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Izzarelli v. R.J. Reynolds Tobacco Co.

United States Court of Appeals, Second Circuit

September 10, 2013

Barbara A. IZZARELLI, Plaintiff-Appellee-Cross-Appellant,
v.
R.J. REYNOLDS TOBACCO COMPANY, Defendant-Appellant-Cross-Appellee.

Argued: March 18, 2013.

Page 165

David S. Golub (Jonathan M. Levine, Marilyn J. Ramos, on the brief), Silver Golub & Teitell LLP, Stamford, CT, for Plaintiff-Appellee-Cross-Appellant Barbara A. Izzarelli.

Mark R. Seiden (Todd R. Geremia, David M. Cooper, Jones Day, New York, NY, Theodore M. Grossman, Mark A. Belasic, Jones Day, Cleveland, OH, on the brief), Jones Day, New York, NY, for Defendant-Appellant-Cross-Appellee R.J. Reynolds Tobacco Company.

Before: JACOBS, Chief Judge, CABRANES and WESLEY, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Barbara Izzarelli brings claims against defendant R.J. Reynolds Tobacco Company (" R.J. Reynolds" ) under the Connecticut Products Liability Act (" CPLA" ), Conn. Gen.Stat. Ann. § 52-572m et seq. , for strict liability and negligence, arguing that the cigarettes she smoked for 25 years caused cancer in her larynx.[1] A jury

Page 166

in the United States District Court for the District of Connecticut (Underhill, J. ) found R.J. Reynolds liable (and 58 percent at fault under Connecticut's comparative negligence scheme), and awarded Izzarelli $7,982,250 in compensatory damages; punitive damages, which the district court calculated as $3,970,289.87; and $16,127,086.40 in offer-of-judgment interest.

R.J. Reynolds appeals the denial of its renewed motion for judgment as a matter of law, arguing principally that Izzarelli's claims are foreclosed by Connecticut law and the Restatement (Second) of Torts § 402A, as adopted by the Connecticut Supreme Court, Giglio v. Conn. Light & Power Co., 180 Conn. 230, 429 A.2d 486, 488 (1980), which (R.J. Reynolds argues) precludes strict products liability suits against a seller of " good tobacco." [2]

Because this question is undecided under Connecticut law, we certify it to the Connecticut Supreme Court and stay resolution of this case in the interval.

BACKGROUND

Izzarelli tried cigarettes at age twelve, in 1970. By 1972, Izzarelli was smoking a pack a day of Salem Kings brand cigarettes (" Salems" ), manufactured by R.J. Reynolds. Izzarelli smoked Salems for the next 25 years, at least two packs a day. In 1996, she was diagnosed with laryngeal cancer. After a laryngectomy in January 1997, she no longer has a voice box and breathes through a tracheotomy hole in her throat. She has undergone numerous surgeries to fix breathing problems, and can eat only soft foods.

Dr. Alexander Glassman, a psychiatrist, testified at trial that Izzarelli was " severely addicted" to nicotine. Other experts retained by Izzarelli testified that her cancer was caused by smoking: Dr. Marshall Posner, Izzarelli's expert on cancer, testified that he was " absolutely convinced" this cancer was caused by smoking, and that 95 percent of laryngeal cancers are caused by smoking; and Izzarelli's treating otolaryngologist, Dr. Thomas Lesnik, testified that her cancer was caused by her smoking.

At trial, Izzarelli introduced evidence that R.J. Reynolds manufactured Salems to specifications intended to get non-smokers addicted to nicotine and to get addicted smokers to smoke ...


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