Delgado v. Universal Beauty Products, Inc.

Filing 69

MEMORANDUM AND ORDER: Based on the foregoing, defendants motion for summary judgment, DE 59 , is GRANTED and plaintiffs cross motion for summary judgment is denied, DE 61 . The Clerk of Court is directed to enter judgment and close the case. SEE ATTACHED ORDER FOR FURTHER DETAILS. So Ordered by Judge Gary R. Brown on 9/21/2022. (Cubano, Jazmin)

Case 2:17-cv-03245-GRB-SIL Document 69 Filed 09/21/22 Page 1 of 9 PageID #: 3217

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LUCY DELGADO,

X

Plaintiff,

FILED 
CLERK 

2:56 pm, Sep 21, 2022

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
MEMORANDUM &
LONG ISLAND OFFICE 

ORDER

- against –

17-CV-3245 (GRB)(SIL)
UNIVERSAL BEAUTY PRODUCTS, INC,
Defendant.

X

GARY R. BROWN, United States District Judge:
Plaintiff, Lucy Delgado, brings this action alleging negligence, strict products liability and
breach of warranty, predicated upon a single use of a hair care product manufactured by defendant
Universal Beauty Products, Inc., which she claims caused her permanent hair loss. Plaintiff’s case,
however, faces an insurmountable hurdle: the complete absence of proof of causation. Presently
before the Court are the parties’ cross-motions for summary judgment. For the reasons that follow,
plaintiff’s motion is denied, and defendant’s motion is granted.
Factual Background
Defendant Universal Beauty Products, Inc. markets a product known as Robert’s Diamond
Bond (the “product”). DE 1, at ¶ 14; 56, at ¶ 6. Robert’s Diamond Bond is a gel hair product,
which, when applied to the head, dries to form a hard shell 1 allowing the user to glue on hair
extensions more safely. DE 52, at ¶ 6; 56, at ¶ 6. Hair loss is a known risk of adhesives used to
apply hair extensions. DE 52, at ¶ 26; 56, at ¶ 26. Robert’s Diamond Bond purports to protect the
user’s natural hair from such adhesives. DE 56, at ¶ 6.

This shell is occlusive, meaning it “create[s] a physical barrier on top of the skin that helps prevent trans-epidermal
water.”
The Derm Review, Difference Between Humectant, Emollient, Occlusive (Aug. 26, 2019),
https://thedermreview.com/difference-between-humectant-emollient-occlusive/. Occlusive barriers are common
features of cosmetic products, including moisturizing creams, Vaseline, lip products and hair products. DE 56, at ¶¶
76, 77.
1

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Plaintiff purchased the product from a beauty supply store in Jamaica, Queens, DE 52, at
¶¶ 28, 30, and, on November 1, 2015 applied it to her hair and scalp in her home. 2 Id. at ¶ 18.
Plaintiff washed, conditioned and dried her hair, gathered it into a ponytail, and applied the
product. Id. at ¶¶ 31-33. She again used her blow drier to dry the gel, which hardened to a plasticlike shell. Id. at ¶ 34. After donning a hair net, plaintiff used Lanell Hair glue to attach hair
extensions. 3 Id. at ¶¶ 35-36. After gluing the extensions, plaintiff cut the netting, releasing some
of her natural hair. Id. at ¶ 37. 4
A day later, plaintiff’s scalp began to itch, which progressively worsened. Id. at ¶¶ 41, 43.
Nevertheless, plaintiff left the product and glue on her head for at least a week and a half. DE 56,
at ¶ 44. When plaintiff did wash out the product, portions of her hair fell out. DE 52, at ¶ 45.
Plaintiff acknowledges that hair loss from extensions is not uncommon; an experienced hairstylist,
she helped remove extensions for clients and assessed the damage to their scalps, including for the
possibility of permanent loss. DE 54-8, at 19.
Nine months after plaintiff used the product and experienced hair loss she was examined
by a dermatologist who recommended a shampoo that treats fungal infections and allergic
reactions. DE 52, at ¶¶ 55, 56; 56, at ¶ 55. Plaintiff did not use the shampoo, nor did she seek any
additional medical advice or treatments. DE 52, at ¶¶ 57-59. Plaintiff has consistently declined
treatment. DE 54-8, at 147-48.
Expert Findings

At the time of application plaintiff was 56 years old. DE 54-13, at 2. Plaintiff is a hair care professional but prior
to November 2015 she never used the product on herself or others. DE 52, at ¶¶ 21, 24; 56, at ¶¶ 21, 24.
3
Lanell Hair glue includes the following warnings: “This product contains natural rubber latex which may cause
allergic reactions in some individuals. Do not put on scalp. . . . To avoid hair loss, do not pull. To remove, use Lanell
Hair Bond remover.” DE 56, at ¶ 97.
4
Defendant alleges that plaintiff misused and misapplied the product, DE 66, at 7, but, for the purposes of this motion,
this Court need not consider this argument.
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The remainder of the product purchased by plaintiff was unavailable for testing by the
parties’ experts. 5 Defendant provided six “batch sheets” reflecting information for manufacturing
runs corresponding to the time that plaintiff made her purchase. DE 52, at ¶¶ 12, 13. Each sheet
contains the formula, notes concerning the formulation of that particular batch and results of
testing, which ensures the component chemicals are within a set range. DE 54-5 at 17.
Plaintiff’s expert concedes that there are “no studies that indicate any chemical used in the
product can cause permanent hair loss.” DE 56, at ¶ 88. In fact, in the deposition of plaintiff’s
expert, when questioned about whether he has ever observed or is aware of any evidence than any
ingredient in the product caused permanent hair loss or cell damage at the concentrations present,
he consistently answered “no.” DE 54-17, at 117 (pH range); DE 53-18, at 14 (Dowicil 200), 15
(pink sugar), 16 (benzyl benzoate), 17 (vanillin), 18 (propylene glycol), 20 (polyquaternium-7),
21 (arionor ebony, SDA-400), 23 (germaben II), 24 (diazolidinyl urea). 6 In his report, the only
potentially relevant opinion evidence offered by plaintiff is the hypothesis that these ingredients,
used in combination, could be responsible for plaintiff’s alleged hair loss. DE 61-1, at 4; see also
DE 54-18, at 70. However, as to this opinion, the lynchpin of plaintiff’s case, plaintiff’s expert
conceded at deposition that he has neither conducted, nor can identify, any scientific testing to
support such a hypothesis. DE 53-17, at 71. At most, plaintiff’s expert supports his conclusions
with his “imagination.” DE 54-18, at 44. Meanwhile, plaintiff’s expert concedes that her alleged

Plaintiff sent a package to defendant with a bag of her hair, photographs of her head and of the product. DE 28-5, at
62-64. The hair and photographs were returned to plaintiff’s counsel. DE 52, at ¶ 53. Plaintiff alleges she also sent
the product to defendant, but defendant has no record of receiving the product. Id. at ¶ 50. Because neither plaintiff
nor defendant have the product, no testing was done on the substance plaintiff used on November 1, 2015.
6
While plaintiff’s counsel argues two ingredients, Polyvinal Alcohol (“PVA”) and Dowicil 200, are listed in the batch
sheets at concentrations above the range permitted by the Cosmetic Ingredient Review (“CIR”), plaintiff’s expert
found those ingredients at the concentrations listed unconcerning. DE 53-18, at 11, 18 (noting that a 13%
concentration of PVA, greater than the concentration of PVA in the product, tested under an occlusive barrier was
safe for use and presented “no concerns”); id. at 13 (noting no knowledge of possible adverse affects of the 0.375%
concentration of Dowicil 200 in the product). Further, plaintiff’s expert testified that “generally these [CIR]
concentrations are based on either a 10- or 100-fold safety margin.” DE 53-17, at 126.
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hair loss may well be attributed to any number of known causes, including hair glues, DE 53-17,
at 104, dermatitis, DE 53-18, at 35, fungal infections, stress, iron deficiencies, aging and
menopause. Id. at 37-8, 45.
The record contains a semantic issue that requires clarification, to wit, whether the accused
product or its compents could constitute an irritant, a sensitizer and/or or a cause of “skin
corrosion.” According to plaintiff’s expert, “a sensitizer is specifically an allergic reaction. An
irritant is something that can cause, you know, redness of skin as a result of mechanical injury or,
you know, an immediate response, whereas a sensitizer is a delayed response.” 7 DE 53-18, at 77.
Plaintiff’s expert describes irritation as any damage, including permanent damage, id. at 50, but
the technical literature consistently refers to permanent damage as “skin corrosion,” which “is the
production of irreversible damage to the skin; namely, visible necrosis through the epidermis and
into the dermis, following the application of a test substance for up to 4 hours.” See n. 7. When
asked whether the product could be an irritant, plaintiff’s expert noted that it “could be an irritant
for prolonged use. It is not a strong sensitizer, and it does not corrode skin.” DE 53-18, at 50.
Further, plaintiff’s expert opines that “a product is an irritant if it is not corrosive.” Id. at 68.
Procedural History
Plaintiff commenced this action by filing a complaint on May 30, 2017. See DE 1.
Defendant answered the complaint on July 19, 2017, DE 6, and the parties proceeded with
discovery. The parties filed summary judgment motions on January 7, 2022, DE 66, with plaintiff
filing a reply separately on January 14, 2022. DE 68. This decision follows.

