Brown-High v. L'Oreal S.A. et al

Filing 52

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 11/29/2017. (tds, Deputy Clerk)

"'~T

IN THE UNITED STATES DISTRICT COURT ~
,
FOR THE DISTRICT OF MARYLAND'
SOlliltem Didsio/l

LINDA M. BROWN-HIGH,

lOlll V2Q P 3:31
C' ..
,,

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Plaintiff,

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Case No.: G.IH-17-276

v.

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L'OREAL USA, INC., et a/.,

*
Defendants.

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MEMORANDUM OPINION
This suit arises from injuries that PlaintifT Linda M. Brown-lligh
using a product manul:1etured
Soli Sheen Products.

by Defendants

Inc. (the "Manufacturer

Legend-No-Mix-No-Lye-Relaxer

1.:0real

an Optimum

Salon Haire:u"C i\mla-

ECF No. 23 ~ 6. PlaintilT purchased

Amla Rclaxer from a Family Dollar Store in Mount Rainier. Maryland.
Dclendants

Inc .. and Dollar Tree,

For her injuries. Plainli ITseeks $1 million in compensatory

damages and $1 million in punitive damages
million in compensatory

damages

against the Manufacturer

against the Retail Delendants.

Defendants,

and $1

Presently pending before the

Motion to Dismiss. ECF No. 30. which has been joined

Court is the Manufacturer

Defendants'

by the Retail Defendants.

ECF No. 35. The Court held a motions hearing on Novemher

ECF No. 51. For the fol lowing reasons. Defendants'
denied in part.

the

and has also named as

Family Dollar Stores. Inc .. Family Dollar Stores of Maryland.

Inc. (the "Retail Defendants").

from

USA. Inc .. Soli Sheen - Carson. LLC'. and

Defendants''):

("Amla Relaxer").

allegedly suffered

8. 2017.

Motion to Dismiss is granted in part and

I.

BACKGROUND!
In 2013. the Manufacturer

Legend:'

Defendants

which they claimed were "enriched

powerful antioxidant

rich in vitamins:'

of products. A relaxer is a chemical
chemically

released a line of hair products called the "Amla
with purilied Amla extract."

hair product used by individuals

'i 61.

with curly hair to

The Amla Relaxer was packaged

step product. and each box of Amla Relaxer included a Scalp Protector
cream. a shampoo.

a conditioner.

15. "a

id. ~ 16. The Amla Relaxer was included in this new line

their hair. Id.

"relax" or straighten

23'i

Eel' No.

Id.

and an oil moisturizer.

'i I R. The

as a live-

Pre-Treatment.
Manufacturer

a rclaxing
Defendants

marketed and sold the Amla Legend products directly to consumers

through its own website. and

also through major retail locations.

Id. ~ 17. On the Amla

Relaxer's

packaging.

the Manuflleturer

that the product contained

'119.

Applieation:'Id.
box. including.
consumers

the Retail Defendants.

Defendants

The packaging

made a number of representations.

including

Scalp & Skin:' and "Ensures a No-Mistake

"NO-I. YE:' "Protects

also contained

but not limited to. instructing

a number of warnings on the side of the

consumers

that the product contained

"alkali:'

that

should wear gloves while using the product. that the product could cause blindness.

and that the consumer
Typically.

should keep the product ofT of skin areas. Id. ~ 34.

lye-based

burn. and arc generally

relaxers contain sodium hydroxide."

and are marketed

applied without the assistance

to consumers

of a beauty professional.

'123.

Id.

applied by beauty professionals.

contain sodium hydroxide.

1

including

carry a high risk of a chemical
"No-lye"

as less dangerous

relaxcrs do not
products that can be

Id. ~ 26. While the Amla Relaxer was

Unless otherwise stated. the background facts are taken from Plaintiffs

Amended Complaint.

Eer

No. 23. and are

presumed to be true.
2

Defendants argue that "lye"

C31l Illeall

only sodium hydroxide.

5:l!t!

ECF No. 30-1

at

4. The COLIrttakes judicial

notice that Merriam-Webster defines "Iye" as being"a strong alkaline solution (as of sodium hydroxide or
potassium hydroxide)" Of"n solid caustic (such as sodiulll hydroxide):' "Definition of Lye." Mcrriam-\Vcbstcr.
hups:Ii\\ \\\\ .l1lcrriam-wi:bsta .('omidictionarv/hc
(last visited Nov. 14. 2017).

