Chandler v. L'Oreal United States, Inc., Civil Action No. 17-1141

340 F.Supp.3d 551

Kim E. CHANDLER, Plaintiff,

v.L'OREAL USA, INC. and Soft Sheen-Carson LLC, Defendants.

Civil Action No. 17-1141

United States District Court, W.D. Pennsylvania.

Signed September 14, 2018

Samuel J. Davis, Michael A. Aubele, Davis & Davis, Uniontown, PA, for Plaintiff.

Daniel R. Michelmore, Jackson Kelly PLLC, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION

Nora Barry Fischer, U.S. District Judge

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 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. ).

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).

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. 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, 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...