because that test also
could preclude relief for valid claims. Id., 219–20. In
particular, the court pointed to the problem of complex
products for which a consumer might not have informed
safety expectations. Id., 219. The court was concerned,
however, with shifting the focus to the conduct of the
manufacturer and in turn abandoning strict liability. Id.,
221–22. Accordingly, the court decided to adopt a test
that would incorporate risk-utility factors into the ordi-
nary consumer framework. Id., 220–21. Under the ‘‘mod-
ified’’ consumer expectation test, the jury would weigh
the product’s risks and utility and then inquire, in light of
those factors, whether a ‘‘reasonable consumer would
consider the product design unreasonably dangerous.’’
Id., 221. The court’s sample jury instruction incorpo-
rated the definition of unreasonably dangerous from
comment (i) to § 402A of the Restatement (Second) and
then provided a nonexclusive list of factors that could
be used to determine what an ordinary consumer would
expect.10 Id., 221 n.15. ‘‘The availability of a feasible
alternative design is a factor that a plaintiff may, rather
than must, prove in order to establish that a product’s
risks outweigh its utility.’’ Id., 221.
The court in Potter emphasized that it would ‘‘not
require a plaintiff to present evidence relating to the
product’s risks and utility in every case. . . . There are
certain kinds of accidents—even where fairly complex
machinery is involved—[that] are so bizarre that the
average juror, upon hearing the particulars, might rea-
sonably think: Whatever the user may have expected
from that contraption, it certainly wasn’t that. . . .
Accordingly, the ordinary consumer expectation test
[would be] appropriate when the everyday experience
of the particular product’s users permits the inference
that the product did not meet minimum safety expecta-
tions.’’ (Citation omitted; internal quotation marks omit-
ted.) Id., 222. In other words, the ordinary consumer
expectation test would be appropriate when the inci-
dent causing injury is so bizarre or unusual that the
jury would not need expert testimony to conclude that
the product failed to meet the consumer’s expectations.
The court also indicated that instructions regarding
both tests could be given to the jury, if supported by
the evidence. Id., 223.
Potter was decided at a point in time when Connecti-
cut design defect jurisprudence was not well developed.
Indeed, as the present case illustrates, because actions
under our liability act often have been brought in federal
court, this court has had limited opportunities to do
so. Subsequent case law and commentary has indicated
that Potter was not clear as to when resort to each test
would be appropriate and under what circumstances
both tests properly could be submitted to a jury. See
generally D. Fisher, ‘‘Connecticut’s Jury Instruction on
Design Defect Is Defective: A Second Look at Potter v.
Chicago Pneumatic Tool,’’ 84 Conn. B.J. 325 (2010)
(complaining that Potter left uncertainties); J. Farley
et al., ‘‘Recent Developments in Connecticut Products
Liability Law: Breaking New Ground in Design Defect
Cases,’’ 73 Conn. B.J. 41, 41–44 (1999) (same); compare
Savage v. Scripto-Tokai Corp., 266 F. Supp. 2d 344, 350
(D. Conn. 2003) (rejecting defendant’s argument that, in
Connecticut, ordinary products are subject to ordinary
test, while complex products may be subject to modi-
fied test, as ‘‘a misreading of Potter’’), with Moss v.
Wyeth, Inc., 872 F. Supp. 2d 162, 166 (D. Conn. 2012)
(limiting modified test to complex products), Izzarelli
v. R.J. Reynolds Tobacco Co., supra, 806 F. Supp. 2d
527, 537 (treating modified test as standard for complex
product designs), and Netherlands Ins. Co. v. Tin Ceil-
ing Xpress, Inc., Superior Court, judicial district of
Windham, Docket No. CV-12-6005760-S, 2014 WL
7495053, *3 (October 30, 2014) (equating modified test
to malfunction theory). The present case is a paradigma-
tic example of the confusion left in Potter’s wake. The
defendant contends that, under Potter, only the ordinary
consumer expectation test applies to the present case
because the modified test is limited to complex designs
for which consumers lack safety expectations. The
plaintiff contends that, under Potter, the modified con-
sumer expectation test is the default test with the ordi-
nary test limited to res ipsa type cases, in which the
consumer’s minimum expectations of the product have
not been met. We have not been presented with an
opportunity since Potter to address squarely our design
defect standards. We therefore take this opportunity to
revisit Potter and dispel the ambiguity created by it,
with the advantage of hindsight informed by almost
two decades of subsequent developments in product
liability law.11
II
At the outset, we address the defendant’s contention
that our analysis must be limited to the ordinary con-
sumer expectation test because the modified consumer
expectation test falls outside of the scope of the certi-
fied question. Simply put, we disagree. The certified
question asks: ‘‘Does [comment (i) to § 402A] preclude
a suit premised on strict products liability against a
cigarette manufacturer based on evidence that the
defendant [designed] cigarettes to increase daily con-
sumption without regard to the resultant increase in
exposure to carcinogens, but in the absence of evidence
of adulteration or contamination?’’ As we have
explained in part I of this opinion, § 402A of the
Restatement (Second) is the governing standard for
both tests and the definition in comment (i) of unreason-
ably dangerous plays a role in each test. See D’Ascanio
v. Toyota Industries Corp., 309 Conn. 663, 673 n.5,
72 A.3d 1019 (2013) (citing standard under § 402A as
governing all strict product liability actions); see also
Reed v. Tiffin Motor Homes, Inc., 697 F.2d 1192, 1197
(4th Cir. 1982) (risk-utility test ‘‘finds its roots in [c]om-
ment [i] to § 402A’’). Even if, however, the modified
consumer expectation test did not fall within the scope
of the certified question, we may reformulate a question
certified to us. See General Statutes § 51-199b (k). Pur-
suant to § 51-199b (f) (3), the Second Circuit invited us
to modify the question as necessary or answer other
questions that we deem relevant. See Izzarelli v. R.J.
