     11-3865-cv(L)
     Izzarelli v. R.J. Reynolds Tobacco Co.

 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                              August Term, 2012
 6
 7
 8    (Argued: March 18, 2013                 Decided: September 10, 2013)
 9
10             Docket Nos. 11-3865-cv(Lead) 11-3890-cv(XAP)
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   BARBARA A. IZZARELLI,
15
16                     Plaintiff-Appellee-Cross-Appellant,
17
18               - v.-
19
20   R.J. REYNOLDS TOBACCO COMPANY,
21
22                     Defendant-Appellant-Cross-Appellee.
23
24   - - - - - - - - - - - - - - - - - - - -x
25

26         Before:           JACOBS, Chief Judge, CABRANES and WESLEY,
27                           Circuit Judges.
28
29         Barbara Izzarelli sues R.J. Reynolds Tobacco Company

30   under Connecticut state law claiming that the cigarettes she

31   smoked for 25 years were defective and caused her cancer.               A

32   jury found that the cigarettes were defective, and the

33   United States District Court for the District of Connecticut

34   (Underhill, J.) entered judgment in Izzarelli’s favor.            R.J.

35   Reynolds Tobacco Company appeals the judgment, arguing that

36   Connecticut law forecloses strict products liability suits
1    against a cigarette manufacturer absent evidence that the

2    cigarettes were contaminated or adulterated.    Because this

3    question of Connecticut law is open and decisive, we certify

4    it to the Connecticut Supreme Court, and stay resolution of

5    this case in the interval.

 6                                 DAVID S. GOLUB (Jonathan M.
 7                                 Levine, Marilyn J. Ramos, on the
 8                                 brief), Silver Golub & Teitell
 9                                 LLP, Stamford, Connecticut, for
10                                 Plaintiff-Appellee-Cross-
11                                 Appellant Barbara A. Izzarelli.
12
13                                 MARK R. SEIDEN (Todd R. Geremia,
14                                 David M. Cooper, Jones Day, New
15                                 York, New York, Theodore M.
16                                 Grossman, Mark A. Belasic, Jones
17                                 Day, Cleveland, Ohio, on the
18                                 brief), Jones Day, New York, New
19                                 York, for Defendant-Appellant-
20                                 Cross-Appellee R.J. Reynolds
21                                 Tobacco Company.
22
23   DENNIS JACOBS, Chief Judge:
24
25       Barbara Izzarelli brings claims against defendant R.J.

26   Reynolds Tobacco Company (“R.J. Reynolds”) under the

27   Connecticut Products Liability Act (“CPLA”), Conn. Gen.

28   Stat. Ann. § 52-572m et seq., for strict liability and

29   negligence, arguing that the cigarettes she smoked for 25

30   years caused cancer in her larynx.1   A jury in the United

          1
              Izzarelli also brought a claim under the
     Connecticut Unfair Trade Practices Act, Conn. Gen. Stat.
     Ann. § 42-110a et seq., for unlawful youth marketing. The
                                    2
1    States District Court for the District of Connecticut

2    (Underhill, J.) found R.J. Reynolds liable (and 58 percent

3    at fault under Connecticut’s comparative negligence scheme),

4    and awarded Izzarelli $7,982,250 in compensatory damages;

5    punitive damages, which the district court calculated as

6    $3,970,289.87; and $16,127,086.40 in offer-of-judgment

7    interest.

8        R.J. Reynolds appeals the denial of its renewed motion

9    for judgment as a matter of law, arguing principally that

10   Izzarelli’s claims are foreclosed by Connecticut law and the

11   Restatement (Second) of Torts § 402A, as adopted by the

12   Connecticut Supreme Court, Giglio v. Conn. Light & Power

13   Co., 429 A.2d 486, 488 (Conn. 1980), which (R.J. Reynolds

14   argues) precludes strict products liability suits against a

15   seller of “good tobacco.”2

16


     district court granted R.J. Reynolds’s motion for summary
     judgment on that claim, and Izzarelli does not appeal that
     decision.
          2
              The parties also argue issues involving
     admissibility of evidence and punitive damages. Since we
     are certifying the principal and threshold legal issue, we
     need not decide those issues now, and will decide them
     depending on how the Connecticut Supreme Court decides the
     certified question. For this reason, we will limit our
     discussion of the facts to those relevant to the question at
     issue.
                                  3
1        Because this question is undecided under Connecticut

2    law, we certify it to the Connecticut Supreme Court and stay

3    resolution of this case in the interval.

