By Georgia D. Koutouzos, J.D.
Claims by a woman whose hair allegedly had fallen out after she used a hair relaxer failed to establish failure to warn, manufacturing defect, or justifiable reliance claims against the product’s manufacturers, a Pennsylvania federal court determined. The customer failed to read all the warnings and/or instructions provided with the product, failed to conduct a strand test before applying the product as directed in those instructions, and failed to provide evidence to support an inference that a manufacturing defect in the product was the proximate cause of her injury, the court held, granting summary judgment favoring the manufacturers on all claims (Chandler v. L’Oreal USA Inc., September 14, 2018, Fischer, N.).
A woman who claimed that she had experienced traumatic alopecia of the scalp after having used Defy Breakage—an at-home hair relaxer product manufactured and sold by L’Oreal USA, Inc. and Soft Sheen-Carson, Inc.—filed suit against the companies, asserting causes of action for strict liability, negligence, breach of implied warranty, and fraud, as well as violations of the state consumer protection/unfair trade practices law. The manufacturers moved for summary judgment, arguing that the customer did not present sufficient evidence to demonstrate that the at-issue relaxer was defective or that the product’s advertising contained any misrepresentations on which she justifiably had relied.
Failure to warn. The court found that the customer did not provide sufficient evidence to establish a genuine dispute of material fact for trial on her failure to warn claims. A reasonable jury could not conclude that the warnings provided were inadequate, the court said, adding that no evidence was presented to demonstrate that an adequate warning might have prevented the alleged injury. The record was undisputed that the customer had not read the warnings on the Defy Breakage relaxer box’s exterior and, although she had read the warnings/instructions provided inside the box, she conceded that she had ignored them.
The product’s packaging and instruction sheet clearly warn consumers that failure to follow the written instructions could result in injury, including permanent hair loss. In addition, the record was undisputed that the customer had applied the relaxer to her hair without having conducted a strand test which, as repeatedly noted in the product’s instructions, is necessary because the product is not suitable for all hair types. Moreover, the purposes of the test are to ensure that the product reacts properly to the user’s hair and to determine how long the product should be left in the hair after application.
The customer failed to adduce any evidence supporting her position that the exterior warnings and instructions on the product’s package were inadequate. In addition, despite claiming the provided warnings were insufficient, she did not present any evidence of an alternative warning that would have protected her from the harm she allegedly sustained. Absent such evidence, a jury would have to speculate in order to find in the customer’s favor, the court opined, finding that she failed to meet her burden to establish a genuine dispute of material fact on her failure to warn claims. Accordingly, summary judgment favoring the manufacturers was warranted as to the customer’s strict liability and negligent failure to warn claims.
Manufacturing defect. The customer also failed to present any direct evidence of a specific manufacturing defect in the Defy Breakage relaxer, the court advised. To that end, she admitted that she had not retained any portion of the product applied to her hair; therefore, the allegedly defective product could not be evaluated (by an expert or otherwise) to determine if it adhered to product specifications. Similarly, the customer did not introduce any evidence of a defect in the entire batch or line of relaxer products from which the specific box she purchased had been manufactured.
Furthermore, the customer did not meet her burden of demonstrating a genuine dispute of material fact that Defy Breakage relaxer was defective under the malfunction theory. As discussed above, she had used the product on a single occasion and had admitted that she did not adhere to all the provided instructions/warnings in that she did not conduct a strand test to determine how her hair would react to the product or how long it should be applied. Given those admissions, a reasonable jury could not infer that an unspecified defect caused a malfunction when the more likely explanation was the abnormal use.
Beyond those deficiencies (which precluded a finding that the product had malfunctioned), the customer failed to present any of the other types of potential evidence to support an inference that a manufacturing defect in the product was the proximate cause of her injury. Indeed, the only evidence introduced into the record consisted of excerpts of the customer’s deposition, her responses to interrogatories, and the product’s packaging and instructions. As such, she failed to present any of the following: (1) expert testimony as to a variety of other possible causes; (2) evidence of similar accidents involving the same product; (3) evidence eliminating other possible causes; or (4) proof tending to show that this type of injury does not occur absent a defect in the product.
Therefore, because the customer failed to meet her burden to put forth evidence demonstrating a genuine dispute of material fact that the Defy Breakage relaxer was defective, summary judgment favoring the manufacturers was warranted as to her claims relying upon proof of a manufacturing defect, i.e., strict liability and breach of implied warranty of merchantability.
Misrepresentation/justifiable reliance. As for the customer’s common-law fraud and product liability claims under the state consumer protection/unfair trade practices statute, she did not meaningfully respond to the manufacturers’ position that her deposition testimony undermined her claim that she had justifiably relied on any of the alleged misrepresentations on the product’s packaging. The customer testified that when she had purchased the Defy Breakage relaxer, she had not looked at the exterior packaging other than to determine the strength of the product, which was listed on the box as "regular." The customer admitted that she had not read any of the warnings on the exterior of the box or the list of ingredients therein.
Thus, there simply was no evidence in the record that the customer actually had read the alleged misrepresentations in the product’s marketing when she purchased and/or used the product, let alone relied on any of those statements to her detriment. Without such evidence, the customer failed to meet her burden to create a genuine dispute of material fact for trial; consequently, summary judgment favoring the manufacturers was warranted on the statutory unfair practices and fraud claims.
The case is No. 17-1141.
Attorneys: Samuel J. Davis (Davis & Davis) for Kim E. Chandler. Daniel R. Michelmore (Jackson Kelly PLLC) for L'Oreal USA, Inc. and Soft Sheen-Carson LLC.
Companies: L'Oreal USA, Inc.; Soft Sheen-Carson LLC
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