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           BIFOLCK v. PHILIP MORRIS, INC.—DISSENT

  VERTEFEUILLE, J., concurring and dissenting. I
agree with the majority opinion insofar as it concludes
that § 402A of the Restatement (Second) of Torts
applies to a product liability claim for negligence under
Connecticut’s Product Liability Act (act), General Stat-
utes § 52-572m et seq. I disagree, however, with the
majority’s conclusion in part IV of its opinion that our
common-law rule of punitive damages does not apply
to an award of statutory punitive damages pursuant to
General Statutes § 52-240b. Accordingly, I respectfully
dissent from that portion of the majority opinion.
   This court has repeatedly held that ‘‘[i]nterpreting a
statute to impair an existing interest or to change radi-
cally existing law is appropriate only if the language of
the legislature plainly and unambiguously reflect such
an intent. [W]hen a statute is in derogation of common
law or creates a liability where formerly none existed,
it should receive a strict construction and is not to be
extended, modified, repealed or enlarged in its scope
by the mechanics of [statutory] construction. . . . In
determining whether or not a statute abrogates or mod-
ifies a common law rule the construction must be strict,
and the operation of a statute in derogation of the com-
mon law is to be limited to matters clearly brought
within its scope.’’ (Citation omitted; internal quotation
marks omitted.) Vitanza v. Upjohn Co., 257 Conn. 365,
381, 778 A.2d 829 (2001).
   ‘‘We recognize only those alterations of the common
law that are clearly expressed in the language of the
statute because the traditional principles of justice upon
which the common law is founded should be perpetu-
ated. The rule that statutes in derogation of the common
law are strictly construed can be seen to serve the same
policy of continuity and stability in the legal system as
the doctrine of stare decisis in relation to case law.’’
(Internal quotation marks omitted.) Id., 381–82; Alvarez
v. New Haven Register, Inc., 249 Conn. 709, 715, 735
A.2d 306 (1999); see also Elliot v. Sears, Roebuck &
Co., 229 Conn. 500, 515, 642 A.2d 709 (1994) (‘‘[w]e will
not interpret a statute to have the effect of altering
prior statutory or common law unless the language of
the statute clearly expresses an intent to have such an
effect’’); Lynn v. Haybuster Mfg., Inc., 226 Conn. 282,
289–90, 627 A.2d 1288 (1993) (statute in derogation of
common law or creating liability where none existed
is strictly construed and not to be extended, modified
or enlarged in scope; elimination of common-law right
by statute only if legislative intent is clearly and plainly
expressed). We previously have applied these principles
to the act. See Vitanza v. Upjohn Co., supra, 257 Conn.
381; Elliot v. Sears, Roebuck & Co., supra, 515; Lynn
v. Haybuster Mfg., Inc., supra, 289–90.
   Under the common law of this state, ‘‘[i]n order to
award punitive or exemplary damages, [the] evidence
must reveal a reckless indifference to the rights of oth-
ers or an intentional and wanton violation of those
rights.’’ (Internal quotation marks omitted.) Votto v.
American Car Rental, Inc., 273 Conn. 478, 486, 871
A.2d 981 (2005). Punitive damages in common-law tort
actions are limited to litigation expenses, such as attor-
ney’s fees, less taxable costs. Hylton v. Gunter, 313
Conn. 472, 484, 97 A.3d 970 (2014). This is because,
under the long-standing law of this state, ‘‘[t]he [pur-
pose] of awarding punitive damages is not to punish
the defendant for his offense, but to compensate the
plaintiff for his injuries.’’ (Internal quotation marks
omitted.) Whitaker v. Taylor, 99 Conn. App. 719, 730,
916 A.2d 834 (2007); see also Harty v. Cantor Fitzger-
ald & Co., 275 Conn. 72, 97, 881 A.2d 139 (2005) (‘‘com-
mon-law punitive damages . . . are intended to do no
more than make the litigant whole’’); Waterbury Petro-
leum Products, Inc. v. Canaan Oil & Fuel Co., 193
Conn. 208, 236, 477 A.2d 988 (1984) (discussing long
history of this state’s rule limiting punitive damages to
litigation expenses).
