CHANDLER v. L'OREAL USA, INC. et al
Filing
46
MEMORANDUM OPINION indicating that, for reasons more fully stated within, Defendants' motion for summary judgment 36 is granted and all of Plaintiff's claims will be dismissed, with prejudice. Appropriate Orders follow. Signed by Judge Nora Barry Fischer on 9/14/18. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KIM E. CHANDLER,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
L’OREAL USA, INC. and SOFT SHEENCARSON LLC,
Defendants.
Civil Action No. 17-1141
Judge Nora Barry Fischer
MEMORANDUM OPINION
I.
INTRODUCTION
In this products liability action, Plaintiff Kim Chandler (“Plaintiff”) alleges that she was
injured after using an at-home hair relaxer product manufactured and sold by Defendants L’Oreal
USA, Inc. and Soft Sheen-Carson, Inc., (“Defendants”). (Docket No. 1-1). Plaintiff asserts claims
for strict liability, negligence, breach of implied warranty, fraud and violations of the Pennsylvania
Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) against Defendants. (Id.).
Presently before the Court is a motion for summary judgment filed by Defendants which is
opposed by Plaintiff. (Docket Nos. 36; 40). The motion has been fully briefed and neither party
requested oral argument, making it ripe for disposition. (Docket Nos. 36-41; 44-45). After careful
consideration of the parties’ arguments, and for the following reasons, Defendants’ motion is
granted.
II.
BACKGROUND
A. Relevant Facts
Plaintiff is a 62-year old resident of Uniontown, Pennsylvania. (Docket No. 1-1 at 13).
She has shoulder length hair which she described as “coarse” and 40 years of experience applying
1
at-home hair relaxer products to straighten her hair. (Docket Nos. 38 at ¶ 3; 41 at ¶ 3; Docket No.
38-2 at 16-17). For the past decade, Plaintiff has relaxed her hair with Defendants’ Dark and
Lovely ® relaxer. (Id.). She estimated that she applies this type of product to the areas of regrowth
in her hair every four weeks. (Docket No. 38-2 at 38).
On March 11, 2017, Plaintiff went to her local CVS pharmacy in order to purchase Dark
and Lovely ® relaxer but the store was out of this product. (Docket Nos. 38 at ¶ 4; 41 at ¶ 4).
Rather than travel to a different store, she purchased Defendants’ Regular Optimum Salon Haircare
® Defy Breakage Salon No-Lye Relaxer (the “Defy Breakage relaxer”), explaining that she did so
because her hair “needed done.” (Docket Nos. 38 at ¶ 1; 41 at ¶ 1). Plaintiff testified that she had
not previously used the Defy Breakage relaxer. (Docket Nos. 38 at ¶ 2; 41 at ¶ 2). She conceded
that when she purchased the Defy Breakage relaxer, she did not look at the exterior packaging
other than to determine the strength of the product, which was listed on the box as “regular.”
(Docket No. 38-2 at 38). Plaintiff admitted that she did not read any of the warnings on the exterior
of the box or the list of ingredients. (Id.). However, she stated that she read the instructions
contained within the box before using the Defy Breakage relaxer. (Docket Nos. 38 at ¶ 15; 41 at ¶
15).
The front of the exterior packaging of the Defy Breakage relaxer contains a photograph of
a female model with straight hair. (Docket No. 38-3). The product is advertised as a “No-Lye
Relaxer,” “with whipped oil moisturizer,” and “90% Less Breakage,” for “Stronger, Smoother,
Hair,” on both the front and top of the package. (Id.). These areas also include “IMPORTANT –
READ & FOLLOW THE SAFETY INSTRUCTIONS,” in smaller print. (Id.). The bottom of the
packaging lists the product’s chemical ingredients and describes the contents of the box. (Id.).
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The rear of the exterior packaging also provides that the Defy Breakage relaxer offers
“Exclusive Salon Haircare at Home,” and “90% LESS BREAKAGE,” “[w]ith patented
Strengthening Ceramide, and Coconut Oil, Defy Breakage Relaxer Kit helps replenish moisture
for smooth, healthy-looking hair. Supreme conditioning infused at every step, before, during and
after relaxing.” (Id.). This portion also lists the seven items contained within the box, numbering
them one through seven. (Id.).
The side of the exterior packaging contains the following warnings:
-
-
-
-
-
IMPORTANT – READ BEFORE PURCHASING
This product may not be suitable for all hair types; a strand test must
be performed prior to application.
Use the strength of relaxer suited to your hair.
…
Do not use on bleached hair, highlighted hair, hair treated with
henna or metallic salts, or hair processed with a thio/perm product
such as thioglycolate, thiolactate, cysteine, cysteamine, sulfite. Hair
loss or breakage could occur.
Do not use on hair that is fragile, breaking, splitting or otherwise
damaged; for example, due to frequent coloring or other chemical
processes.
If you have permanent or demi-permanent haircolor, wait at least 2
weeks before relaxing.
Do not use if you have a sensitive, irritated or damaged scalp.
It is recommended that you use petroleum jelly during application
as indicated in enclosed instructions.