4

5                               BACKGROUND

6        Izzarelli tried cigarettes at age twelve, in 1970.       By

7    1972, Izzarelli was smoking a pack a day of Salem Kings

8    brand cigarettes (“Salems”), manufactured by R.J. Reynolds.

9    Izzarelli smoked Salems for the next 25 years, at least two

10   packs a day.   In 1996, she was diagnosed with laryngeal

11   cancer.   After a laryngectomy in January 1997, she no longer

12   has a voice box and breathes through a tracheotomy hole in

13   her throat.    She has undergone numerous surgeries to fix

14   breathing problems, and can eat only soft foods.

15       Dr. Alexander Glassman, a psychiatrist, testified at

16   trial that Izzarelli was “severely addicted” to nicotine.

17   Other experts retained by Izzarelli testified that her

18   cancer was caused by smoking: Dr. Marshall Posner,

19   Izzarelli’s expert on cancer, testified that he was

20   “absolutely convinced” this cancer was caused by smoking,

21   and that 95 percent of laryngeal cancers are caused by

22   smoking; and Izzarelli’s treating otolaryngologist, Dr.


                                    4
1    Thomas Lesnik, testified that her cancer was caused by her

2    smoking.

3        At trial, Izzarelli introduced evidence that R.J.

4    Reynolds manufactured Salems to specifications intended to

5    get non-smokers addicted to nicotine and to get addicted

6    smokers to smoke more cigarettes without satiating their

7    addiction:

8        •      R.J. Reynolds understood that it had to accomplish

9               two things to sell more cigarettes: (1) maintain

10              smokers’ addiction by increasing the nicotine

11              “kick” felt by the smoker with each drag; and (2)

12              reduce the total nicotine level (the nicotine

13              “yield”) in cigarettes to require smokers to

14              purchase more cigarettes to fulfil their

15              addiction’s daily requirement.

16       •      R.J. Reynolds had discovered certain means to

17              alter the levels of “free nicotine” in smoke, and

18              thereby increase the nicotine “kick” by varying

19              blends, additives, filters, and papers.    Dr.

20              Grunberg testified that R.J. Reynolds used “blend

21              formation and denicotinization” to alter the

22              amount of free nicotine in Salems.



                                    5
1        •     R.J. Reynolds could manipulate the nicotine yield,

2              and indeed had lowered it from 2-3 milligrams per

3              cigarette in the 1950s and 1960s to approximately

4              1.3 milligrams per cigarette at the time of trial.

5              One internal document put the question this way:

6              “How low can we go?”       The goal was to identify the

7              lowest nicotine yield that would keep smokers

8              addicted while requiring them to smoke more

9              cigarettes to feed their addiction.      Lower yield

10             (to a point) therefore requires more smoking,

11             which increases the likelihood of cancer.

12       R.J. Reynolds elicited testimony that Izzarelli’s

13   cancer was not specific to Salems; the opinions of

14   Izzarelli’s experts would not change if she smoked a

15   different brand.    Dr. Neil Grunberg, a psychologist giving

16   expert testimony on addiction, stated that all tobacco was

17   addictive, and that nothing in Salems changes their

18   addictive nature.   Dr. Glassman, too, testified that

19   Izzarelli’s addiction did not depend on the fact that she

20   smoked Salems; any cigarettes would have had the same

21   effect.   And Dr. Lesnik testified that he did not need to

22   know what brand of cigarettes Izzarelli smoked to conclude

23   that smoking caused her cancer.

                                      6
1        At the close of Izzarelli’s case, R.J. Reynolds moved

2    for judgment as a matter of law pursuant to Rule 50 of the

3    Federal Rules of Civil Procedure.    The district court

4    reserved ruling on that motion.     After the jury returned its

5    verdict and judgment was entered in favor of Izzarelli, R.J.