2

marketed as a "NO-L YE" relaxer. Plaintiff alleges that (I) the relaxing cream contained
hydroxide:'

a dangerous

dcstruction:'
cream's

that causes severe irritation.

id. ~ 25: and. (2) onlinc retailers listed "sodium
id.

ingredients.

promised

and harsh chemical

'1 273

burns. blisters. and hair
as one of the relaxing

Plainti ff 1\J11heralleges that despite thc "No-Mistake

by the Manul~lcturer

Delendants.

scalp and skin burns. skin irritation.
Relaxer. ECF No. 23

hydroxidc"

numerous

hair loss/damage.

consumers

have complained

Application"
of suflering

rashcs. and blistcrs alier using the Amla

'Ii 33.

On August 2. 2013. Plaintiff. who "was seeking a sale no-lye hair relaxer:'

Id

Amla Relaxer from a Family Dollar Store in Mount Rainier. Maryland.
"had experience

"Iithium

using other hair relaxers in the past:' purchased

'i 37.

purchased

the

Plaintiff. who

the Amla Relaxer thinking that

"it was safe. was a no-lye relaxer. and that it would not cause severe skin burns and hair
destruction:'

Jd. ~~ 37-38. On August 4. 2013. PlaintifCs

the Amla Relaxer to her hair. Jd. ~ 39. Plaintiffs
of Plaintiffs

hair. and achieved

an eflective

to Plaintiffs

daughter

Pre-Treatment"'

applying

the Relaxer Creme. Plainti ITexperienced

with the Neutralizing

ineluding

"chemical

hair. lollowed

Maryland.

by the "No-Mix

Relaxer Creme:'

Jd. Alier

a severe burning sensation on her head and

and water: this did not ease the "burning

PlaintilTalieges

pain:' Jd. As a result of

that she sustained "serious and permanent

burns to her lacc and sealp and signilieant

Plaintiff initiated this suit against Defendants
County.

lirst tested the Amla Relaxer on part

rushed her to their sink and rinsed the Relaxer Creme from her hair

Shampoo

using the Amla Relaxer.

applying

and sate result. Jd. She then applied the "Scalp

Protector

scalp. Jd. Plainti fC s daughter

daughter assisted PlaintitTin

hair loss/damage:'

injuries"

Id

in the Circuit Court Itlr Prince George's

on August 2. 2016. ECF No. I. On January 31. 2017. Defendants

removcd

.~Notably. 011 the copy orlhe packaging provided by Defendants. "Sodium Hydroxide" is listed as the last ingredient
in the producfs shampoo. Sf!t! ECF No. 30-2 at 4. (Pin cites to documents filed on the COllrt"S electronic tiling
system (CM/ECF)
refer to the page numbers generated by that system.)

3

the suit to this Court. alleging that this Court has original diversity jurisdiction

1332./d

On March 17.2017.

No. 23. In her Amended
Defendants.

Plaintiff tiled an Amended

Complaint.

under the Maryland

I. II. VIII): (2) products liahility (strict liahility and negligence)

Manufacturer

Consumer

Defendants

ECr

(I) breach of warranty (implied and

III. IV. IX. X): and. (3) li'aud-based claims (li'aud and unfair/deceptive

(Counts

filed a Motion to Dismiss the Amended

Complaint.

claims

trade practices

Act) (Counts V. VI).4 On April 14.2017.

Protection

which was joined by the Retail Defendants.

the

ECF No. 30.

ECF No. 35.

STANDARD OF REVIEW
To survive a Rule 12(b)(6) motion to dismiss. "a' complaint

factual matter. accepted

(2007)). "A claim has facial plausibility
court to draw the reasonable

obligation
conclusions.

statements.

and a formulaic

Furthermore.

is liable for the misconduct

recitation

by

to reliel' requires more than labels and

of a cause of action's elements
that the defendant

will not do,")).

committed

Iraud. this claim

pleading standard under Federal Rule of Civil Procedure

9(h) requires that a plaintiff asserting

allcged,"

It!. (citing 7'\1'()/l1bly. 550 U.S. at 555 ("a plaintilTs

of his 'entitle[mentj

where a plaintifTalleges

must satisfy the heightened

7'lI'01l1hl)'. 550 U.S. 544. 570

recitals of the elements of a cause of action. supportcd

do not suffice,"

to provide the 'grounds'

1'.

when the plaintiff pleads factual content that allows the

inference that the defendant

Iqhal. 556 U.S. at 678. "Threadbare
mere conclusory

must contain sufficient

as true. to 'state a claim to relief that is plausible on its lilce:" Asherofi

\'. Iqbal. 556 U.S. 662. 678 (2009) (citing Bell A/lal1/ie Corp.

.J

against Defendants.

Plaintiff alleged a number of causes of actions against

which the Court divides into three categories:

express) claims (Counts

II.

Complaint

under 28 U.S.c. ~

a claim of fraud must allege "with particularity

Count VII is a claim for punitive damages. which is discussed belo\\'. iJ!/i"o.

fraud-based claims.

4

11.

9(h). Rule
the

5. following the discussion of the

circumstances constituting traud:' Spaulding \'. lVelis Fargo Bank. NA .. 714 F.3d 769.

nl

(4th

Cir. 2013). Rule 9(b) requires a plaintiff to plead ..the time. place. and contents of the lalse
representations. as well as the identity of the person making the misrepresentation and what he
obtained thcrcby:' Spaulding. 714 F.3d at 781.
The purpose ofRulc 12(b)(6) "is to test the suflicieney ofa complaint and not to resoh'e
contests surrounding the facts. the merits of a claim. or the applicability of de lenses:' Presley".
City o{Charlolles\'ilie.

464 F,3d 480. 483 (4th Cir. 2006) (citation and internal quotation marks

omitted), Whcn deciding a motion to dismiss under Rule 12(b)(6). a court ""must accept as true
all of the factual allegations contained in the complaint:' and must ""drawall reasonable
inferences [from those facts] in favor of the plaintiff." Eo/. duPolll de Nell/ours & Co. \'. Kolon
Indus .. Inc.. 637 F.3d 435. 440 (4th Cir. 2011) (citations and internal quotation marks omitted).
The COlll1need not. however. accept unsupported legal allegations. see Rel'ene \'. Charles
Coullly COII/II/'r.\'. 82 F.2d 870, 873 (4th Cir. 1989). legal conclusions couched as f:lctual
8
allegations. Papasan \'. Allain. 478 U.S. 265. 286 (1986). or conclusory t:lCtual allcgations
devoid of any reference to actual events. Uniled Black Firefigl7lers l!fNlI1jiJlk \'. }firs!. 604 F.2d
844.847 (4th Cir. 1979).
III.

DISCUSSION

In their Motion to Dismiss. Defendants move to dismiss each of Plainti fr s causes of
action as a matter of law. for reasons that the Court addresses in turn bclow.
A. Breach of Warnll1ty Claims (Counts I, II, VIII)
In her Amended Complaint. Plaintiff alleges that the Manuf:lcturer Defendants breached
express warranties. lOCI'No. 23 at 12 (Count I), and implied warranties. ill. at 14 (Count ll). and
that the Retail Defendants brcaehed implied warranties. ill. at 22 (Count Vlll). Regarding the

5

implied warranties. Plaintiff claims that all Defendants sold a produet that was not "of
merehantable quality and reasonably tit and safe fill' its intended and ordinary use:' lei.

'i~ 94.
50.

Regarding the express warranties. PlaintilT claims that the Manufaeturer Defendants made a
number of express warranties (e.g" that the product "protects scalp & skin") that convinced
Plaintiff to purchasc the product but were ultimately untrue. lei. ~ 42.
[n their Motion to Dismiss. Defendants give several reasons why these breach of
warranty claims should be dismissed. First. Defendants argue that PlaintilT has not sunieiently
pleaded that she provided Defendants with statutorily required notice of her breach of warranty
claims pursuant to Md. Code. Com. Law ~ 2-607. ECF No. 30-1 at 7. Second. Defendants argue
that each of the representations cited by Plaintiff either consists of "putTery:' "cannot be
interpreted as a verifiable statement of objective fact:' or "is objeetivcly vcritied:' Id. at 9.
Finally. Defendants argue that Plaintitrs