…
USAGE ADVISORY – SAFETY WARNINGS
Read and follow enclosed instruction sheet completely before using.
Failure to follow instructions or warnings or other misuse of the
product can cause serious injury to eyes or skin and can damage hair
or result in permanent hair loss.
…
Contains alkali.
Wear gloves provided in the kit throughout the relaxing process.
Avoid contact with eyes. Can cause blindness…
Keep relaxer off scalp and other skin areas.
In case of contact with skin, rinse immediately.
(Docket No. 38-3).
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An instructions page is enclosed within the packaging. (Docket No. 38-4). Under the
“SAFETY WARNINGS” section, the instructions reiterate that “[t]his product may not be suitable
for all hair types; a strand test must be performed prior to application” and contain two separate
lists, the relevant portions of which follow:
When you should NOT relax your hair:
Not suitable for use in children
If you have a sensitive, irritated or damaged scalp
If hair has been bleached or highlighted, processed with a
thio (perm) product …. or treated with henna or metallic
salts. Hair loss or breakage could occur.
If hair is fragile, breaking, splitting or otherwise damaged,
for example, due to frequent coloring or other chemical
processes
…
If the strand test results in hair breakage or scalp irritation,
do not relax hair.
…
What you should know before relaxing your hair:
Keep out of reach of children
This product may not be suitable for all hair types: a strand
test must be performed prior to application
Read and follow directions and warnings completely.
Failure to follow directions and warnings, or other misuse of
the product can cause serious injury to eyes or skin and can
damage hair or result in permanent hair loss.
…
Use the strength of Optimum Care relaxer suited to your
hair.
If hair has been relaxed previously, apply product to new
growth only. Application of product to previously relaxed
hair can cause hair breakage.
…
FOLLOW ALL DIRECTIONS CAREFULLY
(Id.). A separate section titled “PREPARATION OF THE HAIR,” provides that:
Following the application directions, test the mixture on one hair
strand before relaxing all the hair. In case of hair breakage or scalp
irritation after the test, do not use this product or any other relaxer.
Because timing and precision application is imperative to avoid hair
loss, hair breakage and/or scalp injury, it is recommended that you
do not apply the relaxer yourself. Ask another person to assist you.
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Always do a strand test before relaxing, even if you have relaxed
before. The Strand Test determines how long to straighten the hair.
Prior to application, it is recommended that you apply petroleum
jelly on hairline, nape of neck and ear area only.
(Id.). Once the relaxer is applied to the strand, the instructions direct users to:
check texture and straightness of your hair frequently while waiting.
If they are satisfactory before recommended processing time is up,
end the test. Record time in Time Chart above and use as your
processing time. Otherwise, use the time recommended in Time
Chart. Never exceed the maximum processing time indicated in the
Timing Chart.
(Id.). The instructions also provide that “[i]n case of hair breakage or scalp irritation after the test,
do not use this product or any other relaxer.” (Id.).
Under the “APPLICATION” section, there is a Timing Chart which has three columns for
hair type, recommended strength, and processing time. (Id.). For “normal” hair, the recommended
strength is the “Regular” relaxer and the processing time is 15-18 minutes. (Id.). For “coarse” hair,
the recommended strength is the “Super” relaxer (a different product) and the processing time is
18-20 minutes. (Id.). Finally, the instructions list a step-by-step process for using the relaxer. (Id.).
Relevant here, the second step “Apply the Relaxer Mixture” instructs users to:
Set a clock or a timer. Apply relaxer mixture to dry hair per the
directions below without touching scalp. If the hair has already been
relaxed, apply to new growth only. Follow the processing times.
The application time should be counted in the total processing time.
NEVER LEAVE THE RELAXER MIXTURE ON HAIR LONGER
THAN THE MAXIMUM PROCESSING TIME INDICATED IN
THE STRAND TEST. NEVER EXCEED THE MAXIMUM
PROCESSING TIME INDICATED IN THE TIME CHART.
(Id.).
Plaintiff did not apply the Defy Breakage relaxer to her hair immediately after purchasing
the product. Two days later, on March 13, 2017, Plaintiff used a heated curling iron on her hair in
preparation of the application. (Docket No. 38-2 at 37). She applied the relaxer the next day,
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March 14, 2017. (Docket No. 38-5). Plaintiff did not ask anyone to assist her and applied the
relaxer herself. (Id.). Plaintiff admitted that she did not perform a strand test prior to applying the
relaxer. (Docket No. 38-2 at 42). She testified that she had never performed a strand test when
applying a relaxer product to her hair in the past. (Id.). Plaintiff stated that she left the relaxer in
her hair for 20 minutes and that the time included her preparation time. (Id. at 43). She explained
that her hair was “coarse” and used the time provided in the instructions for that hair type. (Id.).
When Plaintiff rinsed off the relaxer, some of her hair fell out and went down the drain. (Id. at 48).
Plaintiff kept the box for the Defy Breakage relaxer but did not retain any of its contents. (Docket
No. 38-5 at 2).
