Miller v. Coty, Inc. et al

Filing 126

MEMORANDUM AND OPINION by Senior Judge Charles R. Simpson III on 2/20/2019. Parties shall comply as set forth in Order. cc: Counsel (RLJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

MAY MILLER and
TIMOTHY MILLER
vs.

PLAINTIFFS

CIVIL ACTION NO. 3:14-CV-443-CRS

COTY, INC. and
COTY US, LLC

DEFENDANTS

MEMORANDUM OPINION AND ORDER
I.

Introduction
This matter is before the Court on Plaintiffs’ proffer of consumer complaints in compliance

with the Court’s December 12, 2018 Order (DN 98). DN 116. The Defendants responded to
Plaintiffs’ proffer of consumer complaints (DN 120), to which Plaintiffs replied (DN 125).
Following an extensive review, the Court will allow Plaintiffs to offer some consumer complaints
at trial on the grounds that the complaints are “substantially similar” to the injury in this case,
while excluding others.
II.

Background
On December 12, 2018, this Court ruled on a motion in limine of Defendants Coty, Inc.

and Coty, US, LLC (collectively, “Coty”) to exclude evidence concerning prior consumer
complaints. In its December 12, 2018 Memorandum Opinion, the Court detailed the Sixth Circuit
standard for evaluating the admissibility of consumer complaints:
As a threshold matter, prior accidents must be ‘substantially similar’ to the one at
issue before they will be admitted into evidence. Koloda v. General Motors Parts
Div., General Motors Corp., 716 F.2d 373, 376 (6th Cir. 1983). Substantial
similarity means that the accidents must have occurred under similar circumstances
or share the same cause. See Brooks v. Chrysler Corp., 786 F.2d 1191, 1195 (D.C.
Cir.), cert denied, 479 U.S. 853, 107 S.Ct. 185, 93 L.Ed.2d 119 (1986) (“[e]vidence
of prior instances is admissible on the issues of the existence of a design defect and

a defendant’s knowledge of that defect only if a plaintiff shows that the incidents
‘occurred under circumstances substantially similar to those at issue in the case at
bar’”) (quoting McKinnon v. Skil Corp., 638 F.2d 270, 277 (1st Cir. 1981)) … The
Plaintiff has the burden of proving the substantial similarity between prior accidents
and his own. Lewy v. Remington Arms Co., 836 F.2d 1104, 1109 (8th Cir. 1988).
Rye v. Black & Decker Mfg. Co., 889 F.2d 100, 102 (6th Cir. 1989).
In this case, May Miller sustained an injury while using a “Sally Hansen Extra Strength
All-Over Body Wax Kit.” DN 68, at 1. Specifically, the injury occurred while Timothy Miller
was waxing May’s pubic area. Id. at 2. The injury occurred while Timothy was waxing a section
of hair on May’s left labia majora. Timothy explained that he applied the wax to May’s left labia
majora, held the skin taut, and pulled the strip. DN 53, Ex. 1, 16–18. As he pulled the strip, the
skin on May’s labia majora tore and May started bleeding. Id. at 18; DN 53, Ex. 2, 40.
Immediately following the injury, May experienced bruising and swelling around the injury site.
DN 53, Ex. 2, 42.
Based on the “substantially similar” standard, the Court excluded consumer complaints a)
involving an injury with no reference to the consumer’s bikini, vaginal, pubic, or genital area; and
b) regarding the Sally Hansen Lavender Wax Kit. DN 98. The Court also held that, without more
context, it could not rule on the remaining consumer complaints. Accordingly, the Court ordered
Plaintiffs to proffer any of the remaining consumer complaints if they wished to introduce the
complaints at trial. However, in keeping with the “substantially similar” standard, the Court
provided parameters for the remaining consumer complaints. Thus, the Court’s December 12,
2018 Order permitted Plaintiffs to proffer prior complaints from (1) the Sally Hansen Extra
Strength All-Over Body Wax Kit, which (2) involved an injury (3) associated with the removal of
the product from the consumer’s bikini, vaginal, pubic, or genital area. Id.

2

III.

