Jones v. Coty Inc.

362 F.Supp.3d 1182

Shamika JONES, on Behalf of Herself and All Others Similarly Situated, et al., Plaintiffs,

v.COTY INC., et al., Defendants.

CIVIL ACTION 16-0622-WS-B

United States District Court, S.D. Alabama, Southern Division.

Signed September 14, 2018

Joseph L. Tucker, K. Stephen Jackson, Jackson & Tucker, P.C., W. Lewis Garrison, Jr., Brandy Lee Robertson, Heninger Garrison Davis LLC, Birmingham, AL, for Plaintiffs.

Jeffrey B. Cannon, Jr., Huie Fernambucq & Stewart, LLP, Walter J. Price, III, Hugh Cannon Lawley, Clark, May, Price, Lawley, Duncan & Paul, LLC, Birmingham, AL, for Defendants.

ORDER

WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on a host of intertwined, overlapping and often repetitive motions, to-wit: defendants' Motion for Dismissal and/or for Summary Judgment on Certain Class Claims (doc. 136), Motion for Summary Judgment on Claims of Breonna Franks (doc. 139), Motion for Summary Judgment on Claims of Tara Taylor (doc. 140), Motion for Summary Judgment on Claims of Diane Bowden (doc. 141), Motion for Summary Judgment on Claims of Carrie Bowens (doc. 142), Motion to Strike "Expert Opinions" (doc. 157), and Motion to Strike Select Portions of Plaintiffs' Opposition (doc. 158).¹ The parties have been afforded a full opportunity to be heard on each of these Motions. In the interests of efficiency and judicial economy, all such Motions are adjudicated via this omnibus Order.

I. Nature of the Case.

This matter consists of multiple consolidated putative class action complaints purporting to assert claims for damages and equitable remedies arising from plaintiffs' use of a hair coloring product, Clairol Balsam Color (the "Product"). The four named plaintiffs whose claims are presently in play are Breonna Franks, Tara Taylor, Diane Bowden, and Carrie Bowens, all of whom are represented by the same or substantially the same counsel. Each plaintiff alleges that she sustained physical injuries (such as itching and burning of the scalp, hair loss and hair damage) arising from her use of the Product. On that basis, each plaintiff asserts substantially similar claims, including causes of action for unjust enrichment, violation of the Magnuson-Moss Warranty Act, breach of express warranty, breach of implied warranty, fraud, and negligent design/failure to warn. Certain plaintiffs also bring claims for violation of the Alabama Deceptive Trade Practices Act. Named defendants include Coty Inc., The Procter & Gamble Company, The Procter & Gamble Manufacturing Company, Inc., The Proctor & Gamble Distributing, L.L.C. and Procter & Gamble Hair Care, L.L.C., each of which is alleged to have had some role in developing, designing, manufacturing, packaging, labeling, distributing and/or selling the Product.

II. Background Facts.²

A. The Product and its Packaging.

The packaging of the Clairol Balsam Color hair dye product that plaintiffs used is significant to the claims and defenses presented here. The box in which the Product was distributed and marketed for retail sale contained various instructions, warnings and disclosures, including the following: (i) on the box top, a warning stating "CAN CAUSE ALLERGIC REACTIONS FOLLOW THE SAFETY WARNINGS;" (ii) on the top flap of the box, an instruction to "FOLLOW SAFETY WARNINGS, PERFORM THE SKIN ALLERGY TEST 48 HOURS BEFORE COLORING;" (iii) on the side of the box, under the heading "IMPORTANT SAFETY WARNINGS," statements that "HAIR CARE PRODUCTS MAY CAUSE ALLERGIC REACTIONS, WHICH IN RARE CASES CAN BE SEVERE," that "TATTOOS MAY INCREASE THE RISK OF ALLERGY TO THIS PRODUCT," and that the user should "CONDUCT A SKIN ALLERGY TEST 48 HOURS PRIOR TO EACH APPLICATION, EVEN IF YOU HAVE ALREADY USED COLORING PRODUCTS BEFORE," as well as an instruction "DO NOT USE THIS PRODUCT IF YOU HAVE EXPERIENCED ANY REACTION TO HAIR COLOR PRODUCTS OR HAVE SENSITIVE, IRRITATED OR DAMAGED SCALP;" (iv) on the side of the box, a directive to "READ AND FOLLOW INSTRUCTIONS CAREFULLY;" and (v) on the side of the box, a statement reading "CAUTION: THIS PRODUCT CONTAINS INGREDIENTS THAT MAY CAUSE SKIN IRRITATION ON CERTAIN INDIVIDUALS AND A PRELIMINARY TEST ACCORDING TO ACCOMPANYING DIRECTIONS SHOULD FIRST BE MADE." (Doc. 137, Exh. B.)³ The outside of the box also contained a section with the heading "Questions?" along with a telephone number, website, and mailing address for "the Expert Color Consultants." (Id. )

