Connecticut Supreme Court Fundamentally Changed Product Liability Law in Soto v. Bushmaster Firearms International, et al.
The Connecticut Supreme Court made national news this month when it issued a landmark decision in a case arising from the horrific mass shooting at Sandy Hook Elementary School. In Soto v. Bushmaster Firearms International, et al., the Court held that Connecticut law permits, and federal law does not preempt, certain state-law civil claims by families of the Sandy Hook victims against the companies that manufactured and sold the gun used in the massacre. Understandably, the public policy and federal preemption issues dominated the national headlines. As we observed elsewhere, Soto also has broad implications for the general Connecticut business community because the opinion expanded the reach of the Connecticut Unfair Trade Practices Act (CUTPA).
We write today concerning another aspect of the decision: the profound implications of Soto on product liability law in Connecticut. For companies making, distributing, or selling products in Connecticut, two of the Court’s holdings are of consequence. First, the Court concluded that personal injury, including wrongful death, is a type of harm cognizable under CUTPA. Second, and relatedly, the Court held that the Connecticut Product Liability Act (CPLA) does not preempt CUTPA claims based on the wrongful marketing of a product.
These holdings fundamentally change the law in Connecticut. Before Soto, it was generally understood that the sale of a product resulting in personal injury, death, or property damage could give rise to—and only to—a product liability claim. The language of the CPLA made this plain. Under the statute, a “‘[p]roduct liability claim’ includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product.” Conn. Gen. Stat. § 52-572m(b). Moreover, product liability claims are exclusive, preempting “all other claims against product sellers . . . for harm caused by a product.” Conn. Gen. Stat. § 52-572n(a). Accordingly, the Connecticut Supreme Court previously allowed a CUTPA claim alongside a CPLA claim only where an altogether separate injury (that is, besides personal injury, wrongful death, or property damage) had been alleged. For example, in Gerrity v. R.J. Reynolds Tobacco Co. (2003), the Court permitted a CUTPA claim to accompany a CPLA claim where the plaintiff alleged financial injuries arising from an artificially inflated price for the product, as well as wrongful death.
Soto is markedly different because no financial injury was alleged. The Court simply allowed the CUTPA claim to proceed based on alleged wrongful marketing of a product that resulted in personal injuries and death. In the Court’s view, wrongful marketing did not equate to a product defect and consequently did not fall within the purview of the CPLA. However, as exemplified by our model jury instructions, it is well established that a failure to provide “adequate warnings or instructions, where they are necessary, constitutes a product defect,” and the CPLA text itself does not distinguish between “warnings,” “instructions,” and “marketing” in defining a “product liability claim.” In other words, the Court did not explain how—under the plain text of the CPLA and law applying it—a failure to warn constitutes a product defect, while wrongful marketing does not.
Regardless of what happens at the U.S. Supreme Court with federal preemption, these purely state-law holdings will remain intact. This is significant because there are unique incentives for bringing claims under CUTPA, a statute enacted to enable and encourage so-called “private attorneys general”—that is, the pursuit by private attorneys of lawsuits deemed to be in the public interest. Most fundamentally, CUTPA, unlike the CPLA, permits the recovery of attorneys’ fees. Also, unlike the CPLA, which caps punitive damages at twice the amount of compensatory damages, CUTPA places no limit on punitive damages (other than the constitutional State Farm considerations). For these reasons, we expect to see an increase of alleged CUTPA claims alongside CPLA claims (or, in unusual circumstances, CUTPA claims instead of CPLA claims).
For further information, please contact Kevin Smith, Chair of the firm’s Product Liability Defense Practice Group.