In an opinion that was officially released on May 3, 2016 in the case of Izzarelli v. R.J. Reynolds Tobacco Co., No. SC-19232, 2016 Conn. LEXIS 100 (Conn. May 3, 2016), the Connecticut Supreme Court clarified that the “modified consumer expectation test” is the primary test to be applied in most strict product liability “design defect” cases in Connecticut to determine whether a product is “unreasonably dangerous” and therefore defective. The Izzarelli plaintiff was a long-time smoker of Salem King cigarettes, and brought a product liability claim against their manufacturer, R.J. Reynolds, alleging that it altered the tobacco in the cigarettes so they would contain a higher proportion of “free nicotine,” which enhances addictive properties, while simultaneously lowering the overall amount of nicotine in the cigarettes. The plaintiff alleged that this made the cigarettes more addictive while requiring users to smoke more cigarettes in order to satisfy their addictions. The jury found in favor of the plaintiff, and the defendant appealed, arguing that under the ordinary consumer expectation test cigarettes could not possibly be “unreasonably dangerous” — a necessary element of any strict product liability claim under Connecticut law — because of their cancer-causing properties. The defendant relied on Comment (i) Section 402A of the Second Restatement of Torts, which states that “good tobacco” is not “unreasonably dangerous” merely because smoking may be harmful, but adulterated tobacco may be considered “unreasonably dangerous.” The Supreme Court rejected this argument, holding that under the modified consumer expectation test a claim could succeed even as to a product known to be inherently dangerous, if a manufacturer manipulated the dangerous properties of the product to pose an even greater risk to consumers. In Izzarelli, the result is an apparent win for the plaintiff.
This case is, however, somewhat unusual — defendants in Connecticut typically seek to apply the modified consumer expectation test in product liability cases following the Supreme Court’s seminal decision in Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199 (1997), while plaintiffs frequently want to apply the ordinary consumer expectation test. As a refresher, the ordinary consumer expectation test, as articulated in Potter, 241 Conn. at 214-15, asks whether a product is “unreasonably dangerous,” as determined by “an ordinary consumer who purchases it, with the ordinary knowledge common to the community of its characteristics.” The modified consumer expectation test, on the other hand, asks whether a product is unreasonably dangerous as determined by a consumer’s expectations “viewed in light of various factors that balance the utility of the product’s design with the magnitude of its risks.” Potter, 241 Conn. at 220. Relevant factors include the product’s relative cost, the potential harm, and the cost and feasibility of minimizing the risks at issue. Id.
In the wake of Potter, courts in Connecticut have generally applied the ordinary consumer expectation test in cases regarding relatively simple products, and have applied the modified consumer expectation test in cases regarding complex product designs, though not universally. Moreover, products liability cases in Connecticut are also often litigated in federal court, and aspects of the law are still unresolved. In any event, the Izzarelli court expressly rejected the simple/complex dichotomy, and explained that the ordinary consumer expectation test is only applicable in res ipsa loquitur type cases, where a product, whether simple or complex, is alleged to be dangerous in a way that obviously conflicts with a lay person’s understanding of the product. The modified consumer expectation test is now the default test applicable to defective design claims, regardless of whether the product at issue is simple or complex. While this was not the result for which the defendant in Izzarelli advocated, it may set a helpful precedent for many product manufacturers and sellers defending claims in Connecticut, who should now be allowed to use expert testimony and employ risk-utility analysis in many cases that would have previously been decided under the ordinary consumer expectation test.
All of this said, there is currently another case pending before the Connecticut Supreme Court, wherein the court has sought amicus briefs on the issue of whether Connecticut should abandon the ordinary consumer/modified consumer expectation analysis in favor of Sections 1, 2(b) and 4 of the Restatement (Third) of Torts: Products Liability in design defect cases. Bifolck v. Philip Morris, SC 19310 (Conn.). More to follow…