Miller v. Coty, Inc. et al

Filing 97

MEMORANDUM AND OPINION by Senior Judge Charles R. Simpson, III on 12/12/2018; re 55 MOTION in Limine and 56 Motion. An order will be entered in accordance with this opinion. Parties shall comply as set forth in Order. cc: Counsel (MEJ)

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
This matter is before the Court on motion in limine of the Defendants Coty, Inc. and Coty,
US, LLC (collectively, “Coty”) to exclude evidence concerning prior consumer complaints. (DN
55). Plaintiffs May Miller and Timothy Miller (collectively, “Plaintiffs”) have filed an omnibus
motion in limine (DN 56).1 For the reasons set forth below, Coty’s motion will be granted in part
and denied in part. The Court likewise will deny Plaintiffs’ sixteenth motion in limine to exclude
evidence of the number of products sold by Coty. Plaintiffs’ remaining motions in limine will be
addressed separately.
I. Evidence Concerning Consumer Complaints
Coty seeks to exclude evidence concerning “consumer complaints generated by Coty with
regard to the Sally Hansen Extra Strength All-Over Body Wax Kit and the Sally Hansen Lavender
Wax.” (DN 55, at 1).

Coty argues that evidence of these consumer complaints is irrelevant

because Plaintiffs “have failed their burden of establishing that those complaints are substantially
similar to the underlying facts in this case.” (Id. at 5).

Defendants’ Motion in Limine (DN 55) and Plaintiffs’ Motions in Limine (DN 56) were previously
administratively remanded. (DN 70). A trial date having been set, these motions are now ripe for review.
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Plaintiffs concede “any complaint that does not reference an injury or any phrase or word
that can be defined as referencing ones [sic] bikini, vaginal, pubic or genital area is irrelevant and
inadmissible.” (DN 61, at 1).

However, Plaintiffs assert that certain prior complaints are

admissible “demonstrate Defendants were on notice of consumers using their product in their
bikini, vaginal, pubic or genital area.” (DN 61, at 4).
The Sixth Circuit provides the applicable standard:
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” (“Product”). (DN 68, at 1). Specifically, the injury occurred while
Timothy Miller was waxing May’s pubic area. (Id. at 2).
In Plaintiffs’ response, Plaintiffs concede “any complaint that does not reference an injury
or any phrase or word that can be defined as referencing ones [sic] bikini, vaginal, pubic or genital
area is irrelevant and inadmissible.” (DN 61, at 1) (emphasis added). Plaintiffs seem to suggest
that “any complaint referencing torn, ripped, or lacerated skin, as well as bleeding, scabs or
stitches” is “substantially similar” to the incident at issue because plaintiff “suffered a severe
laceration from the use of Defendants [sic] product…” (Id. at 3) (emphasis added). Plaintiffs claim
there are 268 complaints which are associated with “ripped, torn or lacerated skin, as well as
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bleeding, scabs and stiches.” (Id. at 3). Of these 268 complaints, 120 complaints are associated
with the removal of the product “from the consumers’ bikini, central and vaginal areas, including
the vulva, labia and labia minora.” (Id. at 3-4). To the extent Plaintiffs deem admissible and
relevant prior complaints referencing torn, ripped, or lacerated skin without regard to body part,
we disagree. An injury sustained while waxing a different body part – a leg or eyebrow for instance
– would not have “occurred under similar circumstances” as the incident here.

Consumer

complaints involving an injury with no reference to the consumer’s bikini, vaginal, pubic, or
genital area will be excluded because they are not substantially similar and would likely result in
confusion of the jury as to how that evidence should be used.
Similarly, consumer complaints with regard to the Sally Hansen Lavender Wax are not
“substantially similar” to the incident in this case because those complaints involve a different
product which has its own labeling and warnings. Consumer complaints regarding the Sally
Hansen Lavender Wax Kit will be excluded because they are not substantially similar and would
likely result in confusion of the jury as to how that evidence should be used.
Without more context, however, the Court cannot rule on the remaining prior complaints.
Accordingly, Plaintiff may proffer prior complaints from (1) the Sally Hansen Extra Strength AllOver Box 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.
II. Evidence of the Number of Products Sold by Coty
Plaintiffs ask the Court to exclude any reference “to the number of products sold by the
Defendants.” (DN 56, at 6). In support of this motion, Plaintiffs rely upon Rules 401, 402, and
403 of the Federal Rules of Evidence.

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In response, Coty responds that such evidence “is relevant and probative because of the
minute number of alleged similar complaints, when compared to the total number of products sold,
can arguably be shown to be misuse or failure to follow instructions or warnings rather than
evidence of a defective or inherently dangerous product.” (DN 58, at 3).
To rebut evidence of similar consumer complaints, defendants should be allowed to put on
evidence of the total number of products sold during the same time as the similar consumer
complaints. See Croskey v. BMW of N. Am., Inc., 532 F.3d 511, 518 (6th Cir. 2008) (citing
McCormick On Evidence § 200 (where a plaintiff has presented evidence of prior accidents to the
jury, “it would seem perverse to tell a jury that one or two persons beside the plaintiff tripped on
defendant’s stairwell while withholding from them the further information that another thousand
persons descended the same stairs without incident.”); 2 Wigmore, Evidence § 444 (Chadbourn
rev. 1979) (leaving the decision whether this type of evidence is admissible to the trial judge)).
Although Plaintiffs’ point that “every consumer likely did not purchase the subject product
exclusively for bikini waxing” (DN 66, at 2) is well taken, Plaintiffs may emphasize this weakness
through cross-examination. Accordingly, Plaintiffs’ motion to exclude evidence of total number
of products sold by Coty will be denied. Defendants will be permitted to put on evidence of the
total number of Sally Hansen Extra Strength All-Over Box Wax Kits sold during the same time as
the similar consumer complaints.
CONCLUSION
For the foregoing reasons, the Court will order the following:
1. Defendants’ motion in limine to exclude consumer complaints (DN 55) will be
GRANTED in part and DENIED in part;

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2. The Court will GRANT Defendants’ motion to the extent it seeks to exclude 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
3. The Court will DENY Defendants’ motion with regard to the remaining consumer
complaints. If Plaintiffs wish to introduce evidence of consumer complaints at trial,
Plaintiffs SHALL proffer at least thirty (30) days prior to trial prior complaints from
(1) the Sally Hansen Extra Strength All-Over Box 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. Defendants will have seven (7) days to respond,
following which the Court will evaluate whether the prior incidents are substantially
similar enough to warrant admission at trial.
4. Plaintiffs’ sixteenth motion in limine to exclude evidence of the number of total
products sold by Defendants will be DENIED. To rebut evidence of similar consumer
complaints, Defendants are permitted to put on evidence of the total number of Sally
Hansen Extra Strength All-Over Box Wax Kits sold during the same time as the similar
consumer complaints.
An order will be entered in accordance with this opinion.

December 12, 2018

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