Miller v. Coty, Inc.

MAY MILLER and TIMOTHY MILLER PLAINTIFFS v. COTY, INC. and COTY US, LLC DEFENDANTS

CIVIL ACTION NO. 3:14-cv-00443-CRS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE

March 21, 2018

MEMORANDUM OPINION

This matter is before the court on motion of the Defendants, Coty, Inc. and Coty, US, LLC (collectively, "Coty"), for summary judgment. The Defendants also move for exclusion of expert testimony. For the reasons stated herein, the court will GRANT IN PART and DENY IN PART the Defendants' motion to exclude expert testimony. The court likewise will GRANT IN PART and DENY IN PART the Defendants' motion for summary judgment.

I. BACKGROUND

This case arises from an injury sustained while using an at-home hair-removal waxing kit. In May of 2013, Timothy Miller ("Timothy") purchased a "Sally Hansen Extra Strength All-Over Body Wax Kit" ("Product"), a product acquired by Coty in 2008, from a retail store for $9.98. (DN 53, Exh. 1.) Timothy alleges that he purchased the Product for his wife, Plaintiff May Miller ("May"), to be used on her "pubic area"¹ after discussing the topic of waxing. (Id. at 7.) Neither Plaintiff researched waxing kits prior to purchasing the Product. (Id. at 8.) Mayclaims that she had previously purchased waxing kits for her eyebrows and legs but could not recall the specific brand or product that she used. (Id. at Exh. 2, 19.)

The Plaintiffs decided to use the waxing kit at home later that month. (Id. at Exh. 2, 23.) Both Millers testified to reading the instruction sheet included inside the Product box. (Id. at Exh. 1, Exh. 2, 24.) May claims to have read the instructions once, while Timothy alleges that he read the entire instruction sheet twice, once earlier in the evening and once immediately prior to using the Product. (Id. at Exh. 1, 10.) Timothy also claims that he watched two online videos demonstrating the general use of home-waxing kits. (Id. at 1.) The videos were not produced or approved by Coty and Timothy could not recall the brand or type of wax used in these videos. (Id.) However, Timothy claims that both videos demonstrated how to wax the "pubic area" of a woman, generally. (Id.)

Timothy prepared the wax by melting it on high in the microwave per the instructions and prepared the waxing strips by cutting them into smaller pieces. (Id. at 14 - 15.) May lay flat on her back while Timothy applied the wax. (Id. at 15.) He maintains that he began applying the wax on the outer edge of May's hair line in the "pubic area" on the right side of her body. (Id.) He alleges that he applied the wax with a spatula in one to two inch strips in the direction of the hair growth. (Id. at 16.) Then he pressed a strip onto the applied wax, rubbing the strip with pressure a couple of times with his finger. (Id.) He claims that he held the skin taut while quickly pulling in the opposite direction of the hair growth, keeping his hand close to her body as the instructions indicated. (Id.)

According to the Millers, Timothy managed to successfully wax several portions of hair off May's body in the "pubic area." (Id. at 17.) The injury occurred while Timothy was waxing a section of hair on May's left labia majora. Timothy explained that he applied the wax to May'sleft labia majora, held the skin taut, and pulled the strip. (Id. at 16 - 18.) As he pulled the strip, the skin on May's labia majora tore. (Id. at 18.) May testified that the strip of skin that tore was adjacent to the area that was actually waxed, rather than the skin directly under the waxing strip. (DN 53, Exh. 2, 28 -29.)

"Almost immediately" after the tear occurred, the Millers went to the Emergency Room to have May's injury treated. (Id. at 40.) While there, May received sutures, antibiotics, and pain medication. (Id. at 41.) Immediately following the injury, May experienced bruising and swelling around the injury site. (Id.) May claims that she experiences numbness and lasting pain, including a "burning sensation" in the area surrounding the injury. (Id. at 47.) May further states that she has an approximately three and a half inch scar on her labia majora with several areas of puckering and an extra fold of skin. (Id. at 52.)

