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

                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT

                             SUMMARY ORDER
RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
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ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
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     At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
7th day of July, two thousand seventeen.

PRESENT: DENNIS JACOBS,
         JOSÉ A. CABRANES,
         RICHARD C. WESLEY,
              Circuit Judges.

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BARBARA A. IZZARELLI,
         Plaintiff-Appellee-Cross-Appellant,

             -v.-                                                       11-3865
                                                                        11-3890
R.J. REYNOLDS TOBACCO COMPANY,
         Defendant-Appellant-Cross-Appellee.

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FOR DEFENDANT-APPELLANT:                       Mark R. Seiden, Theodore M.
                                               Grossman, Todd R. Geremia,
                                               David M. Cooper, Victoria
                                               Dorfman, Mark A. Belasic,
                                               Jones Day, New York, NY.



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FOR PLAINTIFF-APPELLEE:            David S. Golub, Jonathan M.
                                   Levine, Marilyn J. Ramos,
                                   Silver Golub & Teitell LP,
                                   Stamford, CT.

     Appeal from a judgment of the United States District Court
for the District of Connecticut (Underhill, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the judgment of the district court is AFFIRMED in
part and, in part, VACATED and REMANDED.

     Barbara Izzarelli sues R.J. Reynolds Tobacco Company
(“R.J. Reynolds”) under the Connecticut Products Liability Act
(“CPLA”), Conn. Gen. Stat. § 52-572m et seq., for strict
liability and negligence, claiming that the particular brand
of cigarette she smoked for twenty-five years (Salem Kings) was
defectively designed and caused her laryngeal cancer.1 A jury
agreed, finding R.J. Reynolds liable (and 58 percent at fault)
under theories of strict liability and negligence, and awarded
Izzarelli compensatory damages of $7,982,250 plus punitive
damages, which the district court set at $3,970,289.87 (the
amount of her litigation expenses less taxable costs).2 The
United States District Court for the District of Connecticut
(Underhill, J.) denied R.J. Reynolds’s post-trial motion for
judgment as a matter of law or for a new trial, and entered
judgment in Izzarelli’s favor. R.J. Reynolds appeals the

1
  Izzarelli also brought a claim under the Connecticut Unfair
Trade Practices Act, Conn. Gen. Stat. § 42-110a et seq., for
unlawful youth marketing. The district court dismissed the
claim on summary judgment, and Izzarelli does not appeal that
decision.
2
  The district court also awarded $16,127,086.40 in
offer-of-judgment interest. See generally Elgard Corp. v.
Brennan Constr. Co., 388 F.3d 30, 36 (2d Cir. 2004) (“explaining
that “[t]he purpose of [Connecticut’s offer-of-judgment
statute, Conn. Gen. Stat. § 52-192a,] is to conserve judicial
resources by encouraging fair and reasonable compromise between
litigants and by penalizing a party that fails to accept a
reasonable offer of settlement” (internal quotation marks
omitted)).
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judgment on various grounds. Izzarelli cross-appeals the
district court’s ruling limiting punitive damages to litigation
expenses less taxable costs. We assume the parties’
familiarity with the underlying facts, the procedural history,
and the issues presented for review.

     This is the second occasion on which we are called upon to
consider this appeal. When the appeal was originally heard in
2013, R.J. Reynolds argued principally that Izzarelli’s claims
were barred by the rule “re-stated” in the Restatement (Second)
of Torts § 402A. Because this threshold issue was undecided
under Connecticut law, we certified the following question to
the Connecticut Supreme Court:

         Does Comment i to section 402A of the Restatement
         (Second) of Torts preclude a suit premised on strict
         products liability against a cigarette manufacturer
         based on evidence that the defendant purposefully
         manufactured cigarettes to increase daily consumption
         without regard to the resultant increase in exposure
         to carcinogens, but in the absence of evidence of any
         adulteration or contamination?

Izzarelli v. R.J. Reynolds Tobacco Co., 731 F.3d 164, 169 (2d
Cir. 2013).   The Connecticut Supreme Court answered the
question in the negative and clarified Connecticut law
regarding strict liability. See Izzarelli v. R.J. Reynolds
Tobacco Co., 321 Conn. 172, 211 (2016).