Reynolds Tobacco Co., supra, 731 F.3d 169. Accordingly,
it is proper for us to consider the scope and application
of the modified consumer expectation test as it bears
on our resolution of the present case.
For the reasons set forth subsequently, we reach the
following conclusions regarding the standards for a
strict product liability action based on defective design
generally and in the present case. Under Potter, the
modified consumer expectation test is our primary test.
The ordinary consumer expectation test is reserved for
cases in which the product failed to meet the ordinary
consumer’s minimum safety expectations, such as res
ipsa type cases. A jury could not reasonably conclude
that cigarettes that cause cancer fail to meet the con-
sumer’s minimum safety expectations. Therefore, the
plaintiff was required to proceed under the modified
consumer expectation test. Comment (i) to § 402A of
the Restatement (Second) does not present a per se
bar to recovery under the modified consumer expecta-
tion test. Accordingly, the answer to the certified ques-
tion is ‘‘no.’’
To begin, we acknowledge that there is language in
Potter, as well as in subsequent Connecticut case law,
that could support each of the following interpretations
of our strict liability standards for design defects: (1)
the ordinary consumer expectation test is the primary
test, with the modified consumer expectation test
reserved exclusively for complex product designs for
which an ordinary consumer could not form safety
expectations (simple/complex divide); (2) the modified
consumer expectation test is the default test, with the
ordinary consumer expectation test reserved for prod-
ucts that fail to meet minimum safety expectations; and
(3) a plaintiff may elect to proceed under either test or
both tests, such that, even if the claim fails under the
ordinary consumer expectation test, the plaintiff may
prevail under the modified consumer expectation test
with the assistance of expert testimony.12
We are not persuaded that Potter intended to draw
a simple/complex divide. The court in Potter pointed
to the problem in proving consumers’ safety expecta-
tions for complex products because that concern was
implicated in the case before the court and was the
most obvious misfit for the ordinary consumer expecta-
tion test. Potter involved pneumatic hand tools alleged
to be defective because they exposed users to excessive
vibration, which in turn caused permanent vascular and
neurological damage to the users’ hands. Potter v. Chi-
cago Pneumatic Tool Co., supra, 241 Conn. 202–204.
The plaintiffs relied on expert testimony from various
engineers and industry standards to prove their case.13
Id., 204–206. Notably, although concerns about proof
for complex products was foremost in the court’s mind
when adopting the modified test, the court stated no
limitations on the circumstances in which that test
could be applied. Instead, all of the limitations dis-
cussed were in reference to the application of the ordi-
nary consumer expectation test. See id., 222–23 (The
court cited to bizarre accidents as examples of when
resort to the ordinary consumer test would be appro-
priate, and noted: ‘‘[T]he jury should engage in the risk-
utility balancing required by our modified consumer
expectation test when the particular facts do not rea-
sonably permit the inference that the product did not
meet the safety expectations of the ordinary consumer.
. . . Furthermore, instructions based on the ordinary
consumer expectation test would not be appropriate
when, as a matter of law, there is insufficient evidence
to support a jury verdict under that test. . . . In such
circumstances, the jury should be instructed solely on
the modified consumer expectation test we have articu-
lated today.’’ [Citations omitted.]).
Moreover, a simple/complex divide would not be
ideal because the line between these categories is not
always clear. See id., 269 n.2 (Berdon, J., concurring)
(criticizing majority for failure to provide such guid-
ance); D. Fisher, supra, 84 Conn. B.J. 333 (‘‘it would be
helpful to provide guidance as to how the court decides
whether a case is ‘complex’ or ‘simple’ ’’ [emphasis in
original]). Indeed, one could readily categorize the
defendant’s Salem cigarettes as a complex product
because of the hundreds of ingredients incorporated
into Salem cigarettes, as well as the myriad physical,
chemical and biochemical variables that were consid-
ered in designing that product. Cf. Evans v. Lorillard
Tobacco Co., 465 Mass. 411, 428, 990 N.E.2d 997 (2013)
(noting that evidence established that cigarette is
‘‘highly engineered product’’); Smith v. Brown & Wil-
liamson Tobacco Corp., 275 S.W.3d 748, 796 (Mo. App.
2008) (same). Alternatively, one could view the defen-
dant’s cigarettes as a simple product if characterized
as nothing more than a nicotine delivery system that
carries a known risk of causing cancer.
We observe that other jurisdictions that apply both
a consumer expectation test and a risk-utility test have
rejected the simple/complex divide. See, e.g., Mikolajc-
zyk v. Ford Motor Co., 231 Ill. 2d 516, 528–41, 901 N.E.2d
329 (2008) (rejecting argument that risk-utility test is
only test to be applied if product is complex and if
injury occurred in circumstances unfamiliar to average
consumer and that consumer expectation test is
reserved for cases involving simple products or every-
day circumstances); Calles v. Scripto-Tokai Corp., 224
Ill. 2d 247, 250, 864 N.E.2d 249 (2007) (‘‘In Illinois, two
tests are employed when determining whether a prod-
uct is unreasonably dangerous under a strict liability
design-defect theory—the consumer-expectation test
and the risk-utility test. In this case, we are asked to
consider whether there is a ‘simple product’ exception
to the application of the risk-utility test. That is, we must
decide whether a product which is deemed ‘simple’ and
its dangers ‘open and obvious’ will be per se exempt
from the risk-utility test and subject only to the con-
sumer-expectation test. We decline to adopt such a per
se rule.’’); see also Soule v. General Motors Corp., 8
Cal. 4th 548, 568–69, 882 P.2d 298, 34 Cal. Rptr. 2d 607
(1994) (The court rejected the defendant’s argument
‘‘that the consumer expectations test is improper when-
ever . . . a complex product, or technical questions of
causation are at issue. Because the variety of potential
product injuries is infinite, the line cannot be drawn as
clearly as [the defendant] proposes. But the fundamen-
tal distinction is not impossible to define. The crucial
question in each individual case is whether the circum-
stances of the product’s failure permit an inference that
the product’s design performed below the legitimate,
commonly accepted minimum safety assumptions of its
ordinary consumers.’’); Soule v. General Motors Corp.,
supra, 570 (explaining that risk-utility test was only
proper test in that case, not because product was com-
plex but because jury required expert testimony to
determine whether product was not reasonably safe).