Two weeks after sustaining this injury, on March 28, 2017, Plaintiff sought treatment from
Dr. Dayna Hrovath of Mountain State Dermatology and was diagnosed with traumatic alopecia of
the scalp and prescribed medications to treat her condition. (Docket No. 1-1). In a letter prepared
on that date, Dr. Hrovath states that:
Kim Chandler […] presented to our office today with hair loss to
her superior scalp. She states that a week ago she was using
“Optimum Care Hair Relaxer” according to directions and when she
rinsed, her hair fell out. She denies burning or rash.
Upon examination there was a large area on her superior scalp of
widespread hair loss. No erythema, burns or rash present.
Diagnosis is traumatic alopecia to scalp. We are treating her to
encourage hair regrowth, but this is not guaranteed to help.
(Docket No. 1-1 at 13). Since this initial visit, Plaintiff has experienced some regrowth of her hair,
although it has not returned to its original state prior to using Defendants’ product. (Docket No.
38-2 at 57).
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B. Procedural History
Plaintiff filed this case on August 4, 2017 in the Court of Common Pleas of Fayette County
and Defendants removed the action to this Court on August 30, 2017. (Docket No. 1). Defendants
filed their Answer on September 6, 2017. (Docket No. 5). The parties’ efforts at resolving the
matter through Court-ordered mediation were unsuccessful and the case continued through
discovery, which ended on March 9, 2018. (Docket Nos. 15; 34). In the interim, the Court denied
motions filed by Plaintiff to remand the matter to Fayette County and to compel discovery, the
latter of which was resolved after the parties completed a meet and confer at the Court’s direction.
(Docket Nos. 22; 32; 34). The Court likewise denied Defendants’ partial motion for summary
judgment as it was filed prematurely while discovery was ongoing and prior to the Court
establishing a briefing schedule. (Docket No. 28).
After discovery concluded and the Court entered a briefing schedule, Defendants submitted
the pending motion for summary judgment, supporting brief, concise statement of material facts
and appendix on April 9, 2018. (Docket Nos. 36-38). Plaintiff responded on May 4, 2018 by
filing her response, concise statement of material facts and opposing brief. (Docket Nos. 39-41).
Plaintiff did not present any additional evidence in opposition to the motion. (Id.). Defendants
replied on June 4, 2018. (Docket No. 44). Plaintiff then filed her sur-reply on June 7, 2018.
(Docket No. 42). Neither party requested that the Court hold oral argument. (See Docket No. 35).
Accordingly, as the motion is now fully briefed, it is ripe for disposition.
III.
LEGAL STANDARD
Summary Judgment is appropriate when the moving party establishes “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). A genuine dispute of material fact is one that could affect the outcome of
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litigation. Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). However, “[w]here the record taken
as a whole could not lead a rational trier of fact to find for the non-moving party, there is no
genuine issue for trial.” N.A.A.C.P. v. North Hudson Reg’l Fire & Rescue, 665 F.3d 464, 475 (3d
Cir. 2011) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)).
The initial burden is on the moving party to adduce evidence illustrating a lack of genuine,
triable issues. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). Once the moving party satisfies its burden, the
non-moving party must present sufficient evidence of a genuine issue, in rebuttal. Santini v.
Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587).
When considering the parties’ arguments, the court is required to view all facts and draw all
inferences in the light most favorable to the non-moving party. Id. (citing United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962)). The benefit of the doubt will be given to allegations of the nonmoving party when in conflict with the moving party’s claims. Bialko v. Quaker Oats Co., 434 F.
App’x 139, 141 n.4 (3d Cir. 2011) (citing Valhal Corp. v. Sullivan Assocs., 44 F.3d 195, 200 (3d
Cir. 1995)).
Nonetheless, a well-supported motion for summary judgment will not be defeated where
the non-moving party merely reasserts factual allegations contained in the pleadings. Betts v. New
Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (citing Williams v. Borough of West
Chester, 891 F.2d 458, 460 (3d Cir. 1989)). The non-moving party must resort to affidavits,
deposition testimony, admissions, and/or interrogatories to demonstrate the existence of a genuine
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issue. Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773 (3d Cir. 2013) (citing
Celotex Corp., 477 U.S. at 324).
IV.
DISCUSSION
Defendants move for summary judgment as to each of Plaintiff’s product liability claims
set forth in her Complaint, i.e., breach of implied warranty of merchantability, negligent failure to
warn, strict liability, fraud, and an asserted violation of the UTPCPL. 1 (Docket Nos. 37; 44).
Defendants maintain that Plaintiff failed to present sufficient evidence to demonstrate that the Defy
Breakage relaxer was defective and that the product’s advertising contained any
misrepresentations upon which she justifiably relied. (Id.). Plaintiff counters that she has met her
burden to show genuine disputes of material fact as to each of her causes of action such that she
should be allowed to present her case to a jury at trial. (Docket Nos. 40; 45). After careful
consideration of the parties’ positions and the evidence of record, the Court finds that there are no
genuine disputes of material fact and that Defendants are entitled to judgment as a matter of law
on each of Plaintiff’s causes of action. The Court initially explains its rationale for granting
summary judgment as to Plaintiff’s strict liability, negligent failure to warn, and breach of implied
warranty claims and then discusses the insufficiency of the evidence as to her fraud and UTPCPL
claims.