    Section 52-240b provides: ‘‘Punitive damages may be
awarded if the claimant proves that the harm suffered
was the result of the product seller’s reckless disregard
for the safety of product users, consumers or others
who were injured by the product. If the trier of fact
determines that punitive damages should be awarded,
the court shall determine the amount of such damages
not to exceed an amount equal to twice the damages
awarded to the plaintiff.’’ Thus, the plain language of
§ 52-240b merely provides that punitive damages cannot
exceed twice the compensatory damages award. The
statute does not plainly and unambiguously abrogate
the common-law rule that punitive damages are limited
to litigation expenses. Indeed, the statute is silent as
to the meaning of ‘‘punitive damages.’’ Accordingly, I
believe that we must interpret § 52-240b as incorporat-
ing the common-law limitation on punitive damages.
Elliot v. Sears, Roebuck & Co., supra, 229 Conn. 515
(‘‘[w]e will not interpret a statute to have the effect
of altering prior statutory or common law unless the
language of the statute clearly expresses an intent to
have such an effect’’); see also Izzarelli v. R.J. Reynolds
Tobacco Co., 767 F. Supp. 2d 324, 329 (D. Conn. 2010)
(§ 52-240b incorporates ‘‘the traditional method of cal-
culating a punitive damages award’’).
  Moreover, in statutes where the legislature has
wanted to make it clear that punitive damages may
be awarded over and above litigation expenses, the
legislature has expressly provided that punitive dam-
ages may be awarded ‘‘in addition to’’ attorney’s fees,
or has used language to that effect. See General Statutes
§ 42-110g (d) (‘‘[i]n any action brought by a person
under this section, the court may award, to the plaintiff,
in addition to the relief provided in this section [includ-
ing punitive damages], costs and reasonable attorneys’
fees’’ [emphasis added]); Ulbrich v. Groth, 310 Conn.
375, 449, 78 A.3d 76 (2013) (punitive damages author-
ized by § 42-110g [d] are not subject to common-law
limitation because statute provides that attorney’s fees
may be awarded ‘‘in addition to’’ punitive damages
[emphasis omitted]); see also General Statutes § 35-
53 (b) (‘‘the court may award punitive damages in an
amount not exceeding twice any award made under
subsection [a] and may award reasonable attorney’s
fees to the prevailing party’’ [emphasis added]); Smith
v. Snyder, 267 Conn. 456, 469–70, 839 A.2d 589 (2004)
(punitive fees authorized by § 35-53 [b] are not subject
to common-law limitation).1
   Because these statutes contain language that § 52-
240b does not contain, their relationship to § 52-420b
does not render the meaning of the term ‘‘punitive dam-
ages’’ as used in that statute plain and unambiguous.
Accordingly, we may look to the legislative history of
the act to determine the scope and meaning of that
term. See General Statutes § 1-2z. This legislative his-
tory supports the conclusion that § 52-240b was not
intended to abrogate the common-law rule of punitive
damages. The legislature considered a bill that specifi-
cally provided that, if the claimant proved that the harm
suffered was the result of reckless disregard for the
safety of product users, punitive damages could be
awarded ‘‘in addition to attorney’s fees . . . .’’
(Emphasis added.) Substitute House Bill No. 5870, 1979
Sess., § 8 (a).2 The emphasized language was deleted
before the bill was enacted. See Substitute House Bill
No. 5870, as amended by House Amendment A, § 8 (a).
It is reasonable to conclude that this was done because
the legislature was aware that, under the common law
of this state, punitive damages consist of attorney’s
fees. Alvarez v. New Haven Register, Inc., supra, 249
Conn. 722 (‘‘[t]he legislature is presumed to be aware
of this court’s decisions and, therefore, the common-
law limitations on the [defendant’s] liability already in
place’’). Thus, the most reasonable explanation for the
intentional deletion of such language from § 52-240b is
that the legislature intended that, for purposes of the
act, the existing common-law limitation would apply to
punitive damages. See Izzarelli v. R.J. Reynolds
Tobacco Co., supra, 767 F. Supp. 2d 328 (‘‘[b]y rejecting
proposed legislation that would have authorized puni-
tive damages ‘in addition to attorney’s fees,’ the legisla-
ture declined to expand punitive damages beyond the
common-law measure of litigation less taxable costs’’).