This explanation is more or less consistent with the Department of Labor’s definitions of the terms: “Skin sensitizer
means a chemical that will lead to an allergic response following skin contact. . . . Skin irritation is the production of
reversible damage to the skin following the application of a test substance for up to 4 hours.” United States Department
of Labor, Occupational Safety and Health Administration, Appendix A to § 1910.1200 – Health Hazard Criteria,
https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.1200AppA.
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Discussion
Summary Judgment Standard
The motions for summary judgment are decided under the oft-repeated and wellunderstood standard of review for these matters, as discussed in Bartels v. Inc. Vill. of Lloyd
Harbor, 97 F. Supp. 3d 198, 211 (E.D.N.Y. 2015), aff’d, 643 F. App’x 54 (2d Cir. 2016), which
discussion is incorporated by reference herein. “Where, as here, both parties moved for summary
judgment, ‘each party’s motion must be examined on its own merits, and in each case all
reasonable inferences must be drawn against the party whose motion is under consideration.’”
Gen. Star Indem. Co. v. Driven Sports, Inc., 80 F. Supp. 3d 442, 446 (E.D.N.Y 2015) (quoting
Lumbermens Mut. Cas. Co. v. RGIS Inventory Specialists, LLC, 628 F.3d 46, 51 (2d Cir. 2010)).
In sum, the question before the Court is whether, based upon the undisputed or improperly disputed
facts, the movant is entitled to judgment. It is with this standard in mind that the Court turns to
the motions at bar.
Products Liability
“[W]hen sitting in diversity cases, federal courts are bound to follow the substantive law
of the forum state.” Coleson v. Janssen Pharmaceutical, Inc., 251 F. Supp. 3d 716, 719 (S.D.N.Y.
2017) (citing Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994)). Plaintiff’s
complaint appears to set forth strict products liability claims; 8 negligence claims;8 and a claim for

“Under New York law, a plaintiff’s claim based upon an alleged design defect or manufacturing defect sounding in
either negligence or strict liability are functionally equivalent and will be analyzed concurrently.” Oden v. Boston
Scientific Corp., 330 F. Supp. 3d 887, 887 (E.D.N.Y. 2018) (collecting cases). Further, it is well-settled that
“[w]here liability is predicated on a failure to warn, New York views negligence and strict liability claims as
equivalent.” Id. (citation and quotation omitted). Design defect claims require that plaintiff “establish: (1) the
product as designed posed a substantial likelihood of harm; (2) it was feasible to design the product in a safer
manner; and (3) the design was a substantial factor in causing the plaintiff’s injury.” Coleson v. Janssen
Pharmaceutical, Inc., 251 F. Supp. 3d 716, 720 (S.D.N.Y. 2017) (test for design defect) (quotation and citation
omitted) (emphasis added). “To plead and prove a manufacturing flaw under either negligence or strict liability, the
plaintiff must show that a specific product unit was defective as a result of ‘some mishap in the manufacturing
process itself, improper workmanship, or because defective materials were used in construction,’ and that the defect
8