Inside the box, the consumer would find a bottle of Developing Lotion, a bottle of Permanent Color, a pair of disposable gloves, and a leaflet. (Doc. 137, Exh. C, D, E.) The leaflet enumerated the steps for application and use of the Product in "an easy coloring experience." More importantly, for purposes of this litigation, the leaflet contained safety information and instructions as to the proper use of the Product. Under the heading "IMPORTANT: SAFETY INSTRUCTIONS," the leaflet repeated the warnings from the box that hair colorants can cause allergic reactions, which may be severe; that tattoos may increase the risk of allergy to the Product; that the consumer should not use the Product if she had experienced any reaction to hair color products or had a sensitive scalp; and that a skin allergy test must be conducted 48 hours prior to each application. (Doc. 137, Exh. C.) The leaflet also contained detailed "SKIN ALLERGY TEST INSTRUCTIONS," which involved placing a small amount of Product in the bend of one's elbow and leaving it there for 48 hours to see if any adverse reaction occurs, along with a directive that "IF A RASH, REDNESS, BURNING OR ITCHING DOES OCCUR YOU MAY BE ALLERGIC. STOP. YOU MUST NOT USE THIS PRODUCT." (Id. ) Elsewhere, the leaflet directed consumers to "rinse immediately and discontinue use" in case of any stinging, burning or rash during the coloring process; instructed them "DO NOT color your hair again before consulting a doctor;" and advised them to "SEEK IMMEDIATE MEDICAL ATTENTION" in the event of rapidly spreading skin rash, swelling to the eyes or face, blistering, and/or skin or scalp weeping. (Id. )

The bottle of Permanent Color also contained a prominent warning on the label. That warning stated as follows: "CAUTION: THIS PRODUCT CONTAINS INGREDIENTS WHICH MAY CAUSE SKIN IRRITATION ON CERTAIN INDIVIDUALS AND A PRELIMINARY TEST ACCORDING TO ACCOMPANYING DIRECTIONS SHOULD FIRST BE MADE." (Doc. 137, Exh. E.)

B. Plaintiff-Specific Facts Regarding Product Use and Injuries.

Plaintiff Breonna Franks first used the Product in 2013, when a high-school classmate told her about it. (Franks Dep. (doc. 139, Exh. A), at 52-54.) Franks testified that she read the "Important Safety Warnings" portion of the box before purchasing the Product at a Walmart in Mississippi. (Id. at 58-59.) Franks did not attempt to perform the skin allergy test because she "didn't know how to do it;" however, Franks failed to make any telephone calls to defendants or anyone else to inquire about it or otherwise to seek help. (Id. at 57-60.) The first time Franks used the Product, "it just started burning real bad, the back of my head," so she washed it out because she "couldn't wait no longer." (Id. at 60.) Two weeks later, Franks noticed that her hair was falling out when she combed it or ran her hands through it. (Id. at 60-61.) Despite this adverse reaction, Franks continued to use the Product every four to six weeks when "the color was leaving out of" her hair. (Id. at 42-43.) Each time she used the Product, Franks experienced itching and burning of her skin, and her hair falling out. (Id. at 43-44.) Nonetheless, she continued to apply the Product and did not consult a doctor. (Id. at 44.) Franks never attempted to perform the skin allergy test described on the box and leaflet. (Id. at 56.) She has never received medical treatment for alleged injuries sustained through her use of the Product. (Doc. 139, Exh. G.) And she has received treatment for alopecia (hair loss) from a dermatologist dating back as far as 2012, with her treating physician opining in 2015 that her alopecia was the result of braiding her hair too tightly. (Franks Dep., at 25-37.)

Plaintiff Tara Taylor has been using hair coloring products twice per year for more than 20 years, but was originally using a non-Clairol product that never gave her problems or caused reactions. (Taylor Dep. (doc. 140, Exh. A), at 9-11.) At some indeterminate point, she switched to using the Product. (Id. ) Taylor had a reaction to an unknown hair coloring product approximately three years ago, when she experienced swelling in her lymph nodes for two days. (Id. at 11-12.) When using hair coloring products, Taylor always tests them by placing some of the product on her wrist for an hour to see if anything happens; however, those tests never yielded any positive indication of allergic reaction. (Id. at 13-15.) Taylor purchased the Product from a Family Dollar store in Louisiana on or about October 18, 2016. (Id. at 34-36.) Taylor had used the Product before, and had previously read the warnings and instructions on the box. (Id. at 24, 26.) She has tattoos, and was aware of the warning on the box that tattoos could increase the risk of allergy from use of the Product. (Id. at 27.) Taylor applied the Product on October 19, 2016, after performing a skin test as previously described. (Id. at 37.) The following day, Taylor's head began itching and she developed blisters and weeping sores. (Id. at 38.) On the morning of October 21, 2016, Taylor awakened to discover that one side of her face was swollen. (Id. at 39.) By the time she reached the emergency room that day, her condition had worsened to the point where her eyes were swollen shut. (Id. ) On October 22, 2016, Taylor returned to the emergency room for treatment of the painful swelling on her face. (Id. at 44.) During these visits, Taylor was diagnosed with contact dermatitis and tinea capitis, which is ringworm of the scalp. (Richardson Dep. (doc. 140, Exh. G), at 13,...