Although some of the shortcomings of the ordinary
consumer expectation test have been best illustrated
in relation to complex designs, the concerns with this
test have never been limited to such designs. See, e.g.,
J. Beasley, Products Liability and the Unreasonably
Dangerous Requirement (1981) p. 88 (asserting that
consumer expectation test has ‘‘little logical application
to new products, where no expectation of safety may
have developed, or to obscure products with a limited
market, where the number of consumers is not condu-
cive to a clear consensus,’’ and also noting opposite
problem, that ‘‘if an entire industry rejects a safe design
and uses an unsafe one, the unsafe one may have
become expected’’); see also S. Birnbaum, ‘‘Unmasking
the Test for Design Defect: From Negligence [to War-
ranty] to Strict Liability to Negligence,’’ 33 Vanderbilt L.
Rev. 593, 613–15 (1980) (discussing generally applicable
concerns with ordinary consumer expectation test).
One significant concern has been that the ordinary con-
sumer expectation test, which deems unreasonable
only those dangers that would not be anticipated by an
ordinary consumer, could preclude recovery whenever
a product’s dangers were open and obvious. W. Keeton
et al., Prosser and Keeton on the Law of Torts (5th Ed.
1984) § 99, pp. 698–99; A. Weinstein et al., Products
Liability and the Reasonably Safe Product (1978) pp.
45–46 (‘‘The difficulty with [the ordinary consumer
expectation] test is that it suggests that a manufacturer
has fulfilled all his duties to the consumer if the prod-
uct’s dangers are open and obvious. In many instances
manufacturers have been absolved from liability when
an obvious danger caused serious injury, even though
that injury could have been averted by a design modifi-
cation that would not have added significantly to the
cost of the product or impaired its usefulness.’’).
The court in Potter had no occasion to address this
concern. Nonetheless, it is evident that limiting the mod-
ified test to complex products for which the consumer
could not form safety expectations would be antitheti-
cal to the public policies informing our product liability
law. A consequence of such a limitation would be to
immunize manufacturers even when they readily could
have reduced or eliminated the product’s danger. It
could also immunize manufacturers for design deci-
sions that increase the risk of known dangers, as in
the present case. Our legislature’s express rejection
of comparative or contributory negligence as a bar to
recovery in a strict liability action would be in tension
with a sweeping immunity based solely on the consum-
er’s knowledge. Cf. Calles v. Scripto-Tokai Corp., supra,
224 Ill. 2d 262 (reaching same conclusion in light of
legislature’s rejection of assumption of risk as bar to
strict products liability). Moreover, Potter expanded our
product liability tests to remove impediments to recov-
ery.14 Cf. 1 D. Owen & M. Davis, supra, § 8.4, pp. 715–16
(‘‘[a]lthough the consumer expectations standard was
conventionally viewed as more protective to plaintiffs
than the risk-utility standard, it now is clear that courts
have used the consumer expectations test most fre-
quently to deny recovery to plaintiffs in cases involving
obvious design hazards’’ [emphasis in original; foot-
note omitted]).
More fundamentally, providing such immunity would
remove an important incentive to improving product
safety. For this reason, there has been a clear and over-
whelming trend in other jurisdictions to allow consum-
ers to pursue defective product design claims despite
open and obvious dangers, usually under a multifactor
risk-utility test. See Restatement (Third), supra, § 2,
reporters’ note, comment (d) (IV) (C), pp. 84–87; see,
e.g., Barker v. Lull Engineering Co., supra, 20 Cal. 3d
425 (‘‘we flatly rejected the suggestion that recovery in
a products liability action should be permitted only if
a product is more dangerous than contemplated by the
average consumer, refusing to permit the low esteem
in which the public might hold a dangerous product to
diminish the manufacturer’s responsibility for injuries
caused by that product’’ [emphasis in original]);
Ogletree v. Navistar International Transportation
Corp., 269 Ga. 443, 444, 500 S.E.2d 570 (1998) (‘‘The
overwhelming majority of jurisdictions have held that
the open and obvious nature of the danger does not
preclude liability for design defects. . . . Moreover,
academic commentators are almost unanimous in their
criticism of the rule.’’ [Citations omitted.]); Calles v.
Scripto-Tokai Corp., supra, 224 Ill. 2d 262 (expressing
concern that ‘‘[a]doption of a [per se] rule [excepting
simple products with open and obvious dangers from
analysis under the risk-utility test] would essentially
absolve manufacturers from liability in certain situa-
tions even though there may be a reasonable and feasi-
ble alternative design available that would make a
product safer, but which the manufacturer declines to
incorporate because it knows it will not be held liable’’);
see also 1 D. Owen et al., Products Liability (3d Ed.
2000) § 8:3, p. 447 (consumer expectation test limited
by open and obvious doctrine ‘‘perniciously rewards
manufacturers for failing to adopt cost-effective mea-
sures to remedy obviously unnecessary dangers to
human life and limb’’); J. Beasley, supra, p. 89 (‘‘One
of the greatest dangers of the [c]omment [i] [to § 402A]
standard is that it encourages the perpetuation of poor
manufacturing and design practices. The more uni-
formly a certain shoddiness is allowed to go unre-
strained, the more it comes to be expected. . . . The
trouble with a ‘consumer expectation’ test is that it
allows an industry to set its own standards with no
check upon its own self-interest.’’).
