Connecticut Court Must Weigh ‘Good Tobacco’ Law

MANHATTAN (CN) - A $26 million judgment for "defective" Salem cigarettes hinges on interpreting the "good tobacco" exception to Connecticut's strict products liability law, the 2nd Circuit ruled.

In 1970, Barbara Izzarelli reached for her first Salem cigarette at age 12. She picked up the habit two years later by smoking a pack a day, and more than doubled her consumption over the next 25 years. In 1996, Izzarelli contracted laryngeal cancer and later underwent numerous surgeries that removed her voice box.

Her federal lawsuit against manufacturer R.J. Reynolds Tobacco Company tried to hold the company accountable under the Connecticut Products Liability Act, which shields sellers of "good tobacco" from strict products liability suits.

Although she did not allege that her cigarettes were contaminated, she claimed that R.J. Reynolds designed Salems to be uniquely addictive.

The brand, widely known as the first filter-tipped menthol cigarette, allegedly was designed to have a high "kick" per drag combined with a low nicotine yield that requires smokers to buy more cigarettes to feed their addiction's daily requirement.

"R.J. Reynolds could manipulate the nicotine yield, and indeed had lowered it from 2-3 milligrams per cigarette in the 1950s and 1960s to approximately 1.3 milligrams per cigarette at the time of trial," according to the 2nd Circuit's summary of evidence presented at trial. "One internal document put the question this way: 'How low can we go?'"

Although a federal jury in Bridgeport forced the manufacturer to pay millions, R.J. Reynolds contended on appeal that Connecticut law's "good tobacco" exception requires evidence of contamination for a finding of liability. The statute reads: "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."

On Tuesday, the Manhattan-based federal appeals court punted the issue to the Connecticut Supreme Court.

The justices must mull whether state laws "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," the 13-page opinion states.

After they answer, the case will return to the 2nd Circuit for a final decision.

Attorneys for Izzarelli and R.J. Reynolds did not immediately respond to a request for comment.

Chief Judge Dennis Jacobs wrote the 2nd Circuit opinion for a three-person panel.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit