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)

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"'~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' .. ,, * Plaintiff, * Case No.: G.IH-17-276 v. * L'OREAL USA, INC., et a/., * Defendants. * * * * * * * * * * * * * * 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 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 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

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