implied warranty claims are insuniciently pleaded. and

do not allege ..that a safer reasonable alternative design ... would have prevented the risk of
harm:' lei. at 1I.
Regarding Defendants' tirst point. Plaintiff alleges that she has complied with the
provisions of ~ 2-607 and provided pre-suit notice to the Manutacturer Defendants. ECF No. 38
at 9 n.II.5 She also argues that she needs only to "allege that she generally complied" with ~ 2607 under Fed. R. Civ. P. 9(c). Regarding Defendants' second point. Plaintiff argues that certain
representations on the Amla Relaxer packaging ("no-lye:' "protects scalp and skin:' "Ensures a
No-Mistake Application'") were statements of fact and were untrue. ECF No. 38 at 10-13.
Finally. regarding Defendants' third point. PlaintitTargues that she has pleaded that the Amla

5

In her Opposition to the Motion. Plaintiff describes that on August 5. 2013. the day after she used the Amla

Rela.'\cr. she called the Retail Defendants' toll-free number that was listed

011

the Amla Relaxer"s packaging to

report her claim. and subsequently sent letters to the Retail Defendants through her mtorney. ECF No. 38 at 9 11.11.
The Court will grant leave to Plaintirrto alllend the Complaint to include this allegation.

6

Relaxer was not merchantable. as it contained an "overly dangerous chemical composition that
caused severe skin burning and hair 10ss/damage:'1d

at 14. I'laintitTpoints out that "Maryland .

. . does not require PlaintitT to establish a safer reasonable alternative design to correct
Defendants' hazardous design:' Idat 15 (citing Ilallida)' \'. SII'IIIII. Ruger & Co .. 792 A. 2d 1145.
1155 (Md. 2002».
i. Notice Requirement

of ~ 2-607

Md. Code. Com. Law. ~ 2-607(3 lea) provides that a buyer "must within a reasonable time
alier [slhe discovers or should have discovered any breach notify the seller of breach or be
barred from any remedy:' In this context. Maryland courts have interpreted the word "seller"' to
exclude an indirect seller. like a manufacturer. and to mean only "the immediate scllcr" of the
product. Fireslol1e Tire & Rubber Co. \'. C(III/WI1. 452 A.2d 192. 198 (Md. App. 1982). a[fd. 456
A.2d 930 (Md. 1983). The purpose of this rule is to "inform the seller of a defcet in the
transaction. enabling him to correct the defect if possible and to minimize any damages:'
Frericks

". Gell. Molors Corp .. 363 A.2d 460. 465 (Md. 1976). as well as to "open[] the way ft)r

normal settlement through negotiation:' Md. Code Ann .. Com. Law
Doll

I'.

* 2-607. cmt. 4.

See also

Ford AIolor Co .. 814 F. Supp. 2d 526. 552 (D. Md. 2(11) ("One ofthc primary reasons

for the notitication requirement is that it provides the sellcr and the manufacturer an opportunity
to correct their original performance and avoid costly litigation."). "It is clear that in an action by
a buyer against his seller 1(11' a breach of warranty, the buyer must notify the seller of the alleged
breach:' Frericks. 363 A.2d at 463. [t is also apparent that wherc no notice was given to an
immediate seller or an indirect seller/manufacturer.

* 2-607(3)(a)

also bars a plaintilrs claims

for breach of warranty against the indirect seller/manunlcturer. See. e.g., Fireslol1e Tire &
Rubber Co .. 452 A.2d at 198.

7

What is not clear under Maryland

law is how

*

2-607(3)(a)

should be applied where. as

in this case. the plaintilT has provided pre-suit notice to the manufacturer.
Defendants.

has not provided pre-suit notice to the immediatc

brings claims for breach of warranty against all Defendants.
[immcdiate]

seller of breach" and so is seemingly

Defendants
However.

were not on notice. Plaintiffis
docs "any remedy"

the Manufacturer

seller. the Retail Delendants.

yet

Here. Plaintiff did not "noti fy the

"barred fi-OITI ny remedy'"
a

As the Retail

clearly "barred Irom any remedy" against them.

extend to remedies sought against the Manufacturer

Defendants.

who l1"ere on notice? Neither the parties nor the Court have identified any case in which a
Maryland

court has opined on this specific question.

