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Conn. Court Says State Law Doesn't Bar Smokers' Lawsuits Against Tobacco Companies

April 26, 2016

Christian Nolan, The Connecticut Law Tribune -- A woman who developed cancer after years of smoking Salem cigarettes is one step closer to collecting a $28 million judgment against tobacco manufacturer R.J. Reynolds.

The Connecticut Supreme Court ruled on April 25 that lawsuits against cigarette manufacturers aren't prohibited by an exemption in Connecticut's tort liability law. The court was asked to decide the issue by the U.S. Court of Appeals for the Second Circuit, which is considering R.J. Reynolds Tobacco Co.'s appeal of a 2010 Connecticut federal court award.

"It would be contrary to the public policy of this state to incorporate the exceptions in [the law] 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," concluded Justice Andrew McDonald in the 27-page decision.

The Supreme Court decision was unanimous, though Justices Peter Zarella and Carmen Espinosa authored a lengthy concurring opinion.

The case has drawn national interest, with the Public Health Advocacy Institute and the American Association for Justice, an advocacy group for plaintiffs trial lawyers, filing amicus briefs. The Connecticut Attorney General's Office also filed an amicus.

Barbara Izzarelli was in her early teens in the 1970s when she began smoking Salem cigarettes. She was soon hooked by the nicotine. She smoked heavily every day—all day—for more than 20 years. In 1996, at age 36, she developed larynx cancer. The following year she underwent a total laryngectomy. That was followed by radiation and chemotherapy treatments. The Norwich woman can no longer breathe through her mouth or nose; she uses a tube in her throat. Her diet consists of soft foods such as pudding and mashed potatoes.

Izzarelli filed a product liability claim in federal court, through her lawyer, David Golub, of Silver Golub & Teitell in Stamford. After a monthlong trial in April and May 2010, the jury awarded $13.6 million in damages. The jury held that the Salem cigarettes were unreasonably dangerous and defectively designed and that R.J. Reynolds had acted with reckless disregard for the safety of consumers.

However, jurors said Izzarelli was 42 percent at fault for smoking all those Salems. So the jury award was reduced to $8 million. About seven months later, U.S. District Judge Stefan Underhill awarded $4 million more in punitive damages.

In 2011, Underhill awarded an additional $15.7 million in offer of compromise interest. Golub said his side had offered to settle for $400,000 in 1999 when the lawsuit was filed.

Izzarelli's case was the first smoker's case to go to trial in Connecticut and the first jury verdict against a tobacco company in New England.

Golub also represented Izzarelli in the Supreme Court case. Theodore M. Grossman of Jones Day in New York City and Jeffrey White of Robinson & Cole represented R.J. Reynolds.

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