Discussion
Plaintiffs’ proffer contains individual adverse event reports, in addition to a spreadsheet

containing thousands of complaints wherein Plaintiffs highlighted the complaints they wish to
admit at trial. Coty has briefed their objections utilizing a table. The Court finds that method is
also appropriate to organize its analysis of the complaints. The adverse event reports contain the
full names of the complainants, while the spreadsheet contains only first names. The Court will
use the complainants’ initials instead of the full name to identify the complaint, but will use the
first name where only the first name is given.
A. Consumer Complaints from the Lavender Spa Wax Kit
Plaintiffs acknowledge the Court’s Order precluding introduction of consumer complaints
concerning the Lavender Wax Kit. DN 116. Plaintiffs state that “Coty insufficiently segregates
consumer complaints based on wax types,” and Plaintiffs “specifically omitted Lavender Wax
complaints which were unambiguous based on consumer reference.” Id. (emphasis added).
Purportedly this means Plaintiffs proffered complaints that were ambiguous regarding which
product the consumer used.
The proffered complaints contain three different Item/UPC codes: 1) “Sally Hansen Spa
Wax Hair Removal Kit for Body;” 2) “SH Brazilian Extra Strength Wax Hair Removal Kit for
Body;” and 3) “SH Brazilian Extra Strength All-Over Body Wax Kit.” Compare for example DN
116-1, at PageID# 1168 and DN 116-1, at PageID# 1165 and DN 116-1, at PageID# 1192. Coty
objects to admission of any complaint containing the “Sally Hansen Spa Wax Hair Removal Kit
for Body” Item/UPC code, asserting that those complaints are from the Lavender Wax Kit and are
in violation of the Court’s Order. DN 120, at 2 (citing Exhibit 3). In Plaintiffs’ Reply, Plaintiffs

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“[u]pon further evaluation, and based upon the representations made by the Defendants in their
Response” withdraw the ambiguously branded “Lavender Wax” complaints. DN 125, at 1–2.
The following complaints were withdrawn1 by Plaintiffs as being from the Lavender Wax
Kit (i.e., a different product) and will be excluded at trial:
DN 116-1, PageID#

Bates ID

Complainant

1168–69

Coty000306

C.I.

1170–74

Coty000301

J.H.

1175–77

Coty000298

N.Z.

1178–80

Coty000285

S.B.

1181–82

Coty000286

M.H.

1183–84

Coty000273

F.I.

1185–86

Coty000277

M.W.

1187–88

Coty000279

R.K.

1194

Coty000182

Faryn

1195

Coty000183

Maroulia Jane

In Plaintiffs’ Reply, Plaintiffs “reserve the right to revive these consumer complaints at trial pending testimony
regarding Defendants’ record keeping practices.” DN 125, at 1.
1

4

1195

Coty000183

Nancy

1196

Coty000184

Mary

1196

Coty000184

Christina

1197

Coty000185

Melanie

1197

Coty000185

Lorene

1198

Coty000186

Dorothy

1200

Coty000188

Rose

1201

Coty000189

Colleen

1201

Coty000189

Triscia

1202

Coty000190

Susan

1202

Coty000190

Mary Jane

1203

Coty000191

Name Illegible

1204

Coty000192

Colleen

1208

Coty000196

Michelly

1208

Coty000196

Deb

5

1209

Coty000197

Stephanie

1210

Coty000198

Darcy

1212

Coty000200

Nazarene

1212

Coty000200

Joy

1212

Coty000200

Stacy

B. Consumer Complaints Referencing Unrelated Injuries
The injury sustained by May was a tear to her labia. Thus, the Court finds any complaint
that merely references bruising, irritated skin, rashes, swelling, or blistering without reference to
the skin being torn, lacerated, or ripped is not substantially similar to the injury in this case.
Further, complaints that the wax was stuck on the vaginal area are not substantially similar to
May’s injury.

The Court will exclude the following consumer complaints as not being

substantially similar:
DN 116-1, PageID#

Bates ID

Complainant

Description

1190

Unavailable

Heather

Irritated vaginal area

1192

Unavailable

Stefanie

Irritated bikini area

1192

Unavailable

Jo Ann

Bruising on the bikini line

1218

Coty002

Krista

Bruised pelvic area

6

1219

Coty003

Melissa

Bruised bikini area

1220

Coty004

Tracie

Irritation and rash on bikini line

1221

Coty005

Sandra

Irritation to bikini area

1231

Coty015

Marlene

Red and purple marks on bikini area

1232

Coty016

Krista

Bruising and blistering on bikini area

1233

Coty017

Megan

Rash on bikini area

1239

Coty023

Laura

Bruising and oozing skin on bikini area

1252

Coty036

Liz

Inflammation and pain to bikini area

1255

Coty039

Nita

Bruising to bikini area

1255

Coty039

Megan

Wax stuck on vagina

1261

Coty045

Mayura

Bruising and irritation to bikini line

1262

Coty046

Kathryn

Bruising to bikini line

1262

Coty046

Lyn

Black and purple welts to bikini area

1268

Coty052

Kathleen

Red mark on bikini line

1274

Coty058

Evan2

Burns on genitalia

Coty objects to this complaint on that grounds that it concerns an unrelated injury: “burns of what appears to be
male genitalia, and thus not vaginal area…” DN 122 at 1. Upon review of the complaint, the Court determines that
2

