Bifolck v. Philip Morris, Inc.

Filing 361

ORDER denying 281 Motion in Limine Based on the Statute of Repose. Signed by Judge Stefan R. Underhill on 9/25/17. (Kaas, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

VINCENT J. BIFOLCK,
Plaintiff,

No. 3:06-cv-1768 (SRU)

v.
PHILIP MORRIS, INC.,
Defendant.
MEMORANDUM OF DECISION
On August 10, 2017, I held a hearing on the pending motions in limine. On August 15,
2017, I issued a memorandum of decision in which I outlined the rulings that I made on the
record and wrote separately to clarify those rulings. I deferred ruling on Philip Morris, Inc.’s
motion to exclude evidence based on the statute of repose (doc. # 281). For the reasons that
follow, the motion is denied.
I.

Background
Philip Morris, Inc. (“PM”) seeks an order absolving it from liability for any of its conduct

that occurred prior to May 20, 1992. PM also seeks an order excluding such evidence as
irrelevant. Bifolck responds that this case falls within a well-defined exception to the statute of
repose and that, even if PM cannot be liable for conduct occurring prior to 1992, evidence of
PM’s state of mind prior to 1992 is relevant to the claims of negligence based on conduct
occurring after 1992.
II.

Discussion
Connecticut’s statute of repose for product liability claims provides:
No product liability claim . . . shall be brought but within three years from the
date when the injury, death or property damage is first sustained or discovered
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or in the exercise of reasonable care should have been discovered, except that .
. . no such action may be brought against any party . . . later than ten years
from the date that the party last parted with possession or control of the
product.
Conn. Gen. Stat. § 52-577a. The statute provides for several exceptions, most relevant to this
motion is when “the claimant can prove that the harm occurred during the useful safe life of the
product.” Id. (emphasis added). The “useful safe life” of a product refers generally to its
“normal life expectancy,” and “‘begins at the time of delivery of the product and extends for the
time during which the product would normally be likely to perform or be stored in a safe
manner.’ Under the [Model Uniform Products Liability Act], the useful safe life of a product
expires when the product is no longer ‘likely’ to be safe for ‘normal’ use.” Hubbard-Hall v.
Monsanto Co., 98 F. Supp. 3d 480, 484 (D. Conn. 2015) (citing MODEL UNIF. PRODUCTS LIAB.
ACT § 110(A) (1979)). The duration of a product’s useful safe life is a question of fact to be
resolved by the jury. Id. at 483.
In the instant case, there is no colorable dispute with respect to whether Mrs. Bifolck
smoked Marlboro cigarettes during their useful safe life—Bifolck has indicated that Mr. Bifolck
would be willing to testify to the fact that Mrs. Bifolck smoked her cigarettes shortly after
purchasing them. The more difficult question is whether Bifolck is able to establish that Mrs.
Bifolck experienced a harm during the safe life of the cigarettes that she smoked. That question
turns on the manner in which one defines harm. If the harm is the existence of lung cancer,
Bifolck may not be able to take advantage of the useful safe life exception because there is no
evidence that her lung cancer manifested itself during the useful safe life of the cigarettes that
she smoked prior to 1992. If, however, the harm is the inhalation of smoke from Marlboro and
Marlboro Light cigarettes, which contained unreasonably high amounts of tar and nicotine, then
Bifolck may be able to show that the harm occurred during the useful safe life of those cigarettes.
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Under Connecticut law, an “injury is first sustained,” for statute of limitations purposes,
“when a party suffers some form of actionable harm.” Burns v. Hartford Hosp., 192 Conn. 451,
460 (1984). A plaintiff suffers an “actionable harm” when there is a manifestation of “some
form” of injury. Id. “The harm need not have reached its fullest manifestation before the statute
begins to run.” Id. By referring to “actionable harm” and not merely “harm,” Connecticut courts
are at least implicitly distinguishing between two types of harm. “Actionable harm” is
synonymous with “legal injury.” Lagassey v. State, 268 Conn. 723, 748 (2004). Regular
“harm,” on the other hand, has no specific definition. Rather, it may be defined using its
ordinary definition. Harm is defined as “injury, loss, damage; material or tangible detriment.”
Black’s Law Dictionary (10th ed. 2014). Using that definition of the term, Bifolck was certainly
harmed each time she smoke a cigarette because the cumulative effect of those cigarettes had a
detrimental effect on her health. See Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 430 (2d
Cir.), certified question accepted, 21 N.Y.3d 937 (2013), and certified question answered, 22
N.Y. 3d 439 (2013) (quoting Snyder v. Town Insulation, Inc., 81 N.Y.2d 429 (1993)) (harm from
inhalation of product may occur “at the moment the [product] was inhaled even though plaintiff
may not have been aware of it then”). Each cigarette contributed to the ultimate harm—a harm
that manifested itself long after the inhalation of the first cigarettes.
That construction of “harm” comports with the manner in which the useful safe life
exception has been assessed. In Hubbard-Hall, the Court considered a suit against a
manufacturer of paint containing PCBs for compensatory damages that resulted from the
contamination of plaintiff’s property. See Hubbard-Hall, 98 F. Supp. 3d at 480. There, even
though the actionable harm did not manifest itself until many years later when the Environmental
Protection Agency and the Connecticut Department of Environmental Protection ordered the