Making the modified consumer expectation test our
default test for design defect claims, and reserving the
ordinary consumer expectation test for those products
that fail to meet legitimate, commonly accepted mini-
mum safety expectations, provides a safety incentive
that is consonant with our state’s public policies. More-
over, such a framework is the only one that can be
reconciled with this court’s direction in Potter that the
jury could be instructed on both tests if supported by
the evidence. Allowing the jury to consider both tests
is only logical if the standard, and not merely the nature
of proof, differs under each test. If the two tests were
merely alternative methods of proving the same stan-
dard—the product failed to meet the ordinary consum-
er’s expectations—then a jury’s verdict that this
standard was not met under one test could not logically
be reconciled with a verdict that this standard was met
under the other test. Either the product met the ordinary
consumer’s expectations, or it did not. If, however, one
test sets the floor for recovery—a product that meets
minimum safety expectations—then a verdict for the
defendant on that test logically could be reconciled
with a plaintiff’s verdict on a test that sets a higher
standard. Cf. Barker v. Lull Engineering Co., supra, 20
Cal. 3d 426 n.7 (‘‘The flaw in the . . . analysis [of the
Restatement (Second)] . . . is that it treats such con-
sumer expectations as a ‘ceiling’ on a manufacturer’s
responsibility under strict liability principles, rather
than as a ‘floor.’ . . . [P]ast . . . decisions establish
that at a minimum a product must meet ordinary con-
sumer expectations as to safety to avoid being found
defective.’’ [Emphasis omitted.]). In other words, a
product might meet the consumer’s minimum safety
expectations because the product’s dangers are known
or obvious but nonetheless be defective because it
could have been designed to be less dangerous without
unreasonably compromising cost or utility (e.g., a table
saw lacking a safety guard). See id., 430 (‘‘a product
may be found defective in design, even if it satisfies
ordinary consumer expectations, if through hindsight
the jury determines that the product’s design embodies
‘excessive preventable danger,’ or, in other words, if
the jury finds that the risk of danger inherent in the
challenged design outweighs the benefits of such
design’’).15
Accordingly, we hold that, under our product liability
law, the ordinary consumer expectation test is reserved
for those limited cases in which a product fails to meet
a consumer’s legitimate, commonly accepted minimum
safety expectations. Expert testimony on product
design is not needed to prove the product’s defect, nor
is the utility of the product’s design an excuse for the
undisclosed defect. See Soule v. General Motors Corp.,
supra, 8 Cal. 4th 567 (‘‘the consumer expectations test
is reserved for cases in which the everyday experience
of the product’s users permits a conclusion that the
product’s design violated minimum safety assumptions,
and is thus defective regardless of expert opinion about
the merits of the design’’ [emphasis omitted]); A. Twer-
ski & J. Henderson, ‘‘Manufacturers’ Liability for Defec-
tive Product Designs: The Triumph of Risk-Utility,’’ 74
Brook. L. Rev. 1061, 1108 (2009) (‘‘overwhelming major-
ity of cases that rely on consumer expectations as the
theory for imposing liability do so only in res ipsa-like
situations in which an inference of defect can be drawn
from the happening of a product-related accident’’). All
other cases should be determined under the modified
consumer expectation test.
With this clarification of our law, it is evident that
the plaintiff in the present case properly could proceed
only under the modified consumer expectation test. A
cigarette that exposes the user to carcinogens and the
attendant risk of cancer cannot be said to fail to meet
an ordinary consumer’s legitimate, commonly accepted
minimum safety expectations.16 To establish the defect,
the plaintiff’s case required expert testimony on ciga-
rette design and manufacture, as well as the feasibility
of an alternative design. The defendant contends, how-
ever, that applying the modified consumer expectation
test to cigarettes would be improper because it would
effectively result in a de facto ban on cigarettes, in
violation of our legislature’s ‘‘ratifi[cation]’’ of this
court’s adoption of comment (i) to § 402A in our prod-
uct liability act and Congress’ declaration that cigarettes
are a legal product. See Food & Drug Administration
v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
136–37, 120 S. Ct. 1291, 146 L. Ed. 2d 121 (2000) (con-
cluding that, because Congress had demonstrated that
it foreclosed removal of tobacco products from market,
Federal Drug Administration [FDA] was precluded from
regulating tobacco products when FDA’s statutory man-
date would require it to ban them in light of its determi-
nation that such products cannot be made safe for
intended use). We are not persuaded.
Our legislature did not ratify this court’s previous
adoption of comment (i) to § 402A when it enacted the
liability act. Neither § 402A nor comment (i) is expressly
or implicitly referenced in the liability act. Cf. S.C. Code
Ann. § 15-73-30 (2005) (‘‘[c]omments to § 402A of the
Restatement of Torts, Second, are incorporated herein
by reference thereto as the legislative intent of this
chapter’’);17 Wn. Rev. Code Ann. § 7.72.030 (3) (West
2007) (‘‘[i]n determining whether a product was not
reasonably safe under this section, the trier of fact shall
consider whether the product was unsafe to an extent
beyond that which would be contemplated by the ordi-
nary consumer’’). Potter plainly reflects this court’s
understanding that, except where preempted by the
liability act, the legislature left the development of prod-
uct liability standards to the common law. The court
would have been required to reject the defendant’s
request in Potter to adopt the Restatement (Third) stan-
dard had the legislature effectively codified comment
(i) to § 402A of the Restatement (Second). Instead, the
court rejected the Restatement (Third) standard after
considering its merits.