A. Insufficient Evidence of Product Defect
In order for Plaintiff to prevail on her strict liability, negligence, and breach of implied
warranty claims, it is her burden to demonstrate that the Defy Breakage relaxer was defective. See
1
The Court notes that it need not engage in a choice-of-law analysis because the parties agree that all of
Plaintiff’s claims are governed by Pennsylvania law. See e.g., Walney v. SWEPI LP, 311 F. Supp. 3d 696, 706, n.7
(W.D. Pa. Apr. 20, 2018) (citations omitted) (“the parties have implicitly agreed that Pennsylvania law governs the
contractual claims at issue in this case, as they discuss only Pennsylvania law in their respective briefs. Accordingly,
the court need not engage in a choice-of-law analysis.”).
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e.g., McDaniel v. Kidde Residential and Fire & Commercial, 2015 WL 1326332, at *6 (W.D. Pa.
Mar. 24, 2015) (“In order to bring a claim for strict liability, negligence, and breach of warranties,
Plaintiffs must prove, inter alia, that the [product] was defective.”); White v. Home Depot, 2018
WL 2173960, at *4 (W.D. Pa. May 10, 2018) (“Plaintiffs bring claims of strict liability, negligence,
and breach of warranty,” and “[t]he ‘threshold inquiry’ for all of these theories is whether the
product was defective.”). Plaintiff asserts that the product is defective under failure to warn and
manufacturing defect theories of liability.2 (Docket No. 1-1). The Court examines the sufficiency
of the record evidence as to both theories, in turn.
1. Failure to Warn
Plaintiff’s failure to warn claims sound in strict liability and negligence. (Docket No. 11). Pennsylvania has adopted Section 402A of the Restatement (Second) of Torts for strict
products liability claims. Webb v. Zern, 220 A.2d 853, 854 (Pa. 1966); Tincher v. Omega Flex,
Inc., 104 A.3d 328, 399 (Pa. 2014). Section 402A provides, in pertinent part, that a seller is strictly
liable for physical harm caused by “any product in a defective condition unreasonably dangerous
to the user or consumer.” Restatement (Second) of Torts § 402A. A plaintiff “seeking relief under
a strict product liability cause of action must prove that ‘the product was defective, the defect
existed when it left the defendant’s hands, and the defect caused the harm.’” High v. Pennsy
Supply, Inc., 154 A.3d 341, 345–46, reargument denied (Mar. 16, 2017), appeal denied, 171 A.3d
1287 (Pa. 2017) (quoting Barton v. Lowe’s Home Centers, Inc., 124 A.3d 349, 354–55 (Pa. Super.
Ct. 2015)). “A dangerous product can be considered ‘defective’ for strict liability purposes if it is
2
The Court notes that Pennsylvania law also permits a strict liability claim alleging that a product is defectively
designed but no such claim is advanced by Plaintiff in this case. See e.g., Roudabush v. Rondo, Inc., No. 3:15-CV059, 2017 WL 3912370, at *2 (W.D. Pa. Sept. 5, 2017) (quotation omitted) (“A defective condition may be established
by proving either a manufacturing defect, a design defect, or a failure-to-warn defect.”).
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distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the
product.” Davis v. Berwind Corp., 547 Pa. 260, 267 (Pa. 1997) (citing Mackowick v. Westinghouse
Electric Corp., 525 Pa. 52 (1990)). “The determination of whether a warning is adequate and
whether a product is ‘defective’ due to inadequate warnings are questions of law to be answered
by the trial judge.” Id.
In Pennsylvania, claims for negligent failure to warn are governed under Section 388 of
the Restatement (Second) of Torts. Smith v. Howmedica Osteonics Corp., 251 F. Supp. 3d 844,
853 (E.D. Pa. 2017) (citing Incollingo v. Ewing, 282 A.2d 206, 220 n.8 (Pa. 1971)). Under Section
388, the manufacturer has a duty to exercise reasonable care to inform those for whose use the
article is manufactured of the facts which make it likely to be dangerous. Id. To sustain a claim
for negligence under Pennsylvania law, Plaintiff must show that: (1) Defendants owed a duty to
Plaintiff; (2) Defendants breached that duty; and (3) that breach was the proximate cause of
Plaintiff’s injuries. Rowland v. Novartis Pharms. Corp., 34 F. Supp. 3d 556, 569 (W.D. Pa. 2014)
(citation omitted). Plaintiff must also show that the manufacturer was at fault. Igwe v. Skaggs, 258
F. Supp. 3d 596, 614 (W.D. Pa. 2017).
Although negligence and strict liability claims remain distinct under Pennsylvania law,
there is some overlap in the context of a failure to warn theory. See Igwe, 258 F. Supp. 3d at 614.