6    Reynolds timely renewed that motion and, in addition, filed

7    a motion for a new trial pursuant to Rule 59 of the Federal

8    Rules of Civil Procedure.    The district court denied both

9    motions.   R.J. Reynolds appeals.

10

11                               DISCUSSION

12       We review the denial of a motion for judgment as a

13   matter of law de novo, “applying the same standards as the

14   district court to determine whether judgment as a matter of

15   law was appropriate.”   Merrill Lynch Interfunding, Inc. v.

16   Argenti, 155 F.3d 113, 120 (2d Cir. 1998).     Judgment as a

17   matter of law is appropriate if, after reviewing the

18   evidence in the light most favorable to Izzarelli, the

19   nonmovant, “there can be but one conclusion as to the

20   verdict that reasonable [jurors] could have reached.”

21   Samuels v. Air Transp. Local 504, 992 F.2d 12, 14 (2d Cir.

22   1993) (quotation marks omitted); see also Coffey v. Dobbs

23   Int’l Servs., Inc., 170 F.3d 323, 326 (2d Cir. 1999).

                                     7
1        Izzarelli sues under the CPLA, Conn. Gen. Stat. Ann.

2    § 52-572m et seq.   The CPLA allows a person injured by a

3    defective or hazardous product to bring a claim rooted in

4    “negligence, strict liability[,] and warranty, for harm

5    caused by a product.”   Id. § 52-572n(a).    The certified

6    question concerns solely strict liability.    In order to

7    prove a strict liability claim under the CPLA, it must be

8    shown “that: (1) the defendant was engaged in the business

9    of selling the product; (2) the product was in a defective

10   condition unreasonably dangerous to the consumer or user;

11   (3) the defect caused the injury for which compensation was

12   sought; (4) the defect existed at the time of the sale; and

13   (5) the product was expected to and did reach the consumer

14   without substantial change in condition.”    Giglio v. Conn.

15   Light & Power Co., 429 A.2d 486, 488 (Conn. 1980) (citing

16   Restatement (Second) of Torts § 402A (1965)).    For the

17   purposes of the question presented for certification, the

18   decisive issue is the existence of a defective condition.

19       The Connecticut rule for strict liability is drawn from

20   section 402A of the Restatement (Second) of Torts.    See id;

21   Wagner v. Clark Equip. Co., Inc., 700 A.2d 38, 50 (Conn.

22   1997).   Section 402A provides:



                                   8
 1            (1) One who sells any product in a defective
 2            condition unreasonably dangerous to the user or
 3            consumer or to his property is subject to
 4            liability for physical harm thereby caused to the
 5            ultimate user or consumer, or to his property, if
 6                 (a) the seller is engaged in the business of
 7                 selling such a product, and
 8                 (b) it is expected to and does reach the user
 9                 or consumer without substantial change in the
10                 condition in which it is sold.
11
12   (Emphasis added).   Comment i, which defines “unreasonably

13   dangerous,” excludes the harmful effects of “good tobacco”:

14            The rule stated in this Section applies only where
15            the defective condition of the product makes it
16            unreasonably dangerous to the user or consumer.
17            Many products cannot possibly be made entirely
18            safe for all consumption, and any food or drug
19            necessarily involves some risk of harm, if only
20            from over-consumption. Ordinary sugar is a deadly
21            poison to diabetics, and castor oil found use
22            under Mussolini as an instrument of torture. That
23            is not what is meant by “unreasonably dangerous”
24            in this Section. The article sold must be
25            dangerous to an extent beyond that which would be
26            contemplated by the ordinary consumer who
27            purchases it, with the ordinary knowledge common
28            to the community as to its characteristics. . . .
29            Good tobacco is not unreasonably dangerous merely
30            because the effects of smoking may be harmful; but
31            tobacco containing something like marijuana may be
32            unreasonably dangerous. . . .
33
34   (Emphasis added).   The Connecticut Supreme Court has

35   explicitly adopted Comment i’s definition of “unreasonably

36   dangerous.”   Wagner, 700 A.2d at 50.   R.J. Reynolds argues

37   that Comment i precludes Izzarelli’s suit because she has

38   not produced evidence of contamination or adulteration--

39   “something like marijuana.”