     Two other questions that bear on this appeal were certified
to the Connecticut Supreme Court in a companion case, Bifolck
v. Philip Morris, Inc.:

         1. Does § 402A of the Restatement (Second) of Torts
         (and Comment i to that provision) apply to a product
         liability claim for negligence under the CPLA?

         2. Does Connecticut’s common law rule [limiting]
         punitive damages [to litigation expenses less taxable
         costs] . . . apply to an award of statutory punitive
         damages pursuant to Conn. Gen. Stat. § 52-240b, the
         punitive damages provision of the CPLA?


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No. 3:06CV1768 (SRU), 2014 WL 585325, at *8, 2014 U.S. Dist.
LEXIS 18797, at *22 (D. Conn. Feb. 14, 2014). In a thorough
opinion articulating the standards that govern product
liability claims in Connecticut, the Supreme Court answered
“No” to both questions. See Bifolck v. Philip Morris, Inc.,
324 Conn. 402, 408 (2016).

     As the parties acknowledge, the rulings in Izzarelli and
Bifolck, inter alia: (1) foreclose R.J. Reynolds’s argument
that the Restatement (Second) of Torts § 402A, as interpreted
by Connecticut’s highest court, bars Izzarelli’s claims; and
(2) confirm Izzarelli’s contention that the district court
incorrectly limited punitive damages to litigation expenses
less taxable costs. However, those rulings do not dispose of
this appeal. Remaining are R.J. Reynolds’s arguments that: (1)
erroneous evidentiary rulings and jury instructions require a
new trial; (2) R.J. Reynolds is entitled to judgment as a matter
of law because Izzarelli failed to prove that a defect in Salem
King cigarettes caused her cancer; and (3) Izzarelli’s claims
are preempted by federal law because they amount to a ban on
cigarettes.

A.   Motion for New Trial

     R.J. Reynolds contends that flawed evidentiary rulings and
jury instructions warrant a new trial, and that the district
court erred by refusing to grant one. “We review the district
court’s denial of a motion for a new trial for abuse of
discretion.” Medforms, Inc. v. Healthcare Mgmt. Solutions,
Inc., 290 F.3d 98, 106 (2d Cir. 2002). “A motion for a new trial
ordinarily should not be granted unless the trial court is
convinced that the jury has reached a seriously erroneous result
or that the verdict is a miscarriage of justice.” Hugo Boss
Fashions, Inc. v. Fed. Ins. Co., 252 F.3d 608, 623 (2d Cir. 2001)
(internal quotation marks omitted). “In reviewing the
district court’s decision, we must view the evidence in the
light most favorable to the nonmoving party.” Medforms, 290
F.3d at 106 (internal quotation marks omitted).

     For the reasons discussed below, the district court did not
“abuse its discretion” (that is, err) in denying R.J. Reynolds’s
motion for a new trial. See generally United States v. Park,


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758 F.3d 193, 199-200 (2d Cir. 2014) (per curiam) (explaining
the term of art “abuse of discretion”).

    1.   Evidentiary Rulings

         i.   Risk Factors

     R.J. Reynolds proffered evidence that Izzarelli’s
laryngeal cancer could have been caused by factors other than
smoking. These “risk factors” included human papilloma virus
(“HPV”), drug use, alcohol consumption, acid reflux, and family
and personal history of non-laryngeal cancer. Except for HPV,
the district court precluded R.J. Reynolds from introducing
evidence and conducting cross-examination regarding all of
these factors. The court permitted R.J. Reynolds to offer
testimony and documentary evidence that HPV can cause laryngeal
cancer, but refused to admit the results of a test that,
according to R.J. Reynolds, suggested that HPV caused
Izzarelli’s cancer. R.J. Reynolds contends that these rulings
were improper.

     A district court is accorded broad discretion in admitting
or excluding evidence and in controlling the scope of
cross-examination, and we review its decisions in these areas
for abuse of discretion. See Cameron v. City of N.Y., 598 F.3d
50, 61 (2d Cir. 2010); United States v. Wilkerson, 361 F.3d 717,
734 (2d Cir. 2004). We identify no such abuse here. The record
-- including admissions by R.J. Reynolds’s experts -- amply
supports the district court’s conclusion that HPV was the only
proffered risk factor that was arguably shown to cause laryngeal
cancer. It was therefore not unreasonable to find that
whatever relevance the other factors possessed was
substantially outweighed by the danger of confusion and unfair
prejudice.