7

1276

Coty060

Marta

Irritation to bikini line

1278

Coty062

Sherry

Bruising to bikini area

1279

Coty063

Kristie

Red and irritated bikini area

1285

Coty069

Patty

Bruising to bikini area

1293

Coty077

Maury

Burning, peeling, and swollen vagina

1298

Coty082

Maureen

Bruising to bikini area

1299

Coty083

Michal

Marks on bikini area

1304

Coty088

Heather

Bruising to bikini line

1305

Coty089

Stefanie

Irritated bikini area

1306

Coty090

Jo Ann

Bruising to bikini line

1310

Coty094

Heather

Irritated vaginal area

C. Consumer Complaints with Insufficient Amount of Information
The Court finds that the following consumer complaints, despite referencing bleeding,
scarring, or peeling of skin, lack sufficient information to determine substantial similarity.
Accordingly, Plaintiffs have failed to satisfy their burden of proving substantial similarity. See

the complaint involved an injury to female genitalia: “I have a patient in the ER with first degree burns on her inner
thigh and outside genitalia.” DN 116-1, PageID# 1274 (emphasis added). Nevertheless, the complaint will be
excluded as referencing an unrelated injury.

8

Rye, 889 F.2d at 102. The Court will exclude the following consumer complaints as not being
substantially similar:
DN 116-1,
PageID#

Bates ID

Complainant Description

1125–28

Coty000225 B.G.

“I went to use this wax on my bikini line
and I am now bleeding.” DN 116-1,
PageID# 1125. “On my bikini area, after
the wax strip was removed, blood
immediately rose to the surface of my
skin and a bunch of red spots appeared.”
Id. at 1128.

1143–44

Coty000230 M.L.

“Consumer used the product and she says
the product has caused scarring on her
arms, and bikini area.” Id. at 1143.3

1145–47

Coty000255 K.N.

“I have permanent scarring on my skin as
a result of applying your product…” Id.
at 1145.

1193

Unavailable

Talia

“I have some areas on my bikini area
where the top layer of skin has been
removed.” Id. at 1193.

1228

Coty012

Rachel

“As I went to take off the strip on one
arm it did not take the hair off but it took
my skin off instead. I also tried it on my
bikini line area thinking it would grab
longer hair, and then also on one strip of
my leg, all with the same results. The
next morning the places I tried to wax all
developed into a major rash…” Id. at
1228.

1234

Coty018

Tracy

“She applied the wax to her bikini area
and when she removed the product, some
of her skin was removed.” Id. at 1234.

The Court notes that Defendants did not object to this complaint in Defendants’ Response to Plaintiffs’ proffer.
The Court nevertheless finds that this complaint contains insufficient information to determine substantial similarity
and will exclude it accordingly.
3

9

1241

Coty025

Marina

“The wax peeled off layers of my skin all
down my thighs, resulting in red welts
that are not subsiding and large, dark
bruises along my bikini line.” Id. at
1241.

1245

Coty029

Marie

“Consumer used the product on her bikini
area and it removed skin instead of
hair…” Id. at 1245.

1274

Coty058

Bonnie

“I used Sally Hansen All-Over Body Wax
Kit on my bikini area and it caused
extreme skin excoriation with bleeding
and redness. It took 5 days of applying
Neosporin and dressings to alleviate the
excoriation and pain.” Id. at 1274

1274

Coty058

Spring

“I used the wax on my pubic area and two
days after using it my skin is bruised.
The area looks pink and purple. I have
scab like sores.” Id. at 1274.

1277

Coty061

Krystle

“I followed your instructions to the t, and
trimmed the bikini area 2 days prior…,
and not only did it not get all the hair, but
I am completely BRUISED and even
bleeding in some areas.” Id. at 1277
(emphasis in original).

1286

Coty070

Insanity1972

“Tried in bikini area and it caused painful
blood blisters and terrible bruising.” Id.
at 1286.

1288

Coty072

Paula

“Now my bikini line is black, red, purple,
all colors, with blisters and blood…” Id.
at 1288.

1290

Coty074

Kamie

“…I noticed that my bikini area and the
back of my knees were blistered and
bleeding.” Id. at 1290.

1298

Coty082

Joanne

“I used this product about two months
ago; while removing the wax it caused
bleeding on legs in bikini area.”

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D. Substantially Similar Consumer Complaints
The Court finds that the following consumer complaints are substantially similar to the injury
in this case because the complaints 1) reference torn, ripped, or lacerated skin in the bikini, vaginal,
or genital area and 2) are from the use of the Sally Hansen Extra Strength All-Over Body Wax Kit.
Accordingly, the Court will allow Plaintiffs to offer the following consumer complaints at trial:
DN 116-1, PageID#

Bates ID

Complainant Description

1129–32

Coty000251

C.G.