                                   9
1        The Connecticut Supreme Court has not considered the

2    proviso for “good tobacco” in Comment i.   The only

3    Connecticut case that decided the issue is Estate of DuJack

4    v. Brown & Williamson Tobacco Corp., an oral ruling from the

5    bench.   X07-00728225-S, 2001 WL 34133836 (Conn. Super. Ct.

6    Nov. 13, 2001).   The court assumed “that [plaintiff] did

7    smoke Kool cigarettes, that she became addicted to Kool

8    cigarettes at an early age, that this addiction did her

9    harm, and that the cigarette smoking that she did caused her

10   lung cancer, and the other injuries that resulted from

11   having the lung cancer.”   Id. at *1.   The DuJack court

12   dismissed the complaint, relying on Comment i: “you cannot

13   make a claim that cigarettes are an unreasonably dangerous

14   or defective product because the nicotine in them causes

15   harm.”   Id. at *3.   At the same time, the court

16   distinguished a hypothetical case in which a plaintiff

17   alleged “that Kool cigarettes have some peculiar

18   manufacturing process with filters or their papers or any

19   additives or any genetic processing that makes Kool

20   cigarettes different than any other cigarette.”     Id. at *2.

21       It is unclear whether Comment i precludes all products

22   liability claims in Connecticut against tobacco companies

23   absent allegations of contamination or adulteration.    When


                                    10
1    Comment i was adopted in 1965, it was widely known that

2    smoking is dangerous and can be addictive.   So it makes

3    sense to conclude that a cigarette cannot be “unreasonably

4    dangerous” when manufactured consistent with industry norms.

5    Izzarelli argues, however, that Comment i specifies “good

6    tobacco” as opposed to “good cigarettes,” and therefore does

7    not bear upon the manufacturing process; that a cigarette is

8    a nicotine delivery device that can change how tobacco is

9    smoked and its effect on the smoker; and that R.J. Reynolds

10   varied the blends and components to make Salems more

11   addictive, and varied the nicotine levels to maximize the

12   number of cigarettes needed per day to satisfy the

13   addiction.

14       Whether Comment i precludes claims under the CPLA

15   against cigarette manufacturers absent evidence of

16   contamination or adulteration has not been decided in

17   Connecticut.   This question is one of state law and is

18   vigorously argued on both sides.   We therefore think it

19   prudent to certify this question to the Connecticut Supreme

20   Court.

21

22


                                   11
1                              CONCLUSION

2        For the foregoing reasons, we hereby CERTIFY the

3    following question to the Connecticut Supreme Court: Does

4    Comment i to section 402A of the Restatement (Second) of

5    Torts preclude a suit premised on strict products liability

6    against a cigarette manufacturer based on evidence that the

7    defendant purposefully manufactured cigarettes to increase

8    daily consumption without regard to the resultant increase

9    in exposure to carcinogens, but in the absence of evidence

10   of any adulteration or contamination?   We STAY ADJUDICATION

11   of this dispute until we receive guidance from the

12   Connecticut Supreme Court.   The Connecticut Supreme Court

13   may modify this question as it sees fit and add any

14   pertinent questions of Connecticut law that the Court

15   chooses to answer.   This panel retains jurisdiction over

16   this case and will decide it once the Connecticut Supreme

17   Court has either provided us with its guidance or declined

18   certification.

19       It is therefore ORDERED that the Clerk of this Court

20   transmit to the Clerk of the Connecticut Supreme Court a

21   Certificate, as set forth below, together with this decision

22   and a complete set of the briefs, appendices, and record

23   filed in this Court by the parties.
                                   12
1                           CERTIFICATE

2       The foregoing is hereby certified to the Connecticut

3   Supreme Court, pursuant to Conn. Gen. Stat. Ann. § 51–199b

4   and 2d Cir. R. 27.2, as ordered by the United States Court

5   of Appeals for the Second Circuit.




                                 13
