Today’s guest post is by Adam M. Masin, a partner at Shipman & Goodwin LLP. It’s about the most significant general Connecticut product liability decision in almost 20 years. It’s not a drug/device case, though. Instead it involves tobacco. But make no mistake about it, this case could affect our sandbox – particular design defect cases involving medical devices.
As always our guest posters deserve all the credit, and any blame, for the contents of their posts.
Finally – be sure to read the repeated IMPORTANT ANNOUNCEMENT at the end of this post. DDLaw blog is getting ready to move, and that means you’ll have to resubscribe to continue getting our posts. But don’t worry, it’s easy.
The Connecticut Supreme Court this month clarified how Connecticut distinguishes between the use of the “ordinary consumer expectation test” and the “modified consumer expectation test” in strict product liability design defect cases. Izzarelli v. R.J. Reynolds Tobacco Co., ___ A.3d ___, 321 Conn. 172 (2016). Not to confuse things from the start, but Court’s key holding was that the “modified consumer expectation test” is now the “primary strict liability test.” In other words, the prior ordinary test in Connecticut is no longer the ordinary test, and the primary test is the modified test. Just so we are clear. Wordplay aside, this is an unfortunate through probably unsurprising development in a state that still has a ways to go to firm up its product liability law (more on that below).
Some background helps to clarify how a “modified” test supplanted an “ordinary” test. As the Court noted, Connecticut was one of the first states to adopt § 402 of the Restatement (Second) of Torts. (Connecticut was also the first state to adopt a speed limit restriction for cars − a blazing 12 MPH). [Editor’s note, both make about the same amount of sense these days.] Connecticut interpreted § 402 to require a plaintiff alleging a strict liability claim to prove, amongst other things, “the product was in a defective condition unreasonably dangerous to the consumer or user.” Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 234 (1980). Connecticut interpreted that element to mean, based on comment (i) to § 402, 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.” That became known as the “ordinary consumer expectation test.”
In 1997, the Connecticut Supreme Court in Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199 (1997), finally noticed that the “ordinary consumer expectation test” did not adequately address “the problem of complex products for which a consumer might not have informed safety expectations.” It of course doesn’t make a whole lot of sense to apply a consumer expectations test to a product about which a consumer would not have reasonable expectations.
So the Potter Court’s solution was to create a “modified consumer expectation test” whereby the jury would be asked to “weigh the product’s risks and utility and then inquire, in light of those factors, whether a ‘reasonable consumer would consider the product design unreasonably dangerous.’” The Potter court decided that the “ordinary consumer expectation test” would “when the everyday experience of the particular product’s users permits the inference that the product did not meet minimum safety expectations.” That required proof of an incident “so bizarre or unusual” that expert testimony would not be required to conclude that the product failed to meet the consumer’s expectations. One might imagine what qualified as “so bizarre or unusual.” For the most part, one had to imagine because so few Connecticut state courts were faced with deciding that issue in the subsequent years.
As the Izzarelli Court noted, Connecticut state courts had limited opportunities to determine what test would be appropriate under what circumstances because actions under Connecticut’s product liability act were typically brought in federal court. Those decisions − including a recent federal court case involving combination hormone replacement therapy, Moss v. Wyeth, Inc., 872 F. Supp.2d 162, 166 (D. Conn. 2012) − were all over the map. The Moss decision, for example, predicted that that both tests applied somehow before launching into a discussion of the learned intermediary doctrine. In fact, the reason Izzarelli finally addressed this issue was because it answered a certified question from the Second Circuit, but the Connecticut Supreme Court actually had to expand on Second Circuit’s question in order to clear up the confusion.
Fortunately for good lawyering, the Izzarelli Court now makes it clear that the modified consumer expectation test is the primary or “default” test in Connecticut in a strict product liability action based on defective design. The “ordinary consumer expectation test” is reserved for “res ipsa type cases” when the product failed to meet “the ordinary consumer’s minimum safety expectations.” (the Court’s italics, not ours). The Court did not define “minimum” and it later referred to “legitimate, commonly accepted minimum safety expectations,” without much indication of what those words meant either. But the Court’s italics and the result of the case indicate that the safety bar is set really, really low for purposes of clearing the ordinary consumer expectation test − so low that the Court held that a cigarette that exposes a user to the risk of cancer cannot be said to fail to meet minimum safety expectations.
Don’t be tempted to view that as a defense-friendly result. It isn’t. It actually means, as the Court stressed at length, that Connecticut will allow strict liability design defect claims to proceed under a “risk-utility” analysis even when the consumer knows about the danger. As the Court put it, a “product might meet the consumer’s minimum safety expectations because the product’s dangers are known or obvious but nonetheless be defective because it could have been designed to be less dangerous without unreasonably compromising cost or utility.” The Court also held that expert testimony on product design is not needed to prove the product’s defect. So at least we in Connecticut don’t need to argue about “bizarre and unusual” incidents anymore to handle these cases. The bizarre and unusual in our cases will still likely come up, only now only in the context of plaintiffs’ expert opinions. Despite the fact that Connecticut does not require experts in this context, as a practical matter we don’t expect too many situations in our area of the law when a plaintiff’s lawyer won’t trot out a bunch of experts.
Izzarelli goes a long way to clarify what needs to be shown in a strict product liability case in Connecticut, so its at least helpful in that regard. It’s worth noting, however, that Izzarelli does not clarify many of the pharmaceutical product-specific issues discussed in Moss, so the Connecticut Supreme Court has ample room to develop that law. In addition, as the Izzarelli Court noted, the Connecticut Supreme Court is in the middle of writing a decision that will likely clarify how these principles apply to a product liability claim for negligence and will also clarify Connecticut’s law on punitive damages. Stay tuned.
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