When Congress enacted HIPAA and its Privacy Rule in the mid-1990s, it was a big deal. Healthcare providers surely protected patient privacy in the pre-HIPAA days, but the federal statute gave them a standard set of rules with which to comply and a uniform referent against which to gauge their privacy practices. All told, HIPAA’s
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.
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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.”
A tip of the cybercap to Harley Ratliff of Shook Hardy for sending us word of a device preemption win on appeal in Connecticut. Mullin v. Guidant Corp., AC29829, slip op. (Conn. App. May 12, 2009). We’d blogged about the trial court decision in Mullins – back when it was the first post-Riegel
On Monday, it’s the aura and majesty of the Supreme Court of the United States, descanting grandiloquently about issues of national importance.
On Tuesday, it’s the Appellate Court of Connecticut droning on about comment (k) to the Restatement.
On this blog, you never know what you’ll get.
Bad news: It’s Tuesday.
In Breen v.