  In addition, the legislature considered and rejected a
provision that would have required the court to consider
multiple factors in determining the amount of punitive
damages; compare Substitute House Bill No. 5870, § 8
(b)3 and Public Acts 1979, No. 79-483, § 8; and, instead,
adopted the provision capping punitive damages at
twice the amount of the compensatory award. If the
legislature had intended to authorize an award of puni-
tive damages over and above litigation expenses, I can
perceive no reason why it would have deliberately
declined to provide the court with objective criteria by
which it could determine the amount of such an award.4
See Izzarelli v. R.J. Reynolds Tobacco Co., supra, 767
F. Supp. 2d 329 (‘‘[t]he legislature’s outright rejection
of the [multifactor] method of calculation demonstrates
its intent to preserve the common-law formulation’’).
   Finally, the legislative history of the act shows that,
far from being concerned with punishing defendants in
product liability actions by authorizing damage awards
that exceed the plaintiffs’ actual losses, the legislature
was primarily concerned with ‘‘the rising price of prod-
uct liability insurance’’ that had ‘‘hindered the ability
of companies to acquire coverage and to assume the
risk necessary for innovation without increasing the
costs of their products.’’5 Connecticut State Library,
Law and Legislative Reference Unit, Connecticut Legis-
lative Histories Landmark Series: 1979 Public Act No.
483 (2007) preface. In light of this concern, it would have
been entirely reasonable for the legislature to adopt the
common-law limitation on punitive damages and, in
addition, to cap such damages at twice the compensa-
tory award in order to limit liability in cases where the
compensatory damages—and, presumably, the injur-
ies—are small, but the litigation expenses are large.6
Accordingly, I would conclude that ‘‘punitive damages’’
as used in § 52-240b has the same meaning as under
our common law, namely, litigation expenses, such as
attorney’s fees, less taxable costs. Hylton v. Gunter,
supra, 313 Conn. 484.
  Accordingly, I respectfully dissent from part IV of
the majority opinion.
   1
     The majority points out that another provision of the act, General Statutes
§ 52-240a, provides that, ‘‘[i]f the court determines that the claim or defense
is frivolous, the court may award reasonable attorney’s fees to the prevailing
party in a products liability action.’’ The majority contends that, combined,
§§ 52-240a and 52-240b have the same effect as § 35-53 (b), which authorizes
awards of both punitive damages (not subject to the common-law limitation)
and attorney’s fees if the court finds ‘‘wilful and malicious misappropriation’’
of a trade secret. As the majority recognizes, however, § 52-240a applies to
entirely different conduct than § 52-240b. Specifically, § 52-240a applies
either when the plaintiff in a products liability action has raised a frivolous
claim or when the defendant has raised a frivolous defense, while § 52-240b
applies when the defendant has had ‘‘reckless disregard for the safety of
product users, consumers or others who were injured by the product.’’ Thus,
§§ 52-240a and 52-240b merely provide that there are two distinct situations
under the act that authorize the court to award attorney’s fees, not, as
provided by §§ 35-53 (b) and 42-110g (d), that the court is authorized to award
punitive damages in addition to attorney’s fees for the same misconduct.
   2
     Substitute Bill No. 5870, § 8 (a), provides: ‘‘Punitive damages, in addition
to attorney’s fees, may be awarded if the claimant shows by clear and
convincing evidence that the harm suffered was the result of the product
seller’s reckless disregard for the safety of product users, consumers or
others who were injured by the product.’’
   3
     Substitute Bill No. 5870, § 8 (b), provides: ‘‘If the trier of fact determines
that punitive damages should be awarded, it shall determine the amount of
such damages. In making such determination, the court shall consider: (1)
The likelihood at the time of manufacture that a serious harm would arise
from the product seller’s misconduct, (2) the degree of the product seller’s
awareness of such likelihood of harm, (3) the profitability of the misconduct
to the product seller, (4) the duration of the misconduct and any concealment
of it by the product seller, (5) the attitude and conduct of the product seller
upon discovery of the misconduct, (6) the financial condition of the product
seller, and (7) the total effect of other punishment imposed or likely to be
imposed upon the product seller as a result of the misconduct, including
punitive damage awards to persons similarly situated to the claimant and
the severity of criminal penalties to which the product seller has been or
may be subjected.’’