     The district court similarly exercised sound discretion in
excluding evidence that Izzarelli’s tumor tested positive for
“p16,” an antibody that can indicate the presence of HPV.
Because the tumor tested negative for HPV itself -- and R.J.
Reynolds did not demonstrate that this test was inaccurate --
it was not error to rule that the positive p16 test was
irrelevant.


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         ii.   Youth Marketing

     R.J. Reynolds argues that the district court erred by
admitting evidence of its marketing research and campaigns
directed at minors. The district court found that the
relevance of this evidence was not substantially outweighed by
the prejudicial impact. “Unless a district court’s
determination of relevance is arbitrary or irrational, it will
not be overturned.” United States v. LaFlam, 369 F.3d 153, 155
(2d Cir. 2004) (per curiam) (internal quotation marks omitted).
“Because the district court retains broad discretion to weigh
potential prejudice against probative value, appellate courts
reviewing a district court’s evaluation of evidence under
Federal Rule of Evidence 403 generally maximize its probative
value and minimize its prejudicial effect.” Id. (internal
quotation marks omitted).

     There are several reasons why evidence of R.J. Reynolds’s
youth marketing was relevant to Izzarelli’s case. First, it
supported Izzarelli’s claim that Salem Kings were uniquely
designed to contain, inter alia, nicotine levels that were just
high enough to cause and maintain addiction but low enough to
induce frequent smoking (and thus elevated exposure to
carcinogens), and an ingredient blend that provided enhanced
flavor (and thus more carcinogenic tar). Izzarelli, who
started smoking Salem Kings at age 12, demonstrated that this
design was adopted in part to attract young, new smokers, who
disliked the bitterness of nicotine and preferred flavorful
cigarettes.

     Second, the youth marketing evidence indicated that minors
-- who compose the bulk of new smokers and have strong brand
loyalty -- were Salem Kings’ target demographic. This is
relevant because consumer expectation is a factor in
determining strict liability.3 See Bifolck, 324 Conn. at 435

3
  Consumer expectation is the dispositive factor under the
“ordinary consumer expectation” test, which R.J. Reynolds
argued at trial (and on appeal) was applicable to Izzarelli’s
strict liability claim. However, the Connecticut Supreme
Court ruled that the risk-utility test (previously called the
“modified consumer expectation” test) is the only test
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(explaining that, under risk-utility test, “a jury may consider
. . . the nature and strength of consumer expectations regarding
the product, including expectations arising from product
portrayal and marketing”); id. at n.18 (“The reasonable
consumer standard in relation to a manifestly unreasonable
design refers to the consumer to whom the product is
marketed.”); Izzarelli, 321 Conn. at 208-10 (noting the
relevance of consumer expectations to strict liability).
Evidence that R.J. Reynolds targeted minors, who (the record
indicates) have a diminished appreciation for the risks of
smoking, therefore strengthened Izzarelli’s strict liability
claim.

     Third, revealing the identity and preferences of Salem King
consumers informed the jury’s understanding of the utility of
the product, which is critical to the governing risk-utility
test.

     Fourth, the evidence had bearing on whether and how R.J.
Reynolds manipulated Salem King ingredients, and whether the
company was aware of the health risks posed by those
ingredients. Thus, internal marketing memoranda helped
establish R.J. Reynolds’s “actual or imputed knowledge of the
danger,” which “is an essential element of negligence.”
Bifolck, 324 Conn. at 443.

     Fifth, internal marketing memoranda were also relevant to
the issue of punitive damages, which “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.”
Conn. Gen. Stat. § 52-240b. Documents showing the decisions
that led to a dangerous design are probative of a manufacturer’s
reckless disregard for consumer safety.

     Finally, the youth marketing evidence is relevant to R.J.
Reynolds’s defense of comparative fault. In assessing
Izzarelli’s responsibility for her cancer, the jury was
entitled to consider R.J. Reynolds’s research regarding why
minors choose to smoke and its belief that minors fail to fully
appreciate the risks of smoking.

applicable to that claim.   See Izzarelli, 321 Conn. at 203.
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     These relevancy considerations   were offsets to the
undoubtedly prejudicial evidence of   youth marketing. The
weighing was for the district court   to do, and we cannot say
the rulings constituted an abuse of   discretion.