Ripped skin; one inch cut on labia

1133–36

Coty000247

A.S.

Skin tear on bikini area

1137–42

Coty000232

B.H.

Skin removal from clitoris; received
fourteen stiches

1148–50

Coty000265

R.W.

Ripped skin on bikini area; bleeding

1151–52

Coty000268

K.M

Cut on bikini area; bleeding

1153–57

Coty000258

S.D.

Torn labia

1158–61

Unavailable

May Miller Tearing of the vaginal area; sixteen
(Plaintiff)
stiches

1162–64

Coty000270

C.N.

Ripped skin on bikini area

1165–67

Coty000222

A.M.

Four stitches on labia

1222

Coty006

Patricia

Torn skin on bikini area

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E. Duplicates
Coty objects to a number of the proffered consumer complaints on the grounds that the
complaints are duplicate complaints (complaints by the same individual and involving the same
incident). Where the original was not excluded supra, the Court agrees with Coty that the duplicate
should be excluded to avoid jury confusion. Where the original was excluded supra, the duplicate
will likewise be excluded. These complaints are addressed as follows:
DN 116-1, PageID#

Bates ID

Complainant Ruling

1220

Coty 004

Aarin

Excluded as duplicate of DN 116-1, at
1165–67.

1225

Coty009

Keiko

Excluded as duplicate of DN 116-1, at
1151–52.

1226

Coty010

Marian

Duplicate of DN 116-1, at 1143–44.
The original was excluded under
subsection C for not being substantially
similar. The duplicate will likewise be
excluded.

1232

Coty016

Krista

Coty objects on the grounds that this
complaint is a duplicate of DN 116-1,
at 1218.
The Court, however,
determines that these complaints are
not the same because the incidents are
described differently, and the consumer
locations are different. Regardless, the
Court excluded this “duplicate”
complaint in subsection B for not being
substantially similar.

1238

Coty022

Brittany

Excluded as duplicate of DN 116-1, at
1137–42.

1260

Coty044

Amanda

Excluded as duplicate of DN 116-1, at
1133–36.

12

1264

Rina

Excluded as duplicate of DN 116-1, at
1148–50.

1281

Coty065

Chao

Excluded as duplicate of DN 116-1, at
1129–32.

1291

Coty075

May Miller
(Plaintiff)

Excluded as duplicate DN 116-1, at
1158–61.

1299

Coty083

Sara

Excluded as duplicate of DN 116-1, at
1153–57.

1304

Coty088

Heather

Coty objects on the grounds that this
complaint is a duplicate of DN 116-1,
at 1190.
The Court, however,
determines that these complaints are
not the same because the incidents are
described differently, and were
submitted
on
different
dates.
Regardless, the Court excluded this
“duplicate” complaint in subsection B
for not being substantially similar.

1305–06

Coty089

Jo Ann

Duplicate of DN 116-1, at 1192. The
original was excluded under subsection
B for not being substantially similar.
The duplicate will likewise be
excluded.

1307

IV.

Coty048

Coty091

Talia

Duplicate of DN 116-1, at 1193. The
original was excluded under subsection
B for not being substantially similar.
The duplicate will likewise be
excluded.

Order
On December 12, 2018, the Court granted in part and denied in part Defendants’ motion in

limine to exclude consumer complaints. DN 98. The Court ordered Plaintiffs to proffer the
consumer complaints Plaintiffs wished to introduce at trial. Id. For the reasons set forth above,
and the Court being otherwise sufficiently advised, the Court further ORDERS:

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1) Subject to a ruling on foundation at trial, the Plaintiffs may offer the following complaints:
DN 116-1, PageID#

Bates ID

Complainant Description

1129–32

Coty000251

C.G.

Ripped skin; one inch cut on labia

1133–36

Coty000247

A.S.

Skin tear on bikini area

1137–42

Coty000232

B.H.

Skin removal from clitoris; received
fourteen stiches

1148–50

Coty000265

R.W.

Ripped skin on bikini area; bleeding

1151–52

Coty000268

K.M

Cut on bikini area; bleeding

1153–57

Coty000258

S.D.

Torn labia

1158–61

Unavailable

May Miller
(Plaintiff)

Tearing of the vaginal area; sixteen
stiches

1162–64

Coty000270

C.N.

Ripped skin on bikini area

1165–67

Coty000222

A.M.

Four stitches on labia

1222

Coty006

Patricia

Torn skin on bikini area

2) The remaining consumer complaints are excluded.
IT IS SO ORDERED.

February 20, 2019

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