   4
     Accordingly, I disagree with the majority’s statement that ‘‘[t]here is
nothing to indicate that [in deleting the relevant language providing criteria
for determining the amount of punitive damages], the legislature intended
to change the meaning of ‘punitive damages’ as used in the proposed bill.’’
If the legislature intended to reject the common-law limitation on punitive
damages, there would have been no reason for it to delete the proposed
language.
   5
     See Proposed House Bill No. 5870, 1979 Sess. (‘‘STATEMENT OF PUR-
POSE: [t]o restore balance in the law of product liability’’); Proposed Senate
Bill No. 443, 1979 Sess. (‘‘STATEMENT OF PURPOSE: [t]o restore balance
in the law of product liability and relieve a serious economic problem’’);
Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1979 Sess., pp.
552–53, remarks of Philip H. Dreissigacker, vice president of technology for
the Farrel Company (referring to ‘‘testimony in previous years, 1976, 1977
and 1978 outlining the increasing effect of uncontrollable product liability
suits on the economics of our company both as to escalation and cost of
insurance, which has been 1200 percent in six years escalation, and in the
number of new cases per year’’); Conn. Joint Standing Committee Hearings,
supra, p. 568, remarks of John Anderson, assistant counsel for the Connecti-
cut Business and Industry Association (referring to ‘‘the increased cost of
product liability insurance’’ and ‘‘[i]ts impact on the prices of both consumer
and industrial goods, the uncertainty nationwide with respect to product
liability law’’); Conn. Joint Standing Committee Hearings, supra, p. 570,
remarks of Anderson (‘‘[w]e believe that the legislature can positively
address the product liability problem without unduly restricting any [plain-
tiff’s] rights and that is the thrust of House Bill 5870’’); Conn. Joint Standing
Committee Hearings, supra, p. 578, remarks of Norman Parsells, director of
Sturm, Ruger and Company (company’s insurance premiums have increased
from $90,000 to $3 million per year as result of product liability); Conn.
Joint Standing Committee Hearings, supra, pp. 578–79, remarks of Parsells
(proposed legislation ‘‘tries to restore fairness and equality to the field of
product liability law’’ and would reduce insurance rates nationally); Conn.
Joint Standing Committee Hearings, supra, pp. 582–83, remarks of Parsells
(‘‘my client has to add $8 to the cost of every product that ships out because
of this product liability problem’’).
   The majority contends that ‘‘[t]he punitive damages provision was added
to the proposed bill after consumer interests spoke in opposition to the
original bill, which was far less favorable to the consumer than the final
bill in various respects.’’ Although the punitive damages provision may have
been adopted to make the proposed legislation appear more palatable to
consumers, it does not necessarily follow that the provision was intended
to abrogate the common-law limitation on punitive damages. In light of the
overriding legislative intent to rebalance product liability law in favor of
defendants, it is more reasonable to conclude that the legislature intended
to adopt the common-law limitation.
   6
     The majority points out that the legislature imposed no such cap in
General § 52-240a, which authorizes an award of attorney’s fees to the
prevailing party if the court determines that a claim or defense was frivolous;
see footnote 1 of this concurring and dissenting opinion; and contends
that it is unlikely that ‘‘the legislature would have deemed the defendant’s
assertion of a frivolous defense to merit a harsher penalty than the defen-
dant’s injury causing reckless disregard for others’ safety.’’ The majority
fails to recognize, however, that § 52-240a provides a two-edged sword:
although it allows for full recovery of attorney’s fees from a defendant who
raises a frivolous defense, it also allows for full recovery of such fees from
a plaintiff who raises a frivolous claim. Thus, the provision maintains balance
in product liability law. In contrast, authorizing for the first time an award
of broad punitive damages would have altered the existing balance in favor
of plaintiffs, thereby exacerbating the economic problem that the act was
intended to alleviate. See footnote 5 of this concurring and dissenting
opinion.