Whether the claim is based on strict liability or negligence, a plaintiff must show that the absence
or inadequacy of warnings was the factual and proximate cause of the injury. Id. In a failure to
warn case, the question of causation is ordinarily left to the jury. Punch v. Dollar Tree Stores, Inc.,
2017 WL 752396, at *15 (W.D. Pa. Feb. 17, 2017). However, to reach a jury, “the evidence must
be such as to support a reasonable inference, rather than a guess, that the existence of an adequate
warning might have prevented the injury” and “if the relevant facts are not in dispute and the
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remoteness of the causal connection between the defendant’s negligence and the plaintiff’s injury
clearly appears, the question becomes one of law.” Id. (quoting Conti v. Ford Motor Co., 743 F.2d
195, 197 (3d Cir. 1984)). Similarly, “[i]f a product contains a sufficiently clear warning, and the
purchaser or user disregards that warning and is injured as a result, the manufacturer is not liable
as a matter of law.” Roudabush v. Rondo, Inc., 2017 WL 3912370, at *7 (W.D. Pa. Sept. 5, 2017).
In this Court’s estimation, Plaintiff has failed to present sufficient evidence to establish a
genuine dispute of material fact for trial on her failure to warn claims as a reasonable jury could
not conclude that the warnings provided were inadequate and no evidence has been presented to
demonstrate that an adequate warning may have prevented her injury. See Flanagan v. martFIVE,
LLC, 259 F. Supp. 3d 316, 321 (W.D. Pa. Apr. 10, 2017) (quoting Conti v. Ford Motor Co., 743
F.2d 195, 199 (3d Cir. 1984) (“a defendant may be liable in failure-to-warn claims ‘only when
there is sufficient evidence that additional warnings or reminders may have made a difference.’”)).
To this end, the record is undisputed that Plaintiff did not read the warnings on the exterior of the
Defy Breakage relaxer box and while she read the warnings/instructions which were provided
inside the box, she concedes that she ignored same. See Hatcher v. SCM Group, N.A., Inc., 167
F. Supp. 3d 719, 730 (E.D. Pa. Mar. 1, 2016) (citing Davis v. Berwind Corp., 547 Pa. 260, 690
A.2d 186, 190-91 (Pa. 1997)) (“the Court must consider all of the warnings provided with the
product, not just the on-product warnings, when evaluating whether a manufacturer is strictly liable
for failure to warn.”). This Court believes that the product’s packaging and instruction sheet
clearly warn consumers that failure to follow the written instructions may result in injury, including
permanent hair loss, the exact injury about which Plaintiff complains. See Roudabush, 2017 WL
3912370, at *7. Moreover, the record is undisputed that Plaintiff applied the relaxer to her hair
without conducting a strand test which the instructions note, repeatedly, is necessary because the
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product is not suitable for all hair types. (See Docket Nos. 38-3; 38-4). Further, the purposes of
the test are to ensure that the product reacts properly to the user’s hair and to determine how long
the product should be left in the hair after an application. (Id.).
Specifically, the exterior warnings clearly state under bold headings “IMPORTANT –
READ BEFORE PURCHASING” and “USAGE ADVISORY – SAFETY WARNINGS” that:
[t]his product may not be suitable for all hair types, a strand test
must be performed prior to application [and] [r]ead and follow
enclosed instruction sheet completely before using. Failure to
follow instructions or warnings or other misuse of the product can
cause serious injury and can damage hair or result in permanent hair
loss.
(Docket No. 38-3). In similar vein, the interior instruction sheet states under a bold “SAFETY
WARNINGS” heading that “[t]his product may not be suitable for all hair types; a strand test must
be performed prior to application.” (Docket No. 38-4). The directions further warn that “you
should NOT relax your hair” “if the strand test results in hair breakage or scalp irritation” and
reiterate that “this product may not be suitable for all hair types: a strand test must be performed
prior to application” as one of the important things “you should know before relaxing your hair.”
(Id.). A separate section titled “Preparation of the Hair” provides additional admonitions as to the
need for users to conduct a strand test and directions as to how to do so:
Following the application directions, test the mixture on one hair
strand before relaxing all the hair. In case of hair breakage or scalp
irritation after the test, do not use this product or any other relaxer.
Because timing and precision application is imperative to avoid hair
loss, hair breakage and/or scalp injury, it is recommended that you
do not apply the relaxer yourself. Ask another person to assist you.
Always do a strand test before relaxing, even if you have relaxed
before. The Strand Test determines how long to straighten the hair.
Prior to application, it is recommended that you apply petroleum
jelly on hairline, nape of neck and ear area only.
…
[…] check texture and straightness of your hair frequently while
waiting. If they are satisfactory before recommended processing
13
time is up, end the test. Record time in Time Chart above and use as
your processing time. Otherwise, use the time recommended in
Time Chart. Never exceed the maximum processing time indicated
in the Timing Chart.
(Id.). The instructions again state that “[i]n case of hair breakage or scalp irritation after the test,
do not use this product or any other relaxer” and “NEVER LEAVE THE RELAXER MIXTURE
ON HAIR LONGER THAN THE MAXIMUM PROCESSING TIME INDICATED IN THE
STRAND TEST.” (Id.).