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plaintiff to remediate the contaminated property, the Court held that the original contamination
occurred during the useful safe life of the paint, thus exempting it from the statute of repose. See
id. at 486. Such a holding bolsters my conclusion that “harm” for the purposes of the useful safe
life exception is distinct from “actionable harm,” as described in the statute of limitations
context.
Moreover, the purpose of the products liability statute of repose is not undermined by
such a construction of harm for purposes of the useful safe life exception. The purpose of
section 52-577a is to prevent manufacturers from being held liable for defects in their products
occurring long after the product left the manufacturer’s possession or control. See Zapata v.
Burns, 207 Conn. 496, 509 (1988) (purpose is to protect defendant from stale claims). The
statute creates a specific exception, however, for harms that occurred within the useful safe life
of the product. As described by “one of the product liability act’s main proponents,” see Gerrity
v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 128 (2003), one of the main purposes of that
exception is to protect “those harmed by the inhalation or ingestion of chemicals, drugs or
substances where the damage done may not be known for many years.” See Remarks of Sen.
Salvatore DePiano, Transcript of Senate Floor Debate, May 29, 1979, 22 Senate Proceedings,
Part 14, 1979 Session, pp. 4625-4650. Sen. DePiano cited to various types of injuries that would
be actionable under the useful safe life exception, which included “asbestos injuries, radiation
injuries,” and the “ingestion of DES.” Id. Those harms are similar to the inhalation of cigarette
smoke in that the harm may be found to occur at the moment of ingestion/inhalation, but does
not manifest itself until much later. Sen. DePiano’s testimony makes it unlikely, in writing such
an exception, the Connecticut state legislature intended that the term “harm” only include harm
that manifests itself during the useful safe life of the product. If it had, it would have used a term

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such as “injury” or “actionable harm.” By using the term “harm,” the Connecticut legislature
recognized that a harm that occurred during the useful safe life of a product was actionable even
if the injury occurred years later. See id.
In the instant case, Bifolck will likely be able to show that Mrs. Bifolck smoked
Marlboro and Marlboro Light cigarettes during the useful safe life of those products. Bifolck’s
experts will likely testify that the cigarettes she smoked eventually caused her lung cancer.
Because each cigarette could be found to be a contributing factor to the ultimate injury, Bifolck
will likely be able to establish that she suffered a harm each time she inhaled a Marlboro and
Marlboro Light cigarette, thus falling squarely within the useful safe life exception to the statute
of repose.
III.

Conclusion
Bifolck’s allegations fall within the “useful safe life” exception to the statute of repose,

and, therefore, PM may be held liable for conduct occurring prior to 1992. Accordingly, PM’s
motion (doc. # 281) is denied.
So ordered.
Dated at Bridgeport, Connecticut, this 25th day of September 2017.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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