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breach of implied warranty, 9 all under New York Law. 10 See generally DE 1. “In order to
adequately plead a claim with regard to any of these [] theories, the plaintiff must show that the
product at issue was defective and that the defectively designed product was the actual and
proximate cause of the plaintiff's injury.” Oden v. Boston Scientific Corp., 330 F. Supp. 3d 877,
888 (E.D.N.Y. 2018) (citing Voss v. Black & Decker Mfg. Co., 450 N.E.2d 204, 207 (N.Y. 1983))
(emphasis added).
Causation is critical to each claim:
In a product liability case such as these, a plaintiff must prove both general and
specific causation as part of his or her prima facie case. General causation “bears
on whether the type of injury at issue can be caused or exacerbated by the
defendant’s product,’ while specific causation addresses ‘whether, in the particular
instance, the injury actually was caused or exacerbated by the defendant’s
product.’ Further, proof of general causation is a necessary predicate for that of
specific causation—if there is no evidence that a product is capable of causing the
kind of harm claimed, then there is no basis to accept evidence that the product in
fact did so in a specific case.
In re Rezulin Products Liab. Litig., 441 F. Supp. 2d 567, 575 (S.D.N.Y. 2006); see also In re
Propecia (Finasteride) Product Liability Litigation, No. 14-cv-0297 (BMC)(PK), 2021 WL
1883869, at *1 (E.D.N.Y. May 11, 2021) (“A products liability plaintiff must prove causation as
an element of his claim”) (citing Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 240, 72
N.Y.S.2d 7, 19 (2001)); Coleson, 251 F. Supp. 3d at 722 (“[I]n any products liability or personal

was the cause of plaintiff’s injury.” Colon ex rel. Molina v. BIC USA, Inc., 199 F.Supp.2d 53, 85 (S.D.N.Y. 2001)
(quoting Caprara v. Chrysler Corp., 417 N.E.2d 545 (1981)) (emphasis added). Pursuant to New York law, to
prevail on a failure to warn claim a plaintiff must establish: “(1) the manufacturer has a duty to warn; (2) against
dangers resulting from foreseeable uses about which it knew or should have known; and (3) that failure to do so was
the proximate cause of the harm.” Coleson, 251 F. Supp. 3d at 720 (quoting Barrett v. Black & Decker (U.S.) Inc.,
No. 06-cv-1970 (SCR)(MDF), 2008 WL 5170200, at *10 (S.D.N.Y. Dec. 9, 2008)) (emphasis added).
9
Finally, in order for a plaintiff “to plead a claim based upon breach of an implied warranty, the following elements
must be alleged: (1) that the product was defectively designed or manufactured; (2) that the defect existed when the
manufacturer delivered it to the purchaser or user; and (3) that the defect was the proximate cause of the injury.”
Oden, 330 F. Supp. 3d at 895 (citations omitted) (emphasis added).
10
This reading is further supported by plaintiff’s own arguments in her motion for summary judgment. See generally
DE 66-2.

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injury action, Plaintiffs must prove causation—that the Defendants’ conduct . . . was the proximate
cause of Plaintiff’s injuries.”) (quoting In re Mirena IUD Prod. Liab. Litig., 202 F. Supp. 3d 304,
310 (S.D.N.Y. 2016), aff’d, 713 F. App’x 11 (2d Cir. 2017)); Ruggiero v. Warner-Lambert Co.,
424 F.3d 249, 255 (2d Cir. 2005) (affirming the district court’s grant of summary judgment in
favor of defendant on the ground that plaintiff’s expert failed to submit competent evidence to
show, as a matter of general causation, that the product can cause the alleged harm). “State Law
has imposed this requirement because a jury cannot be allowed to speculate as to a chain of
causation that turns on the complex interaction between biological process and the drug in
question.” In re Propecia, 2021 WL 1883869, at *1 (citing In re Mirena, 202 F. Supp. 3d at 311);
see also In re Mirena IUS Levonorgestrel-Related Prod. Liab. Litig. (No. II), 387 F. Supp. 3d 323,
336 (S.D.N.Y. 2019), aff’d, 982 F.3d 113 (2d Cir. 2020) (“A plaintiff ‘may not rely on mere
speculation or conjecture as to the true nature of the facts to overcome a motion for summary
judgment.’”) (quoting Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010)). “To assure reliable
outcomes in a circumstance where the origins of an injury are not obvious or within the scope of
a lay juror’s everyday experience, and to avoid the risk that juries would equate correlation (the
fact that a given plaintiff used a product and developed injuries) with causation, it is imperative
that the factfinder be presented evidence that the product was capable of causing the injury of
which a plaintiff complains.” In re Mirena (No. II), 387 F. Supp. 3d at 339.
“Where a plaintiff cannot adduce proof sufficient to establish an essential element of her
claim, there can be no genuine issue of material fact, because a ‘complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all other facts
immaterial.’” Id. at 336 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). In
opposing a motion for summary judgment, “it is insufficient for [the nonmoving party] merely to