Defendants

rely heavily on this Court's

in Dollv. Ford Motor Co.. 814 F. Supp. 2d 526. 542 (D. Md. 2011) (Williams . .I.).

decision

There. plaintiffs

who had purchased

well as the manufacturers

of the vehicles.!d.

generally

that they had "provided

problems

they experienced:'

manufacturer

sutlicient

defective
at 533-34.

vehicles sued their immediate
Although

component

of implied warranty

regarding thc

that was impaired and the nature of the
that "neither the Iseller] nor Ithe

would have known that the PlaintifT was claiming
Maryland

plaintiffs had pleaded

and timely notice to [the manufilcturer]

it!. at 542. As such. the court concluded

!d. In summarizing

sellers as

it!. at 541. the court found that they had not informed the scller or

of ..the particular

nonconformity:'
manufacturer]

allegcdly

law. the court reasoned

against a manufacturer.

a breach of implied warranty'"

that "if a plainti ff wishes to claim a breach

the plaintiff must notify their immediate

seller of the

!d. at 542.

breach'"

In their filings and at the motions hearing. Defendants
reasoning

and find that Plaintitrs

breach of warranty

urged the Court to rely on /)o/I"s

failure to provide notice to the Retail Defendants

claims against all Defendants.

bars her

See. e.g. ECF No. 45 at 10. At the same

hearing. however. counsel for Defendants conceded that it "doesn't seem to make sense" that a
plaintitTwould be barred from bringing a breach of warranty claim against a manufacturer to
whom plaintiff had provided notice. The Court agrees. The Court reads Doll as being limited to
the facts bel,)re that Court: where the manufacturer had not been provided with surticient notice
regarding the breach of warranty claims. In determining how to apply ~ 2-607 to this unique
filctual situation. the Court looks to the rationale underlying ~ 2-607 as previously laid out by
Maryland's courts and legislature. Where. as in this case. the manulilcturer has been provided
with sufficient pre-suit notice. the underlying policy of ~ 2-607 has bccn satisfied: the
manufacturer was "infol'ln[cdl ... ofa defect in the transaction. enabling him to correct the
defect ifpossible and to minimizc any damages:' Frericks. 363 A.2d at 465. and was free to seek
"normal settlement through negotiation:' Md. Code Ann .. Com. Law ~ 2-607. cm!. 4. The samc
notice was not provided to the Retail Defendants. however. As such. the Cour! finds that
Plaintiffs

breach of warranty claims against the Retail Defendants arc barred for failure to give

notice under ~ 2-607. but that her breach of warranty claims against the Manufacturer
Defendants are not barred.
ii. Express and Implied Breaches of 'Varran!)'
In their Motion to Dismiss. Detendants contend that Plaintiff has not pleaded a plausible
claim for breach of an express or implied warranty. See ECF No. 30-1 at 8. 10. "To state a claim
for breach of express warranty under Maryland law. a plainti ff must allege I) a warranty existed:
2) the product did not conform to the warranty: and 3) the breach proximatcly caused the injury
or damage:' Rohin.l'on \'. Alii. lJonda Motor Co .. 551 F.3d 218. 223 (4th Cir. 2009) (internal
quotation omitted). To state a claim for breach of the implied warranty of merchantability. a

9

plaintiff must allege that the goods purchased were not "lit for the ordinary purpose for which
such goods are used:' Rohinson. 551 F.3d at 225 (quoting Md, Code. Com. Law.

* 2-314(2).