There is no dispute that the Millers read the Product packaging and instructions, including the Product warnings. There is also no dispute as to the specific language used in the instructions and warning. The front of the box states the following: "Extra Strength All-Over Body Wax Kit;" "Brazilian Formula Removes Hard to Remove Hair;" "Smart Wax Grabs Hair, Not Skin." (DN 53, Exh. 4.) The back of the box additionally states: "Eliminates Even the Most Stubborn, Unwanted Hair" and "Great for Body, Legs, Arms, Bikini and More." (Id.) The side of the box includes this language: "IMPORTANT: Read and follow enclosed directions and cautions carefully before proceeding." (Id.)

An instruction sheet was contained inside the packaging. The instruction sheet states that the product is "Perfect For: Body, Arms, Bikini Area, Legs, Underarms, and More!" (DN 53, Exh. 3.) It also warns: "PLEASE READ THIS INTRUCTION BOOKLET CAREFULLY BEFORE PROCEEDING WITH TREATMENT. FAILURE TO FOLLOW WARNINGS AND

INSTRUCTIONS MAY RESULT IN SEVERE SKIN IRRITATION, SKIN REMOVAL OR OTHER INJURY." (Id.)

The instruction sheet contains a section entitled "CAUTION." (Id.) One of the bullet points in this section states the following: "DO NOT use on irritated, chapped, sunburned or cut skin, over moles or warts, or after a hot bath. NEVER use on nipples, perianal, vaginal/genital areas, or on hairs inside nostrils, ears or on eyelids/eyelashes." (Id.)

Lastly, the instruction sheet contains "TIPS" for certain areas of the body. (Id.) For the "BIKINI LINE" area, the tips suggest to "Always hold skin taut. Work in small areas from the outer bikini line to the inner bikini line." (Id.) Next to the tips, there is a small, simple line drawing of a female torso and thighs with the pubic area covered by a bikini. (Id.) The words "Apply" and "Remove" are accompanied by arrows and the hand of the figure appears to be waxing a portion of the upper thigh. (Id.) No additional warnings are given in this section.

According to the Millers, they believe that they followed all of the directions in applying the wax. May testified that she believes the "bikini area," as stated on the Product packaging and in the instructions, to be anywhere hair could potentially show while wearing a bikini, including portions of the labia majora. (DN 53, Exh. 2, 35 - 36.) May stated that, depending on the bikini's style, and taking in consideration the shifting of fabric, outer portions of the labia majora could be exposed in a bikini. (Id.) When May read the section of the instructions warning consumers never to use the Product on "vaginal/genital areas," she did not believe that this included the portions of the labia majora that could potentially be exposed in a bikini. (Id.)

Based upon these facts, the Millers bring claims against Coty under Kentucky's laws of products liability, breach of warranty, and consumer protection. Additionally, the Millers seekloss of consortium and punitive damages. Coty now moves for summary judgment on each count of the Amended Complaint.

II. STANDARD

A party moving for summary judgment must show 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). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Additionally, the Court must draw all factual inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine issue for trial exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986).

III. DISCUSSION

Plaintiffs' Amended Complaint contains the following counts: Strict Liability; Negligence; Failure to Warn; Breach of Implied Warranty of Merchantability; Breach of Express Warranty; Breach of Implied Warranty of Fitness for a Particular Purpose; violation of Kentucky's Consumer Protection Act; Loss of Consortium; and Punitive Damages. The Defendants move for summary judgment on each of the counts. The court will first address the Defendants' Motion to Exclude Plaintiffs' Expert Testimony (DN 54), as the use and scope of the testimony is essential to the resolution of the case.²

A. Expert Testimony

The Plaintiffs offer the testimony of three experts in support of their claims. Carol Pollack-Nelson, Ph.D. ("Dr. Pollack-Nelson"), is offered as a human factors expert, William F.Kitzes, J.D. ("Mr. Kitzes"), is offered as a products safety management expert, and Eva Desiree Carden ("Ms. Carden") is offered as an expert on waxing procedures. Coty seeks to exclude each of the three experts' testimony in their entirety. In the alternative, Coty asks that "the testimony of Dr. Pollack-Nelson and William Kitzes be limited to the subject of the Defendants' product warning label." (DN 54, 12.)

Federal Rule of Evidence 702 outlines the admissibility of expert testimony:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or otherwise specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Courts also may consider the following non-exhaustive factors to assess reliability of expert testimony: (1) whether the theory can be or has been tested; (2) whether the technique or theory has been...