With regard to the defendant’s preemption argument,
we have two responses. Insofar as this argument impli-
cates federal preemption and evidentiary issues, we
believe such matters should be resolved by the Second
Circuit. Insofar as the defendant contends that applica-
tion of the modified consumer expectation test to cir-
cumstances like the present case could effectively allow
a jury to ban commonly used and useful products, thus
usurping our legislature’s authority over such matters,
we find such concerns too speculative to warrant a
contrary rule. We have every confidence that the possi-
bility of such outlier verdicts could be addressed
through a motion for judgment notwithstanding the ver-
dict. Cf. Calles v. Scripto-Tokai Corp., 358 Ill. App. 3d
975, 982, 832 N.E.2d 409 (2005) (‘‘in very extreme cases
[i.e., products with very low production costs], courts
may make the determination that the cost-benefit analy-
sis under the risk-utility test strongly favors the manu-
facturer and there is no need to send the case to [the]
jury because no reasonable jury could find for the plain-
tiff’’ [internal quotation marks omitted]), aff’d, Calles
v. Scripto-Tokai Corp., 224 Ill. 2d 247, 864 N.E.2d 249
(2007); Hernandez v. Tokai Corp., 2 S.W.3d 251, 261
(Tex. 1999) (‘‘the issue of whether the product is unrea-
sonably dangerous as designed may nevertheless be a
legal one if reasonable minds cannot differ on the risk-
utility analysis considerations’’).
Finally, we note that other jurisdictions applying
some form of risk-utility test to design defect claims
against cigarette manufacturers have found no impedi-
ment to the application of that test if the plaintiff identi-
fies some defect specific to the cigarette brand(s) at
issue and/or a reasonably safer alternative.18 See Philip
Morris USA, Inc. v. Arnitz, 933 So. 2d 693, 695 (Fla.
App.) (affirming judgment in favor of plaintiff on design
defect theory based on claim that, while plaintiff knew
that smoking posed health risk, consumers did not
know of increased risk posed by defects in product
where manufacturer: used additives or flavorants to
overcome body’s natural defenses to inhaling smoke,
thus making cigarettes easier to inhale; used as many
as 110 to 115 total additives and that some additives
changed form of nicotine to freebase nicotine, which
can lead to greater nicotine addiction; and used ‘‘ ‘flue-
cured’ ’’ tobacco, which increased level of carcinogenic
tobacco specific nitrosamines in tobacco), review
denied, 946 So. 2d 1071 (Fla. 2006); Evans v. Lorillard
Tobacco Co., supra, 465 Mass. 428–29, 431 (The court
affirmed the verdict for the plaintiff who established
that cigarettes are a highly engineered product, that
the defendant manipulated its product to give smokers
particular doses of tar and nicotine, that the defendant
maintained the addictive level of nicotine, and that the
plaintiff had proposed as a reasonable alternative a
cigarette without menthol in which the carcinogens in
the tar are at a level that is relatively safe and where
the level of nicotine is nonaddictive. ‘‘We do not accept
[the defendant’s] implicit suggestion that every ciga-
rette, to be a cigarette, must contain levels of tar that
cause a high risk of cancer and levels of nicotine that
are addictive.’’); Haglund v. Philip Morris, Inc., Docket
No. 012367C, 2009 WL 3839004, *1, 3, 9–10 (Mass. Super.
October 20, 2009) (The court denied a motion for sum-
mary judgment, applying a feasible, safer alternative
design test under § 2 of the Restatement [Third] of Torts
under an implied warranty theory, where the plaintiff
alleged that the defendant manipulated nicotine levels
via cigarette construction technology and tobacco
blend selection, increasing free nicotine and increasing
inhalability through tobacco processing, including the
specification of flavorants, additives and smoke chemis-
try. The jury must weigh the mechanical feasibility of
a safer alternative design, the financial cost of an
improved design, and the adverse consequences to the
product and to the consumer that would result from
an alternative design.); Smith v. Brown & Williamson
Tobacco Corp., supra, 275 S.W.3d 796 (jury that was
not limited in factors to determine if defective product
unreasonably dangerous properly returned verdict for
plaintiff where evidence went beyond categorical attack
on danger of cigarettes in general and instead demon-
strated specific design choices that had potential to
affect plaintiff’s health during time period she smoked,
including evidence that cigarettes were highly engi-
neered product, different from other cigarettes, con-
tained menthol to numb throat and make it easier to
inhale more deeply and allowed more nicotine to be
delivered to body); Tomasino v. American Tobacco Co.,
23 A.D. 3d 546, 548–49, 807 N.Y.S.2d 603 (2005)
(concluding that defendants’ motions for summary
judgment were properly denied and rejecting their con-
tention that they were entitled to judgment because
cigarettes were in condition reasonably contemplated
by ultimate consumer); Miele v. American Tobacco Co.,
2 A.D. 3d 799, 801, 805, 770 N.Y.S.2d 386 (2003)
(The court reversed the lower court’s ruling granting
the defendants’ motions for summary judgment because
the evidence that ‘‘the tobacco companies opted not to
develop, pursue, or exploit available technologies to
reduce the toxins in cigarettes which cause disease,
sufficed to raise an issue of fact as to whether the
foreseeable risk of harm posed by cigarettes could have
been reduced or avoided by the adoption of a reason-
able alternative design by the manufacturer respon-
dents. It is ineluctable that, based upon the evidence
presented by the plaintiff, a jury may determine that
the tobacco companies’ objective was to entrap the
cigarette smoker to preserve and enhance their eco-
nomic objectives.’’); Semowich v. R.J. Reynolds
Tobacco Co., Docket No. 86-CV-118, 1988 WL 86313,
*3–4 (N.D.N.Y. August 18, 1988) (rejecting defendant’s
argument that comment [i] to § 402A of the Restatement
[Second] precluded plaintiff’s claim because, to extent
that comment [i] suggests cigarettes cannot be defec-
tive, it does not represent New York law, but noting
that plaintiff must present evidence that product, as
designed, was not reasonably safe because there was
substantial likelihood of harm and it was feasible to
design product in safer manner).
Finally, we turn to the question of whether comment
(i) to § 402A of the Restatement (Second) is a per se bar
to the plaintiff’s recovery under the modified consumer
expectation test. We conclude that it is not.
