Nature of the Case
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Facts
Bifolck (P), as executor of the estate of his wife commenced this action against Philip Morris (D), Inc., after the decedent succumbed to lung cancer at the age of forty-two. P claims that Marlboro and Marlboro Light cigarettes were defectively designed and that this defective design was responsible for her lung cancer and death from that disease. P seeks compensatory and punitive damages. P alleged that D's cigarettes were defective and unreasonably dangerous in that their design rendered the cigarettes unnecessarily addictive and unnecessarily carcinogenic. P alleged that D (1) added ingredients, including carcinogenic ingredients, that altered the natural form of the tobacco in the cigarettes, and (2) utilized manufacturing processes that affected the composition and form of the tobacco and nicotine, as well as the manner in which the cigarette smoke was transmitted to the smoker. P alleged that D had failed to conform to the applicable standard of care by knowingly designing the cigarettes in a manner that enhanced their addictive and cancer-causing nature and by failing to take available measures to reduce the cigarettes' addictive, toxic, and cancer-causing ingredients/properties. Judgment was rendered in the District Court in another action against a different cigarette manufacturer on the basis of similar allegations of strict liability and negligence. That court certified the following question to this court: 'Does [comment (i)] to § 402A of the Restatement (Second) of Torts preclude a suit premised on strict products liability against a cigarette manufacturer based on evidence that the defendant purposefully manufactured cigarettes to increase daily consumption without regard to the resultant increase in exposure to carcinogens, but in the absence of evidence of adulteration or contamination?' The trial in the present case was postponed to await this court's response. The District Court then certified two additional questions to this court for advice: (1) 'Does [§] 402A of the Restatement (Second) of Torts (and comment [i] to that provision) apply to a product liability claim for negligence under [the act]?'; and (2) 'Does Connecticut's [common-law] rule of punitive damages apply to an award of statutory punitive damages pursuant to [General Statutes] § 52-240b, the punitive damages provision of the [act]?' This court then advised that comment (i) to § 402A did not preclude the strict liability theory advanced. Although the two tests available under our law-the ordinary consumer expectation test and the modified consumer expectation test-both apply § 402A's unreasonably dangerous standard, 'the modified consumer expectation test is our primary strict product liability test, and the sole test applicable to the present case. The court issued an order to the parties in the present case seeking supplemental briefs on the following questions: (1) whether, for product liability actions premised on design defects, this court should abandon the ordinary consumer expectation test/modified consumer expectation test and adopt §§ 1, 2 (b) and 4 of the Restatement (Third), with or without the associated commentary; and (2) if so, whether there is any reason why this court should not apply the Restatement (Third) standard to cases pending before a trial court, like the present case. P urges us not to abandon our dual Restatement (Second) tests. D urges us to adopt the Restatement (Third), characterizing it as consistent with our case law, our act, and litigation practice.
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