Plaintiff has not adduced any evidence supporting her position that these warnings and
instructions were inadequate. (See Docket Nos. 39-41; 45). She also did not testify that she
misunderstood any of them. (Docket No. 38-2). Instead, she explained that she did not conduct a
strand test because she had never done so when applying different hair relaxer products to her hair
in the past. (Id. at 42). She described that she left the product in her hair for 20 minutes because
she has “coarse” hair and the table on the instruction sheet indicated that Defendants’ “super”
relaxer should be applied for a maximum of 18-20 minutes to that hair type. (Id. at 42-3). In
addition, despite claiming the provided warnings were insufficient, Plaintiff has not presented any
evidence of an alternative warning which would have protected her from the harm she sustained.
(See Docket Nos. 38 at ¶ 25; 41 at ¶ 25 (“It is Plaintiff’s position that the warning is insufficient.
It is not Plaintiff’s obligation to provide Defendant with a sufficient warning.”)). Absent such
evidence, a jury would have to speculate to find in her favor. See Flanagan, 259 F. Supp. 3d at
321. All told, Plaintiff has failed to meet her burden to establish that there is a genuine dispute of
material fact on her failure to warn claims, i.e., she has not proven that the product was
unreasonably dangerous due to an insufficient warning. See Igwe, 258 F. Supp. 3d at 614.
Accordingly, Defendants’ motion for summary judgment is granted as to Plaintiff’s strict liability
and negligent failure to warn claims.
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2. Manufacturing Defect
Plaintiff also asserts claims for strict liability and breach of the implied warranty of
merchantability,3 both of which rely upon proof of a manufacturing defect. (Docket No. 1-1). As
noted, to make out a claim for strict products liability, Plaintiff must prove that (1) the relaxer was
defective, (2) the defect existed when it left Defendants’ hands, and (3) the defect caused the harm.
Igwe, 258 F. Supp. 3d at 609 (citation omitted). “[A] manufacturing defect claim is essentially a
claim ‘that something went awry in the manufacturing process ... [and] the finder of fact need only
compare the product that caused the injury with other products that were manufactured according
to specifications.’” Bergstresser v. Bristol-Myers Squibb Co., Civ. A. No. 3:12-1464, 2013 WL
1760525, at *3 (M.D. Pa. Apr. 24, 2013) (quoting Dambacher v. Mallis, 336 Pa. Super. 22, 485
A.2d 408, 426 (Pa. Super. Ct. 1984)). A manufacturing defect can be established by direct
evidence of “a breakdown in the machine or a component thereof” or by circumstantial evidence
of a product malfunction as long as Plaintiff rules out abnormal use or secondary causes of the
injury. Smith, 251 F. Supp. 3d at 851 (citations omitted). “Whether a product is in a defective
condition is a question of fact ordinarily submitted for determination to the finder of fact; the
question is removed from the jury’s consideration only where it is clear that reasonable minds
could not differ on the issue.” Tincher, 104 A.3d at 335.4
3
Plaintiff clarifies in her Brief in Opposition that she has not asserted a claim for breach of implied warranty
of fitness for a particular purpose. (Docket No. 40 at 7 (“Plaintiff’s Complaint alleges an implied warranty of
merchantability, and not a cause of action of ‘fitness for a particular purpose.’”)).
4
Although the decision in Tincher was limited to the context of a design defect claim, the Pennsylvania
Supreme Court expressed that “the foundational principles upon which we touch may ultimately have broader
implications by analogy.” Tincher, 104 A.3d at 384 n.21. Pennsylvania courts have not directly addressed the
application of Tincher to manufacturing defect claims. However, the Pennsylvania Superior Court has expressed a
willingness to use Tincher as guidance for other strict products liability claims. See Amato v. Bell & Gossett, 116 A.3d
607, 620 (Pa. Super. Ct. 2015) (“[T]he Tincher Court nevertheless provided something of a road map for navigating
the broader world of post-Azzarello strict liability law.”).
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The U.S. Court of Appeals for the Third Circuit recognizes that claims for breach of the
implied warranty of merchantability and strict liability asserting a manufacturing defect are
“essentially the same.” Smith, 251 F. Supp. 3d at 854-55 (quoting Gumbs v. Int’l Harvester, Inc.,
718 F. 2d 88, 94 (3d Cir. 1983) (further citations omitted)); White v. Home Depot, 2018 WL
2173960, at *4 (W.D. Pa. May 10, 2018) (same). Under Pennsylvania law, “a warranty that the
goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with
respect to goods of that kind,” 13 Pa. C.S. § 2314(a), and requires that goods “have an inherent
soundness which makes them suitable for the purpose for which they are designed, that they be
free from significant defects, that they perform in the way that goods of that kind should perform,
and that they be of reasonable quality within expected variations and for the ordinary purpose for
which they are used.” Gall v. Allegheny Cty. Health Dep’t, 555 A.2d 786, 789 (Pa. 1989) (citations
omitted).