     2.   Jury Instructions

     R.J. Reynolds contends that the Connecticut Supreme Court,
in Izzarelli and Bifolck, invalidated the jury instructions
regarding product liability. However, the Connecticut Supreme
Court did so only with respect to the instructions on strict
liability: it explained that one of the strict liability tests
presented to the jury (the “ordinary consumer expectation”
test, for which R.J. Reynolds advocated) is inapplicable in this
case. See Izzarelli, 321 Conn. at 203. With respect to
negligence, the Connecticut Supreme Court confirmed that such
claims are governed by the traditional common-law elements on
which the jury was properly instructed. See Bifolck, 324 Conn.
at 442-43. Because the jury returned a separate verdict for
Izzarelli on her negligence claim, which is undisturbed by
Izzarelli and Bifolck, the possible flaw in the strict liability
verdict is irrelevant.

B.   Motion for Judgment as a Matter of Law

     R.J. Reynolds argues that Izzarelli failed to prove that
the purported defect in Salem Kings caused her cancer, and that
the district court erred by not granting R.J. Reynolds’s motion
for judgment as a matter of law on this basis. We review the
denial of a motion for judgment as a matter of law de novo,
“applying the same standards as the district court to determine
whether judgment as a matter of law was appropriate.” Merrill
Lynch Interfunding, Inc. v. Argenti, 155 F.3d 113, 120 (2d Cir.
1998). Judgment as a matter of law is appropriate if, after
reviewing the evidence in the light most favorable to Izzarelli,
the nonmovant, “there can be but one conclusion as to the verdict
that reasonable [jurors] could have reached.” Samuels v. Air
Transp. Local 504, 992 F.2d 12, 14 (2d Cir. 1993) (internal
quotation marks omitted). Relief is warranted “only where
there is such a complete absence of evidence supporting the
verdict that the jury’s findings could only have been the result
of sheer surmise and conjecture, or there is such an


                               8
overwhelming amount of evidence in favor of the movant that
reasonable and fair minded men could not arrive at a verdict
against [it].” Bucalo v. Shelter Island Union Free Sch. Dist.,
691 F.3d 119, 127-28 (2d Cir. 2012) (internal quotation marks
omitted).

     There was evidence sufficient to support the jury’s finding
that the particular blend of ingredients in Salem Kings caused
Izzarelli’s laryngeal cancer. Izzarelli adduced evidence
that: (1) Salem Kings delivered a level of nicotine (along with
a chemically-enhanced “kick”) that provoked initial addiction
and stimulated the need to smoke frequently; (2) Salem Kings
contained a significant amount of carcinogenic tar; (3) the
more carcinogens a smoker is exposed to, the more likely
laryngeal cancer will develop; and (4) Izzarelli smoked two to
three packs of Salem Kings a day for 25 years. Izzarelli also
adduced evidence that R.J. Reynolds could have made Salem Kings
safer by taking any of the following steps: (1) decreasing the
nicotine yield to below-addiction levels; (2) increasing the
nicotine yield to levels that satisfied addiction with fewer
cigarettes; or (3) decreasing the level of tar.

     Thus, in sum, a rational jury could have found from the
evidence presented at trial that Salem Kings had an unreasonably
dangerous design that caused Izzarelli’s laryngeal cancer.

C.   Preemption

     R.J. Reynolds asserts that Izzarelli’s theory of liability
“amounts to a ban on all cigarettes sold in Connecticut,” Def.’s
Opening Br. 27, and, as such, is preempted by federal law. We
need not address this argument on the merits because we disagree
with its premise. Izzarelli’s theory at trial was that Salem
Kings -- with their particular blend of addictive and
carcinogenic ingredients -- are unreasonably dangerous, not
that cigarettes in general are. And the jury was twice properly
instructed that R.J. Reynolds could not be held liable merely
because Salem Kings contained nicotine and carcinogens.
Therefore, because Izzarelli’s claims were focused on
characteristics of the brand that were not common to cigarettes
in general, R.J. Reynolds’s preemption argument fails.



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                          CONCLUSION

     For the foregoing reasons, we hereby AFFIRM the judgment
of the district court as to liability but VACATE and REMAND for
a redetermination of punitive damages in light of the
Connecticut Supreme Court’s holding in Bifolck.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, CLERK




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