In the waning days of 2016, the Connecticut Supreme Court delivered a significant setback to product manufacturers hoping for adoption of a more stringent burden of proof in strict product liability actions. In Bifolck v. Philip Morris, Inc., Connecticut’s high court sought to clarify the evidentiary burdens set forth in the Connecticut Product Liability Act (CPLA), and whether to abandon its past adherence to § 402A of the Restatement (Second) of Torts in favor of § 2(b) of the Restatement (Third).

Adoption of §2(b) would have required plaintiffs in product liability cases to meet two additional evidentiary elements not expressly required under §402A, namely: (1) that the alleged harm was foreseeable to the manufacturer and (2) that a reasonable alternative design existed, the omission of which rendered the product not reasonably safe. The Court refused to tack on these additional “burdens,” reaffirming its commitment to the ordinary-consumer-expectation test and the modified-consumer-expectation test derived from § 402A.

In doing so, the Court rejected defendant’s arguments that Connecticut’s current regime is confusing and unworkable, and that the Restatement (Third) is more consistent with Connecticut case law and the CPLA statutory scheme. The Court did, however, recognize the ambiguity created by its dual tests, attempting to remediate this issue by renaming the modified-consumer-expectation test as the “risk-utility test” and the ordinary-consumer expectation test as the “consumer-expectation test.”

One small glimmer of hope: although there is little for product manufacturers to celebrate at present, the Court did leave open the possibility that the Third Restatement’s standard could be adopted in the future if the current standards demonstrated themselves to be “unworkable or result in a manifest injustice.”

In addition, the Court addressed a discrete question relating to the applicability of Connecticut’s common-law punitive damages limit to product liability cases under the CPLA. Rather than applying the common-law rule—limiting the prevailing party’s punitive damages to litigation expenses, less costs—the Court applied the statutory rule—which limits the prevailing party’s recovery to two times the amount of compensatory damages.