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assert a conclusion without supplying supporting arguments or facts.” Gen. Star Indem. Co., 80
F. Supp. 3d at 449 (citation and quotation omitted).
After years of unfettered discovery, plaintiff has failed to adduce sufficient evidence to
establish causation. Plaintiff’s expert failed to put forth any affirmative evidence in his expert
reports that the product could cause permanent hair loss, and instead speaks of what he “could
imagine.” DE 54-18, at 44. Such speculation cannot suffice to sustain plaintiff’s burden of proof
as to causation; indeed this kind of unsupported expert opinion would be excludable at trial under
a Daubert analysis. The admissible opinions of plaintiff’s expert fundamentally undermine her
case: plaintiff’s expert concedes that the product is not corrosive, DE 53-18, at 50, and, following
review of the additional evidence, concluded that “the raw materials at the usage levels are
appropriate based on a paper review.” DE 54-18, at 40. With regard to concentration of
ingredients, plaintiff’s expert noted that neither the concentration of PVA, DE 53-18, at 11, 18,
nor the concentration of Dowicil 200 were concerning. Id. at 11, 29-31. Further, plaintiff’s expert
testified that “generally these [CIR] concentrations are based on either a 10- or 100-fold safety
margin.” DE 53-17, at 125. Finally, plaintiff’s expert fails to put forth any evidence to support
the notion that the ingredients in the product, used singly or in combination, cause cell death. DE
54-18, at 67. Plaintiff’s expert reported that “[a]lthough each individual ingredient and chemical
used was evaluated, a formula is a complex mixture of chemicals and ingredients that could interact
with each other in unexpected ways, even if all the components qualify as ‘low risk’ based on
individual assessments.” DE 61-1, at 4 (emphasis added). Yet, plaintiff’s expert also testified that
a warning label reading “[u]se of the product may result in temporary or permanent hair loss”
would not be appropriate because there is no “scientific data on the final formulation to be able to

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make that claim.” DE 54-18, at 52. In sum, plaintiff has failed to put forth sufficient evidence of
causation, a fatal defect to all her claims. 11
Given that plaintiff cannot show general causation, an assessment of specific causation is
unnecessary. In re Mirena IUS (No. II), 387 F. Supp. 3d at 340 (“the cause of an individual
plaintiff’s injuries is properly reached only where a plaintiff can first adduce competent evidence
that the product is capable of causing the condition at issue.”) (citation omitted). As noted above,
“[a] plaintiff may not rely on mere speculation or conjecture as to the true nature of the facts to
overcome a motion for summary judgment.” Id. at 336.
CONCLUSION
Based on the foregoing, defendant’s motion for summary judgment, DE 59, is GRANTED
and plaintiff’s cross motion for summary judgment is denied, DE 61. The Clerk of Court is
directed to enter judgment and close the case.
SO ORDERED.
Dated: Central Islip, New York
September 21, 2022

/s/ Gary R. Brown
GARY R. BROWN
United States District Judge

While “a plaintiff may establish causation in a products liability action through circumstantial evidence . . . this
route is only available where a plaintiff cannot identify a specific flaw, and it requires a plaintiff to exclude all other
causes for the product’s failure that are not attributable to defendants.” Nachimovsky v. Nike, Inc., No. 19-cv-2120,
2022 WL 943421, at *6 (E.D.N.Y. Mar. 29, 2022) (quotation and citations omitted). Plaintiff fails both of these
requirements. She has alleged a specific defect, namely, the chemical mixture in the product, without proffering
admissible evidence which would permit a jury to find that the product was defective. Moreover, she has failed to
submit evidence that would exclude all other potential causes for her injury such as the hair glue, dermatitis, fungal
infection, stress, iron deficiency, aging or menopause. DE 53-17, at 104; DE 53-18, at 35, 38, 45.
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