To establish a breach of the implied warranty of merchantability, Plaintiff must show that
Defendants’ relaxer was defective. Altronics of Bethlehem v. Repco, Inc. 957 F.2d 1102, 1105 (3d
Cir. 1992). A product may be found defective if it “functioned improperly in the absence of
abnormal use and reasonable secondary causes.” Id. (quoting Greco v. Bucciconi Eng’g Co., 407
F.2d 87, 89-90 (3d Cir. 1969)). Plaintiff bears the burden of demonstrating: (1) that the product
malfunctioned; (2) that Plaintiff used the product as intended or reasonably expected by the
manufacturer; and (3) the absence of other reasonable secondary causes. Id.
Initially, Plaintiff has not presented any direct evidence of a specific manufacturing defect
in the Defy Breakage relaxer. (See Docket Nos. 39-41; 45). To this end, Plaintiff admits that she
did not retain any portion of the product that she applied to her hair; hence it could not be evaluated
(by an expert or otherwise) to determine if it adhered to the product specifications. (See Docket
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Nos. 38-5 at 2; 41). She likewise has not introduced any evidence of a defect in the entire batch
or line of relaxer products from which the product she purchased was manufactured. (See Docket
Nos. 39-41; 45). However, the absence of direct evidence is not fatal to her claim, as a
manufacturing defect can be proven circumstantially under the malfunction theory. See Barnish
v. KWI Bldg. Co., 602 Pa. 402, 412 (Pa. 2009) (quotation omitted) (“In some instances, however,
the plaintiff may not be able to prove the precise nature of the defect in which case reliance may
be had on the ‘malfunction’ theory of product liability. This theory encompasses nothing more
than circumstantial evidence of product malfunction.”).
To meet her burden in this regard, Plaintiff must provide evidence of a malfunction along
with evidence ruling out abnormal use or reasonable secondary causes of the malfunction. See
McDaniel, 2015 WL 1326332 at *8 (citing Barnish, 980 A.2d at 541). “Establishing a prima facie
case under a malfunction theory does not require a plaintiff to proffer expert testimony to prove
how the product was defective or how the defect arose as a result of actions taken by the
manufacturer or seller.” Wilson v. Saint-Gobain Universal Abrasives, Inc., No. 213-CV-1326,
2015 WL 1499477, at *13 (W.D. Pa. Apr. 1, 2015) (quoting Walters ex rel. Walters v. Gen. Motors
Corp., 209 F. Supp. 2d 481, 487 (W.D. Pa. 2002), which cited Dansak v. Cameron Coca–Cola
Bottling, Co., 703 A.2d 489, 496 (Pa. Super. Ct. 1997)). Pennsylvania courts have recognized
various types of circumstantial evidence upon which a plaintiff may rely when pursuing a
manufacturing defect claim under the malfunction theory:
(1) the malfunction of the product; (2) expert testimony as to a
variety of possible causes; (3) the timing of the malfunction in
relation to when the plaintiff first obtained the product; (4) similar
accidents involving the same product; (5) elimination of other
possible causes of the accident; and (6) proof tending to establish
that the accident does not occur absent a manufacturing defect.
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Barnish, 980 A.2d at 542-43 (quoting Dansak, 703 A.2d at 496) (further citation omitted). With
that said, the Pennsylvania Supreme Court has held that:
a plaintiff does not present a prima facie malfunction theory case if
the plaintiff's theory of the case includes facts indicating that the
plaintiff was using the product in violation of the product directions
and/or warnings. In such a case, no reasonable jury could infer that
an unspecified defect caused a malfunction when the more likely
explanation is the abnormal use.
Barnish, 602 Pa. at 413.
Having carefully considered the evidence of record, it is this Court’s opinion that Plaintiff
has not met her burden to demonstrate a genuine dispute of material fact that the Defy Breakage
relaxer was defective under the malfunction theory. Id. As is discussed in the preceding section,
see § IV.A.1, Plaintiff used the product on a single occasion and admits that she did not adhere to
all of the provided instructions and warnings in that she did not conduct a strand test to determine
how her hair would react to the product or how long it should be applied. (Docket No. 38-2).
Given these admissions, “a reasonable jury could not infer that an unspecified defect caused a
malfunction when the more likely explanation is the abnormal use.” Barnish, 602 Pa. at 413.
Beyond these deficiencies, which preclude a finding that the product malfunctioned,
Plaintiff has not presented any of the other types of potential evidence which would support an
inference that a manufacturing defect in the product was the proximate cause of her injury. Indeed,
the only evidence introduced into the summary judgment record consists of excerpts of Plaintiff’s
deposition, her responses to interrogatories and the product’s packaging and instructions. (See
Docket Nos. 38; 41). To this end, Plaintiff has not presented any of the following: expert testimony
as to a variety of other possible causes; evidence of similar accidents involving the same product;
evidence eliminating other possible causes; or proof tending to show that this type of injury does
not occur absent a defect in the product. (See Docket Nos. 40-41; 45). At most, Plaintiff suggests
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that she will present evidence at trial showing that the product has caused this type of injury to
other individuals who followed the instructions and conducted the strand test. (Docket Nos. 40;
45). Of course, these types of allegations, without supporting evidence, are insufficient to create
a genuine dispute of material fact at the summary judgment stage. Anderson, 477 U.S. at 256 (“[A]
party opposing a properly supported motion for summary judgment may not rest upon mere
allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine
issue for trial.”); FED. R. CIV. P. 56(c)(1) (“A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by: (A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials.”). Moreover, “‘[t]he mere fact that an accident happens, […], does
not take the injured plaintiff to the jury,’” and Plaintiff “cannot rely on speculation, conjecture, or
guesswork to meet” her burden to advance the claims beyond summary judgment. Ellis v.