Comment (i) to § 402A serves a limited role under
the modified consumer expectation test. Although the
modified test asks the jury to weigh various factors
through the ultimate lens of the consumer’s expecta-
tions, as a functional and practical matter that weighing
process supplants the definition in comment (i) of
unreasonably dangerous.19 Cf. Wright v. Brooke Group
Ltd., 652 N.W.2d 159, 169–70 (Iowa 2002) (concluding
that comment [i] to § 402A does not apply after court
adopted risk-utility test). In other words, the factors
that the court in Potter identified essentially provide the
jury with information that a fully informed consumer
would know before deciding whether to purchase the
product. See Potter v. Chicago Pneumatic Tool Co.,
supra, 241 Conn. 221. When the consumer has specific
product expectations that differ from those factors,
those too may be factored into the weighing process.
It could be that, in a given case, the consumer’s expecta-
tions of the product would be the determinative factor.
See Blue v. Environmental Engineering, Inc., supra,
215 Ill. 2d 87 (‘‘[u]nder the risk-utility test, the open
and obvious nature of the risk is just one factor to be
considered within this range of considerations and it
will only serve to bar the liability of the manufacturer
where it outweighs all other factors to be considered
in weighing the inherent risks against the utility of the
product as manufactured’’); Delaney v. Deere & Co.,
268 Kan. 769, 792–93, 999 P.2d 930 (2000) (rejecting
open and obvious danger as precluding recovery and
instead making that fact merely one of several informing
consumer’s expectations); Evans v. Lorillard Tobacco
Co., supra, 465 Mass. 428 (noting that under risk-utility
test, ‘‘because reasonable consumer expectations are
simply one of many factors that may be considered and
not necessarily the determinative factor, the plaintiff
was not obligated to prove that Newport cigarettes were
more dangerous than consumers reasonably
expected’’); Tomasino v. American Tobacco Co., supra,
23 A.D. 3d 548–49 (‘‘The mere fact that a risk
presented by a product design is open and obvious, or
generally known, and that the product thus satisfies
expectations . . . may substantially influence or even
be ultimately determinative on risk-utility balancing in
judging whether the omission of a proposed alternative
design renders the product not reasonably safe. It fol-
lows that, while disappointment of consumer expecta-
tions may not serve as an independent basis for allowing
recovery under [the design defect theory], neither may
conformance with consumer expectations serve as an
independent basis for denying recovery. Such expecta-
tions may be relevant in both contexts, but in neither
are they controlling . . . .’’ [Citations omitted; internal
quotation marks omitted.]).
To allow the ordinary consumer’s awareness of the
product’s potential danger to preclude recovery as a
matter of law, however, would make Connecticut an
outlier and defeat our intention in relegating the ordi-
nary consumer expectation test to a more limited role.20
Indeed, irrespective of the incorporation of the defini-
tion of unreasonably dangerous from comment (i) to
§ 402A into the modified test, it would be contrary to
the public policy of this state to incorporate the excep-
tions in comment (i) insofar as they would immunize
a manufacturer from liability for manipulating the inher-
ently dangerous properties of its product to pose a
greater risk of danger to the consumer. See With-
erspoon v. Philip Morris, Inc., 964 F. Supp. 455, 466
(D.D.C. 1997) (‘‘The infamous comment [i] following
§ 402A appears to be on very shaky ground currently.
Attitudes and knowledge about cigarettes have changed
immensely since the comment was written and there
is at least some authority that comment [i] is no longer
a reasonable explanation of unreasonably dangerous.’’).
We answer the certified question ‘‘no.’’
No costs shall be taxed in this court to either party.
In this opinion EVELEIGH, ROBINSON and VERTE-
FEUILLE, Js., concurred.
1
Comment (i) to § 402A of the Restatement (Second) of Torts provides
in relevant part: ‘‘The rule stated in this [s]ection applies only where the
defective condition of the product makes it unreasonably dangerous to the
user or consumer. . . . 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. . . .’’
2
Although not essential to our analysis, we note our interpretation of
two phrases in the certified question: ‘‘purposefully manufactured’’ and
‘‘adulteration or contamination.’’ First, we assume that the Second Circuit
used ‘‘purposefully manufactured’’ to mean designed, thus distinguishing a
design defect from a manufacturing defect. A manufacturing defect cannot
be purposeful, and the plaintiff only proceeded under the theory of a design
defect. A design defect occurs when the product is manufactured in confor-
mity with the intended design but the design itself poses unreasonable
dangers to consumers. Second, we assume that ‘‘adulteration or contamina-
tion’’ was intended to mean the inclusion of ingredients that are not found in
other cigarette brands or that create a different danger than those commonly
known to arise from use of that product. See, e.g., The American Heritage
Dictionary of the English Language (5th Ed. 2011) (defining adulterate as
‘‘[t]o make impure by adding extraneous, improper, or inferior ingredients,’’
and defining contaminate as ‘‘[t]o make impure or unclean; corrupt by
contact or mixture’’); Merriam-Webster’s Collegiate Dictionary (11th Ed.
2003) (defining adulterate as ‘‘to corrupt, debase, or make impure by the
‘‘to soil, stain, corrupt, or infect by contact or association . . . to make
inferior or impure by admixture . . . to make unfit for use by the introduc-
tion of unwholesome or undesirable elements’’). Although some courts have
determined that chemical additives can render a cigarette ‘‘adulterated’’;
see, e.g., Naegele v. R.J. Reynolds Tobacco Co., 28 Cal. 4th 856, 864–65, 50
P.3d 769, 123 Cal. Rptr. 2d 61 (2002); the Second Circuit could not have
ascribed a similar meaning because there was evidence in the present case
of scores of additives in the cigarette brand at issue. See footnote 4 of
this opinion.
3
Addiction liability refers to the percentage of people who try a drug and
become addicted to it. According to evidence produced before the District
Court, addiction liability for nicotine is approximately 80 to 85 percent. The
level of addiction is impacted by various factors, including genetics, stress
level, socioeconomic status, and age of initiation. See Izzarelli v. R.J. Rey-
nolds Tobacco Co., supra, 806 F. Supp. 2d 521 n.2.