Regarding Plaintiffs breach of warranty claims against the Manufacturer Defendants.
PlaintilThas sufficiently pleaded allegations that. assumed to be true. constitute plausible causes
of action of breaeh of express and implied warranties. PlaintilT has alleged that the Amla Relaxer
promised a "NO-LYE" produet. which would "Protect[] Scalp & Skin" through an ensured "NoMistake Application:'

ECF No. 23 ~ 19. but that. in reality. the Amla Relaxer contained a Iye-

like chemical that caused severe hair and scalp injuries. !d '139. Taken as true. these lilcts
eonstitute a claim for breach of express warranty. Plaintiff also has alleged that she used the
product in a foreseeable manner. following the instructions. and that the product still caused
serious injury. Thus. PlaintilThas alleged that the Amla Relaxer was not "lit lor the ordinary
purpose for which such goods are used:' and has pleaded a claim for breach of implied warranty.
PlaintifTs breach of warranty claims against the Manufacturer Defendants will not be dismissed.
B. Product Liability Claims (Counts III, IV, IX, X)
Product liability claims can be brought under a strict liability theory. and/or a negligence
theory. "The negligence theory of product liability lixuses on the conduct of the defendant.
while the strict liability theory of products liability focuses 'primarily on the prodllct (and
whether or not it can be deemed detective) .... Parker \'. Allentmrn. Inc.. 891 F. Supp. 2d 773.
780 (D. Md, 2012) (quoting Paul Mark Sandler & James K, Archibald. Pleading Callses 0(
Action in MlIIJ'hmd 255.265 (4th ed. 2008) (emphasis in original)), Under both theories of
recovery. "a plainti 1'1'
must show .three product litigation basics-delCct.

attribution of detect to

seller [or manutilcturer]. and a causal relationship between the defect and the injury .... I.aing \'.

10

Volks\I'agen o/AII1.. Inc.. 949 1\.2d 26. 39 (Md. Ct. Spec. App. 2008) (citing Ford M%r Co. \'.
Gell. Accide/1/ Ins. Co .. 779 A.2d 362. 369-70 (Md. 2001»).
Here. Plaintiff asserts a numbcr of product liability claims against Dcfendants under both
theories. First. she alleges that the Defendants are strictly liable to her for the injuries shc
allegedly suffered. See ECF No. 23 at 15 (Count III). hi. at 23 (Count IX). Sccond. shc allegcs
that the Defendants are liable under a theory of negligence. Id. at 17 (Count IV); id. at 25 (Count
X). These claims are addressed in turn.
i. Strict Liabilil)'

Maryland courts rely on one of two different tests in assessing a striet liability design
defeet ease: the "risk-utility" test and the "consumer expectation" test. See Halliday,'. S/lIrm,
Rllger & Co.. 792 A.2d 1145. 1150 (Md. 20(2). Courts use the risk-utility test where a plaintiff
alleges that a product "malfunctions in some way:' Ruark \'. B.I/IV o/N Alii.. LLC. No. ELII-092738.2014 WI. 1668917, at *6 (D. Md. Apr. 24.2014). Otherwise. courts rely on the eonsumer
expectation test. f/allida)'. 792 1\. 2d at 1150; see also Green \'. Wing E11Ierprises. /nc .. No.
RDB-14-J913. 2016 WL 739060, at *2 (D. Md. Feb. 25. 2016) (..the consumer expectation test
applies to strict liability claims in which the plaintiff alleges injury due to a design deleet").
Under this test. a seller of a produet is liable to the consumer where the product is in a "condition
not contemplated by the ultimate consumer:' which will be dangerous ..to an extent beyond that
which would be contemplated by the ordinary consumer who purchases it. with the ordinary
knowledge common to the community as to its characteristics." !d.
Here. Plaintiff has sufticiently pleaded that Defendants are strictly liable under the
consumer expectation test. I'laintiffhas alleged that while the product was packaged as a "NOI. YE" product. which would "I'rotect[] [the customer's1 Scalp & Skin:' and would "Ensurcf1 a

II

No-Mistake

Application'"

lye-like chemical
directions

ECF No. 23 '119. in reality. thc Amla Relaxcr contained

that was capable of severely injuring even a consumcr

a dangerous

who I()llowed all

ineluded with the Amla Relaxcr. id ~ 39. Taken as true. these lacts plausibly allege

that the Amla Relaxer was in a "conditionnot

contemplatcd

extent beyond that which would be contemplated
Therefore.

