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March 2, 2018
By Karen Florin, The Day (March 1, 2018) -- The U.S. Supreme Court has declined to take up cigarette-maker R.J. Reynolds' appeal of former Norwich resident Barbara Izzarelli's $28 million jury award for smoking-related cancer, a development her attorney said signals that Connecticut is a favorable state to bring lawsuits against tobacco companies.
Izzarelli, then of Norwich, sued the Winston-Salem, N.C., company in 1999 after having her larynx removed at age 36 due to laryngeal cancer. She had started smoking Salem Kings menthol cigarettes in the 1970s, at age 13, during a time when the company reduced the amount of nicotine in the cigarettes in order to induce addicted people to smoke more, according to her attorney, David S. Golub.
Izzarelli, who is now 57 and living in Florida, speaks in a heavy rasp through a voice box and has trouble eating, Golub said.
"She's now getting a lot of money for very serious injuries," he said. "That's deserved."
Theodore Grossman, a New York City attorney who represented R.J. Reynolds, did not respond to requests for comment.
Golub, from Silver Golub & Teitell's Stamford office, had represented Connecticut in a multi-state class-action lawsuit against tobacco companies that in 1998 resulted in a $246 billion settlement of which Connecticut was to receive between $3.6 billion and $5 billion over 25 years.
In 1999, Golub took Izzarelli's case because he said he wanted lawyers to see that in Connecticut one successfully could sue tobacco companies on behalf of individuals. The case took longer than he expected, moving from federal court to state court and back to federal court, before the U.S. Supreme Court on Monday published an order denying Reynolds' petition for a writ of certiorari, which is a request for the court to review the decision of a lower court.
All of the technical defenses and arguments that cigarette companies have made, including claims that they could not be sued for distributing a defective product as long as the tobacco wasn't adulterated, or that they are immune from lawsuits, have been rejected in the Izzarelli case, Golub said.
"What this really means is that Connecticut law is very favorable for doing lawsuits against tobacco companies," he said.
The case began in U.S. District Court in Bridgeport, where a jury in 2010 determined that the tobacco company was 58 percent responsible for her injuries and that Izzarelli was 42 percent responsible for her injuries.
The jury awarded Izzarelli $12 million, but federal Judge Stefan R. Underhill added nearly $16 million in interest to the award based on a state law that holds tobacco companies liable for interest if they refuse reasonable settlement offers while a case is pending. The interest was calculated from 1999, when the lawsuit began. Golub said that in 2001, the plaintiffs had offered to settle for $400,000.
In denying the tobacco company's motion for a new trial, the judge found that the evidence at trial was sufficient to support the jury determination that Salems were unreasonably dangerous and that R.J. Reynolds could have made the product less addictive and with fewer carcinogens.
Reynolds appealed to the 2nd U.S. Circuit Court of Appeals in New York, which determined its product liability case was a matter for a state court and asked the Connecticut Supreme Court to take the case. The state Supreme Court ruled in 2016 that an exemption in liability law did not apply and that cigarette manufacturers are not immune to lawsuits by smokers who get sick.
The U.S. Supreme Court's denial to reconsider the state Supreme Court's decision ended the nearly 20 years of litigation.
Tobacco cases remain difficult to prove, according to Golub, and a plaintiff's chances of success varies from state to state. Florida allows class-action lawsuits, and hundreds of cases are pending in that state, he said.