Beemiller, Inc., 910 F. Supp. 2d 768, 779 (W.D. Pa. 2012) (quoting Dansak, 703 A.2d at 496)).
For all of these reasons, the Court finds that Plaintiff has failed to meet her burden to put
forth evidence demonstrating a genuine dispute of material fact that the Defy Breakage relaxer
was defective. See Smith, 251 F. Supp. 3d at 854-55. Accordingly, Defendants’ motion for
summary judgment is granted as to her claims relying upon proof of a manufacturing defect, i.e.,
strict liability and breach of implied warranty of merchantability.
B. Insufficient Evidence of Misrepresentation and Justifiable Reliance
Plaintiff next asserts product liability claims under the UTPCPL and for common law
fraud. (Docket No. 1-1). She alleges that misrepresentations on the packaging included: that the
product is a “No-Lye Relaxer,” implying that it is safe and contains non-caustic chemicals; offers
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“exclusive salon haircare at home” with “90% less breakage”; and “patented Strengthening
Ceramide, and Coconut Oil, Defy Breakage Relaxer Kit helps replenish moisture for smooth,
healthy-looking hair. Supreme conditioning infused at every step, before, during and after
relaxing.” (Docket No. 40 at 4-5). Defendants seek summary judgment on the basis that Plaintiff
has not met her burden to demonstrate that she justifiably relied upon any of the alleged
misrepresentations provided along with the Defy Breakage relaxer. (Docket Nos. 37; 44). Having
considered the matter, the Court once again agrees with Defendants and will grant their motion for
summary judgment as to these claims.
The UTPCPL provides a private right of action for consumers harmed by unfair methods
of competition or deceptive business practices. 73 P.S. § 201-9.2(a). Under the statute, it is
unlawful for manufacturers to represent “that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits or quantities that they do not have” and to represent “that
goods or services are of a particular standard, quality or grade, or that goods are of a particular
style or model, if they are of another.” 73 P.S. § 201-2(4)(v), (vii). In order to maintain a cause of
action under the UTPCPL, a consumer must show that (1) she purchased or leased the good
primarily for consumer purposes, (2) she suffered some ascertainable loss, and (3) the loss resulted
from an unlawful method, act, or practice under the statute. McDaniel, 2015 WL 1326332, at *9
(citing Toy v. Metro. Life Ins. Co., 928 A.2d 186, 201 (Pa. 2007)). Pennsylvania law also requires
a plaintiff alleging violations under the UTPCPL to prove that he “justifiably relied on defendant’s
wrongful conduct or representation and that he suffered harm as a result of that reliance.” Id.
(quoting Yocca v. Pittsburgh Steelers Sports, Inc., 584 A.2d 425, 438 (Pa. 2004)). This requires
proof that the plaintiff “justifiably bought the product in the first place (or engaged in some other
detrimental activity) because of the misrepresentation.” Id. (citation omitted).
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In similar vein, to establish a claim of fraud under Pennsylvania law, Plaintiff bears the
burden of demonstrating: (1) a representation; (2) which is material to the transaction at hand; (3)
made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with
the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation;
and (6) that the resulting injury was proximately caused by the reliance. Shuker v. Smith & Nephew,
PLC, 885 F.3d 760, 778 (3d Cir. 2018) (citing Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994)).
After reviewing the parties’ briefs and corresponding arguments, the Court concludes that
Plaintiff has not meaningfully responded to Defendants’ position that her deposition testimony
undermines her claim that she justifiably relied upon any of the alleged misrepresentations her
counsel points to on the products’ packaging. (See Docket Nos. 40; 45). To reiterate, Plaintiff
testified that when she purchased the Defy Breakage relaxer, she did not look at the exterior
packaging other than to determine the strength of the product, which was listed on the box as
“regular.” (Docket No. 38-2 at 38). Plaintiff admitted that she did not read any of the warnings on
the exterior of the box or the list of ingredients. (Id.). While she read the instruction sheet, there
is simply no evidence in the record that she actually read the alleged misrepresentations in the
product’s marketing when she purchased and/or used the product, let alone relied upon any of
those statements to her detriment. (See Docket Nos. 38; 38-2; 41). Without such evidence,
Plaintiff has failed to meet her burden to create a genuine dispute of material fact for trial.
Therefore, Defendants’ motion for summary judgment on Plaintiff’s UTPCPL and fraud claims is
granted.
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V.
CONCLUSION
Based on the foregoing, Defendants’ motion for summary judgment [36] is granted and all
of Plaintiff’s claims will be dismissed, with prejudice. Appropriate Orders follow.
s/Nora Barry Fischer
Nora Barry Fischer
U.S. District Judge
Dated: September 14, 2018
cc/ecf: All counsel of record.
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