4
The plaintiff introduced at trial a twenty-four page list of hundreds of
additives used by the defendant in Salem’s manufacture, among which were
solvents, glue, and coolants, including Freon.
5
In addition to her product liability claim, the plaintiff alleged a violation
of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes
§ 42-110a et seq., for unlawful youth marketing. The District Court granted
the defendant’s motion for judgment on that count, but considered evidence
relating to youth marketing in rejecting the defendant’s challenges to the
verdict under the ordinary consumer expectation test. The judgment on the
CUTPA count was not challenged on appeal to the Second Circuit.
6
In light of this verdict, the plaintiff objected to the formulation of the
certified question because she contended that comment (i) to § 402A of the
Restatement (Second) applies only to product liability claims premised on
strict liability and not to those premised on negligence. In another product
liability action brought against a different cigarette manufacturer after the
present case commenced, the United States District Court for the District
of Connecticut certified questions to this court regarding whether comment
(i) to § 402A applies to a product liability claim for negligence under our
act as well as whether punitive damages awarded under that act are common-
law punitive damages limited to litigation costs or statutory punitive dam-
ages. See Bifolck v. Philip Morris, Inc., Docket SC 19310. That case has
been argued and the decision is pending.
7
The total amount of the judgment awarded to the plaintiff was
$28,079,626.27, which, in addition to compensatory damages, included
$3,970,289.87 in punitive damages, $15,777,352 in prejudgment offer of judg-
ment interest, and $349,739.40 in postjudgment offer of judgment interest.
8
Comment (i) to § 402A deems whiskey containing a dangerous amount
of fusel oil to be unreasonably dangerous. Fusel oil is produced during
alcoholic fermentation. 5 The New Encyclopaedia Britannica (15th Ed. 1998)
p. 60. It is mildly toxic, but in small concentrations gives the whiskey
flavor and body. A. Connelly, ‘‘The Science and Art of Whisky Making,’’ The
Guardian, August 27, 2010, available at http://www.theguardian.com/science/
blog/2010/aug/23/science-art-whisky-making.
9
The American Law Institute adopted the final version of the Restatement
(Third) of Torts shortly after this court rendered its decision in Potter. As
the concurring opinion explains, the Restatement (Third) made a point of
responding to the criticism in Potter of its test and explaining how its
final draft addressed those criticisms. See Restatement (Third), supra, § 2,
reporters’ note, comment (d) (II) (C), pp. 71–73.
10
‘‘Under this formulation, a sample jury instruction could provide: ‘A
product is unreasonably dangerous as designed, if, at the time of sale, it is
defective to an extent beyond that which would be contemplated by the
ordinary consumer. In determining what an ordinary consumer would rea-
sonably expect, you should consider the usefulness of the product, the
likelihood and severity of the danger posed by the design, the feasibility of
an alternative design, the financial cost of an improved design, the ability
to reduce the product’s danger without impairing its usefulness or making
it too expensive, and the feasibility of spreading the loss by increasing the
product’s price or by purchasing insurance, and such other factors as the
claimed defect indicate are appropriate.’ ’’ Potter v. Chicago Pneumatic Tool
Co., supra, 241 Conn. 221 n.15.
11
The concurring justices would go further and take this occasion to adopt
the test in the Restatement (Third) of Torts. We decline to consider that
issue in the present case principally because neither party sought to have
the jury charged under the Restatement (Third) test, which would have
required the jury to make a finding that was not required under either of
our current tests, namely, that there was a feasible, safer alternative.
Although the plaintiff did present evidence on that matter, the jury was free
to conclude that Salem cigarettes are unreasonably dangerous even if it did
not credit that evidence. Therefore, we conclude that it is appropriate and
sufficient in the present case to clarify the circumstances under which the
existing tests apply rather than adopt a new legal standard.
12
We note that our case law subsequent to Potter also recognizes the
malfunction theory as a basis for establishing strict product liability. See
White v. Mazda Motor of America, Inc., 313 Conn. 610, 99 A.3d 1079 (2014);
Metropolitan Property & Casualty Ins. Co. v. Deere & Co., 302 Conn. 123,
25 A.3d 571 (2011). ‘‘The malfunction theory allows a plaintiff in a product
liability action to rely on circumstantial evidence to support an inference
that an unspecified defect attributable to a product seller was the most
likely cause of a product malfunction when other possible causes of the
malfunction are absent.’’ White v. Mazda Motor of America, Inc., supra,
612. This theory does not fall squarely within either the ordinary or modified
consumer expectation test, but to some extent overlaps with both tests.
See id., 622, 632–33 n.9. It applies when the product fails to perform as
manifestly intended, which is at issue under the ordinary test, but expert
testimony also may be required in certain cases, which is relevant under
the modified consumer test. See id., 632 n.9 (‘‘The malfunction theory is
not an alternative to expert testimony, nor is it proven simply on the basis
of the expectations of the consumer. The malfunction theory is an alternative
to proving the existence of a specific defect that is based on the argument
that a malfunction resulted from an unspecified defect in the product
because there is no other reasonably possible cause of the malfunction.
. . . In fact, we have made clear that many claims under the malfunction
theory will require expert testimony.’’ [Citation omitted.]). Because the
defect is unspecified (and perhaps unspecifiable), it ‘‘does not depend on
a design or manufacturing defect.’’ Id., 633 n.9. Neither party claims that
this theory applies to the present case, and we therefore need not address it.
13
Although the plaintiffs’ evidence and theory of the case set forth in
Potter would seem to fall squarely within the purview of the modified
consumer expectation test, we presume that the court in Potter analyzed
the defendants’ claim challenging the sufficiency of the evidence to establish
a design defect under the ordinary consumer expectation test because: (a)
it was the only standard recognized at the time of trial; (b) the modified
consumer expectation test still asked the jury to decide whether the product
failed to meet those expectations; and (c) the defendant had requested an
instruction requiring the plaintiff to prove a feasible alternative design, a
requirement that this court rejected. Therefore, we presume that the court
in Potter implicitly adopted the modified consumer expectation test prospec-
tively.