Plaintiffs

by the ultimate consumer"

by the ordinary consumer

strict liability elaims (Counts

..to an

who purchases

III and IX) survi,'e Defendants'

it'"

Motion to

Dismiss.

ii. Ne~ligencc
"The basic elements

of negligence

apply in negligence-based

products liability cases'"

Parker. 891 F. Supp. 2d 773 at 780. See also Banks \'. lron/lusller
(Md. Ct. Spec. App. 1984). As a matter of law ... [a] manulacturer
exercise reasonable

care in the design and manufacture

Corp .. 475 A.2d 1243. 1250
generally

of his product'"

...

has a duty to

Fischhach & Moore In/ 'I

Corp. \', Crt/ne Barge R-I-I. 632 F.2d 1123, 1127 (4th Cir.1980) (citing Mort/n v. Faherge. In('..
273 Md. 538 (1975)). Plaintiffs

claims of negligence

Defendants

a defective

negligently

to warn consumers

designed

regarding

foreseeable

product: and. (2) that Defendants

Alii.

failed

designed.

L{/[o1lby Mach. Indus. \'. /Iort/n. 412 A.2d 407. 413 (Md, Ct. Spec. App.
followed the instructions

the AmJa Relaxer. and that she still suffered injury. Taking this allegation
using the Amla Relaxer in a reasonably

foreseeable

ineluded with

as true. Plaintiff was

way. but was still injured. As such. she has

pleaded that the Amla Relaxer was negligently

12

A

the product so that it is safe for all reasonably

1980). Here. Plainti ITpleaded that she and her daughter

sufficiently

negligently

pleaded that the Amla Relaxer was negligently

has a duty to design and manutacture
uses.

(I) that

the dangers of their products,

First. Plaintiff has sufficiently
manutacturer

raise two distinct allegations:

designcd.

Second, Plaintiff has sufticiently
consumcrs

pleaded that Defendants

negligently

lililed to warn

of the dangers inherent in the Amla Relaxer. See PlIrker, 891 F, Supp. 2d 773, 796

(D. Md. 2012) ("'the failure to warn is not an independent
law, but a subset of tort liability"

(quoting Morglln v. Gram

Supp. 2d 464, 466 (D. Md. 2002))). A manufacturer
danger in its product,"

theory or liability'
Children's

Prods .. Inc., 184 F.

"has no duty to warn of an open and obvious

or a danger of which a person is already aware.

Dougills Corp.. 148 F.3d 347, 350 (4th Cir.1998)

under Maryland

£1110/)'

\'.

,l/c/)'lI1nell

(citing MlI::dll MOloro{AIII .. lnc. v. Rogml'ski.

659 A.2d 391, 395 (Md. Ct, Spec. App. 1995)). Whether a danger is open and obvious is a
question that "cannot
should consider
intelligence.

be analyzed

"the complexity

in a vacuum."
or the [produet],

148 F.3d at 350. Instead, the Court

the knowledge,

age, background,

experience,

and training or the person injured. the extent to which his lor her] required contact

with the device is routine and repetitive,
distractions."

£111111)'.

[andl whether he lor she] is subject to

Blinks. 475 A.2d at 125 I,

Here, PlaintilThas

alleged that Defendants

could cause serious injury even ifused
that the Amla Relaxer's
and that a consumer

packaging

did not warn consumcrs

as instructed.

included warnings

that the Amla Rclaxer

lOCI' No. 23 at 17. PlaintilTacknowledges
that the product could "cause blindness"

should avoid contact with skin. but alleges that these appeared "in very

small tine print." 1<1. ~ 34. PlaintitTalleges

that "[t]he warnings

hazards when the lAmia Relaxer] is being misused"
can occur during reasonable
Plaintiff has stated a plausible

and/or foreseeable

... only warn consumers

and "Ii,il to warn against hazards ...

use." Id. ~ 35. Taking these allegations

claim for negligent

13

or

failure to warn.

that

as true,

C. Fraud-Based Claims (Counts V, VI)
Plaintiff allegcs that the Manufacturing
violations

of the Maryland

Deceptive

Trade Practices:'

Consumer

Dcfcndants

Protection

arc liable for traud. as wcll as lor

Act ("MCPA"):

specifically.

ECF No. 23 at f9-20. Under Maryland

Iralld based on an aflinnative

misrcprcscntation.

