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Two federal judges are asking the Connecticut Supreme Court to define the bounds of unfair trade practices and products liability law. While it’s crystal clear the state’s 1979 Products Liability Act replaces traditional tort and contract remedies in defective product suits, it is totally unclear whether the PLA also excludes claims under the Connecticut Unfair Trade Practices Act. Substantial money damages may hang on this question. Unlike the PLA, under the CUTPA, a judge has the discretion to award punitive damages — which could be adjusted as high as necessary to sting a big corporate defendant. Conversely, the PLA formula for punitive damages is no more than twice actual damages. In January, the state supreme court agreed to consider the issue, on request of U.S. District Judge Janet Arterton in a case against a cigarette lighter company. Next, U.S. District Judge Dominic Squatrito asked a nearly identical question in his April 19 order in Gerrity v. R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co., Connecticut’s first cigarette case in the wake of the $206 billion 1998 nationwide settlement with the tobacco industry. In the cigarette lighter case, Michael A. Stratton, a partner in Bridgeport, Conn.’s Koskoff, Koskoff & Bieder, represents four family members who died or were badly burned in a Bridgeport house fire allegedly caused by a child using the “Aim ‘n Flame” barbecue lighter. In addition to claiming the lighter was defective, the plaintiffs alleged the failure to make the lighter child-resistant and not to recall the lighters were unfair trade practices that violated CUTPA. Scripto, the lighter manufacturer, is represented by James H. Rotondo, of Hartford-based Day, Berry & Howard. In the tobacco case, the plaintiff’s lawyers are David S. Golub, of Stamford, Conn.’s Silver, Golub & Teitell, and Elliot B. Gersten, of Hartford, Conn.’s Gersten & Clifford. Reynolds is represented by Hartford-based Robinson & Cole and Lorillard is defended by Fogarty, Cohen, Selby & Nemiroff of Greenwich, Conn. For purposes of argument, Reynolds and Lorillard have stipulated to harsh claims drawn from the plaintiff’s complaint, agreeing that “cigarettes are defective and unreasonably dangerous because they are addictive and cause lung cancer,” and that the tobacco defendants designed and manufactured their cigarettes to enhance this. Further, they stipulate that Lorillard warranted its cigarettes safe, agreeing to advise consumers if it discovered otherwise, and that the late Judith Gerrity relied on those warranties and suffered injuries as a result. The companies stipulate they “engaged in an industry-wide scheme to defraud consumers into believing there was a genuine scientific dispute” about cigarettes’ addictiveness and health danger, and also hid evidence of addictiveness, increased nicotine levels and targeted minors in their advertising. If the cases are limited to PLA claims alone, far less evidence would be admissible, the plaintiffs’ lawyers say. If the tobacco plaintiffs are allowed to show historic unfair trade practices, it would involve the far-ranging history of the tobacco defendants’ ad campaigns — a different issue than the basic medical dangerousness of cigarettes. Rotondo, the Day, Berry lawyer representing defendants in Strange v. Scripto Tokai, Inc., said the supreme court is expected to take up the issue next fall. He co-authored a Connecticut Bar Review article on the preclusive effect of the PLA on CUTPA (viewable at dbh.com/claims.htm). It analyzes over 20 trial court decisions since 1986, most of which adopt a “functional equivalent” test, barring CUTPA claims for all injuries that could be pled and compensated under the PLA. The parties are considering how to consolidate the two certified cases, said Golub. In his view, if the state’s high court were to disallow CUTPA in products cases, the unfair trade law’s consumer protection would mainly be limited to service businesses. Stratton and Golub both say that it is clear from the PLA’s legislative history that lawmakers never intended to preclude statutory actions, such as antitrust and unfair trade claims. They cite bill sponsor Sen. Salvatore Depiano during debate, that the PLA is “not intended to affect other statutory schemes such as anti-trust or the state unfair trade practices act.” Rotondo’s law review article says that when Depiano made that comment, no clash of the two laws was evident because CUTPA had yet to be used to redress harm caused by a product.

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