14
We also note that precluding liability solely because the product’s dan-
gers were open and obvious would be in tension with this court’s resolution
of an issue in Potter. The court in Potter held that a jury may properly
consider ‘‘state of the art’’ evidence—’’the level of relevant scientific, techno-
logical and safety knowledge existing and reasonably feasible at the time
of design’’—in determining whether a product was defectively designed and
unreasonably dangerous. Potter v. Chicago Pneumatic Tool Co., supra, 241
Conn. 250. The court underscored that ‘‘state of the art refers to what is
technologically feasible, rather than merely industry custom. . . . Obvi-
ously, the inaction of all the manufacturers in an area should not be the
standard by which the state of the art should be determined. . . . Accord-
ingly, [a] manufacturer may have a duty to make products pursuant to a
safer design even if the custom of the industry is not to use that alternative.’’
(Citations omitted; internal quotation marks omitted.) Id., 250–51. The fact
that an industry universally may design a product in a manner that poses
a particular danger may provide notice to consumers of such a danger. To
preclude liability due to such notice would negate the evidentiary value of
the state of the art.
15
We note that Illinois avoids this problem through a different approach.
That state allows the parties’ theory of the case and evidence to dictate
which test applies. If the evidence under either party’s theory implicates the
risk-utility test, that broader test, which incorporates the factor of consumer
expectations, is the sole test to be applied by the finder of fact. See Mikolajc-
zyk v. Ford Motor Co., supra, 231 Ill. 2d 556. Thus, because Illinois does
not allow a jury to make findings on both tests, there is no risk of an
inconsistent verdict.
16
We recognize that a different conclusion might be warranted in cases
in which the plaintiff (or decedent) began smoking before warning labels
were mandated by federal law. See Guilbeault v. R.J. Reynolds Tobacco
Co., 84 F. Supp. 2d 263, 271 (D.R.I. 2000) (‘‘most of the courts considering
the common knowledge of the general disease-related health risks of smok-
ing have placed common knowledge at least at 1966 and some before’’);
see, e.g., Tillman v. R.J. Reynolds Tobacco Co., 871 So. 2d 28, 33 (Ala. 2003);
Miele v. American Tobacco Co., 2 A.D. 3d 799, 802, 770 N.Y.S.2d 386
(2003); Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1194
(11th Cir. 2004); Insolia v. Philip Morris, Inc., 216 F.3d 596, 600 (7th Cir.
2000); Estate of White v. R.J. Reynolds Tobacco Co., 109 F. Supp. 2d 424,
432–33 (D. Md. 2000).
17
We note that, even when a legislature has adopted the Restatement
(Second) of Torts and identified its comments as legislative intent, a court
has concluded that such action did not express an ‘‘intention to foreclose
court consideration of developments in products liability law.’’ Branham
v. Ford Motor Co., 390 S.C. 203, 220, 701 S.E.2d 5 (2010).
18
Indeed, even in jurisdictions analyzing such claims under the consumer
expectation test, courts have recognized that products liability actions prop-
erly may be brought against cigarette manufacturers if they have manipulated
the product design to be more dangerous or have made their product differ-
ent than other cigarettes. See Hearn v. R.J. Reynolds Tobacco Co., 279 F.
Supp. 2d 1096, 1106 (D. Ariz. 2003); Thomas v. R.J. Reynolds Tobacco Co.,
11 F. Supp. 2d 850, 852–53 (S.D. Miss. 1998); Burton v. R.J. Reynolds Tobacco
Co., 884 F. Supp. 1515, 1522 (D. Kan. 1995); Kotler v. American Tobacco
Co., 731 F. Supp. 50, 51–52 (D. Mass.), aff’d, 926 F.2d 1217 (1st Cir. 1990),
cert. granted and judgment vacated on other grounds, 505 U.S. 1215, 112 S.
Ct. 3019, 120 L. Ed. 2d 891 (1992); Dujack v. Brown & Williamson Tobacco
Corp., Superior Court, judicial district of Tolland, Docket No. X07-00728225-
S, 2001 WL 34133836, *1–2 (November 13, 2001); Naegele v. R.J. Reynolds
Tobacco Co., 28 Cal. 4th 856, 865, 50 P.3d 769, 123 Cal. Rptr. 2d 61 (2002);
King v. Philip Morris, Inc., Docket No. 99-C-856, 2000 WL 34016358, *8–9
(N.H. Super. November 2, 2000); Schwarz v. Philip Morris, Inc., 206 Or.
App. 20, 65–66, 135 P.3d 409 (2006), aff’d, 348 Or. 442, 235 P.3d 668 (2010).
19
A question remains whether the incorporation of the ordinary consum-
er’s expectations into our modified test as our focal point would preclude
a strict product liability claim on behalf of a foreseeable, but unintended
user. Nonetheless, we have no occasion to resolve that question in the
present case.
20
We are not oblivious to the irony that a member of an industry that
for decades disputed the addictive effect and dangerous health hazards
associated with smoking seeks to shield itself from liability by asserting
that such dangers were well-known to the ordinary consumer. As the United
States Court of Appeals for the Seventh Circuit aptly observed: ‘‘If there
were such a thing as moral estoppel, the outcome of this appeal would be
plain. For decades tobacco companies have assured the public that there
is nothing to fear from cigarettes, yet they now slough off lawsuits . . . by
professing that everybody knew all along that smoking was risky. In taking
this litigation stance, the cigarette makers either are suffering from amnesia
or are acknowledging that their propaganda over the years has been ineffec-
tual. Judicial estoppel, however, applies only to inconsistent positions
adopted in litigation, and punishing hypocrisy is something left to a court
of another realm.’’ Insolia v. Philip Morris, Inc., 216 F.3d 596, 598 (7th
Cir. 2000).