United States Court of Appeals for the Second Circuit


      Product Liability; Whether Strict Product Liability Action Against Cigarette Manufacturer Barred Absent Evidence that Cigarettes were Adulterated or Contaminated.  The plaintiff brought an action in federal court against the defendant tobacco company under the Connecticut Product Liability Act, General Statutes § 52-572m et seq., which provides the exclusive remedy for parties seeking to recover from product sellers for injuries caused by defective or hazardous products.  The plaintiff alleged that the defendant, who manufactured and sold the Salem Kings cigarettes that she smoked for twenty-five years, was strictly liable for her injuries, including laryngeal cancer.  In order to prove a strict liability claim under the act, a plaintiff must show that the product was in a defective condition unreasonably dangerous to the user.  The Connecticut Supreme Court has derived its definition of “unreasonably dangerous” from comment (i) to § 402A of the Restatement (Second) of Torts, which provides that “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."  At trial, the plaintiff presented evidence that the defendant manufactured Salem Kings to specifications intended to get non-smokers addicted to nicotine and to get addicted smokers to smoke more cigarettes without satisfying their addiction.  A jury rendered a verdict in favor of the plaintiff, and the defendant appealed the judgment on the verdict to the Second Circuit Court of Appeals.  The defendant argued on appeal that Connecticut law forecloses a strict product liability suit against a cigarette manufacturer absent evidence that the cigarettes were contaminated or adulterated.  The defendant relied on a provision in comment (i) to § 402A stating that “[g]ood tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous.”  Noting that there is no Connecticut appellate precedent addressing the “good tobacco” provision in comment (i) to § 402A, the Second Circuit determined that the issue should be certified to the Connecticut Supreme Court.  The Supreme Court subsequently accepted the following question pursuant to General Statutes § 51-199b: “Does comment (i) to § 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?”