(CN) — Connecticut’s highest court paved the way for a smoker to collect $28 million from R.J. Reynolds Tobacco, the maker of Salem King cigarettes.
Barbara Izzarelli brought a federal complaint in Connecticut after having her voice box removed to treat laryngeal cancer. When she was diagnosed in 1996 at age 36, Izzarelli had been smoking for two-thirds of her life.
R.J. Reynolds is appealing to the Second Circuit after a jury awarded Izzarelli more than $28 million in punitive and compensatory damages.
Its argument hinges on whether Izzarelli unfairly characterized her Salems as unreasonably dangerous in comparison to “ordinary” cigarettes.
The claim implicates a 1965 comment in federal tort law that created what is known as the “good tobacco” exception.
“Good whiskey is not unreasonably dangerous merely because it will make people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous,” the comment says. “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.”
The Second Circuit asked Connecticut Supreme Court to weigh in as to whether the “good tobacco” exception controls here, finding state law unsettled in the matter.
Siding with Izzarelli last week, the court said the “good tobacco” comment poses no bar to her recovery.
The 27-page ruling lays out a dizzying number of steps R.J. Reynolds took in the 1970s to make Salem customers heavier smokers.
Izzarelli’s counsel introduced evidence during trial that the tobacco company added ammonia compounds and acetaldehyde to the Salem King brand, then lowered the nicotine yield to maintain a smoker’s addiction, ultimately delivering a higher level of carcinogens to the consumer.
Applying the “good tobacco” exception here “would make Connnecticut an outlier,” Judge Andrew McDonald wrote for the court.
McDonald also said “providing such immunity would remove an important incentive to improving product safety.”
The ruling calls it “contrary to the public policy of this state to incorporate the exceptions in comment (i) insofar as they would immunize a manufacturer from liability for manipulating the inherently dangerous properties of its product to pose a greater risk of danger to the consumer.”
Attorney David Golub did not return a request for comment but told the Associated Press that the ruling “makes it clear the cigarette companies don’t have immunity from the terrible injuries and disease and death that their products cause.”
Operating out of Winston-Salem, North Carolina, R.J. Reynolds is the second-largest U.S. tobacco company, accounting for one-third of the cigarette sales in the country.
According to its website, “R.J. Reynolds scientifically evaluates all proposed ingredients in its products and does not — and will not — use any ingredient if scientific evaluations indicate that it will increase the inherent toxicity of its products.”
Representatives for R.J. Reynolds declined to comment on the ruling. The company is represented on appeal by Theodore Grossman and Jeffrey White. The attorneys did not return a request for comment.
A three-judge panel of the Second Circuit in Manhattan must take the Connecticut court’s opinion into consideration as R.J. Reynolds’ appeal proceeds.
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