"Unf~lir or

law. to statc a claim for

a plaintiff must allege that:

(I) a represcntation made by a party was f:1Ise: (2) its falsity was either known to the
party or made with such reckless indifference to the truth to impute knowledge: (3) the
misrepresentation
was made for the purpose of defrauding some other person: (4) that
person reasonably acted in rcliancc upon thc misrcprescntation
with filII beliefin its truth.
and he would not have done the thing Irom \dlich damage resulted had it not bcen madc:
and (5) the person so acting suffercd damage directly resulting from thc
misreprcscntat ion.

Learning Works. Inc. \'. The Learning Annex. Inc.. 830 F.2d 541. 545-46 (4th Cir. 1987) (citation
See also Todd \'. Xoom Energy M{//~dand. LLC. No. G.lII-15-154.

omitted).

*9 (D. Md. Feb. 22. 2016). Similarly.
prohibits

covered businesscs

writtcn statemcnt.
tendency.

deceptive

or effect of dcceiving

1'.

Consumer

Protcction

falscly disparaging.

or other rcprescntation

or misleading

Act ("MCP A")
or misleading

oral or

of any kind which has the capacity.
,<.,'ee Md. Code. Com. Law ~ 13-

consumcrs:'

bringing a private action under [thc MCPA] must allcge (I) an unlilir or

practice or misrepresentation

injury," Bey
App'x

from making a "[flalsc.

visual description.

301 (I). "A consumer

thc Maryland

2016 WL 727108. at

that is (2) relied upon, and (3) causes them actual

Shapiro Brown & All. UI'. 997 F. Supp. 2d 310.319

(D. Md.). a{fd. 584 F.

135 (4th Cir. 2014) (citing Slell'arl \'. Biel'l/Illll. 859 F. Supp. 2d 754. 768 (D. Md.

2012); Lloyd. 916 A.2d at 277).
Plaintiff has suflicicntly

pleaded the overlapping

MCP A. Pfainti ff has alleged that: (I) the Manufacturing

elemcnts of fraud and a violation of the
Defcndants

as "NO-L YE:' even though parts of the product contained
23

'i~
27-28

("One of the retailer wcbsites

...

lists 'sodium
14

marketed the Amla Relaxer

lye or a lye-like substance.
hydroxide'

lOCI' No.

among the lAmia

Relaxer's]

ingredients."):

(2) that the Manufacturing

false. id. '132: (3) that the Manufacturing
expectation

that consumers

was aimed at a consumer
."): (4) that PlaintilTrelied

Defendants

Defendants

made the representations

would rely on those representations.
group that was seeking alternatives
on the representations

knew its representations
with the

id. ~ 20 ("This representation

to traditional

lye-based relaxers ...

when deciding to purchase the Amla Relaxer.

id. ~ 26: and. (5) that Plaintiff suffered injuries resulting Irom the misrepresentations.
Taking all these facts as true. PlaintifThas

were

sunieiently

id. ~ 39.

pleaded causes of action i()r fraud and

violation of the MCI'A. and Counts V and VI will not be dismissed"

IV.

CONCLUSION
For the foregoing

reasons. Defendants'

and denied in part. Specifically.

Defendants'

Motion to Dismiss. ECF No. 30. is granted in part
Motion to Dismiss is granted regarding

claim of breach of implied warranty against the Retail Defendants.
dismissed.

In all other regards. Defendants'

Plaintiffs

Count VIII. which will be

Motion to Dismiss is denied. A separate Order shall

issue.

Date: November

Z'1 . 20 17
GEORGE.I. HAZEL
United States District Judge

(, Defendants had also moved 10 dismiss Plaintiffs claim for punitive damages. ECF No. 30-1 at 10. In
Maryland. punitive damages may be awarded where .'the plaintiff has established the defendant's conduci was
characterized by evil motive. intent to injure. ill will. or fraud. i.('., 'actual malice .... Ellerill\', rail/ax S'al'., FS.IJ..
652 A.2d II 17. I 125 (Md. 1995). See also '\~r/es v. Rent-,J-Ctr .. Il1c .• No. JK8-15-300. 2015 WL 4129576. at *3
(D. Md. July 7. 2015). Here. having already found that Plaintiff sufficiently alleges the elements of fraud.
Defendants' alleged "actual knmvledge of falsity. coupled \",itll [its <tlleged} intent to deceive IPlaintifll by means of
the false statement. constitutes the actual malice required to support an a\vard of punitive damages." Ill. at 1126.

15