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Presbrey v. Gillette Co.

OPINION FILED MAY 5, 1982.

THOMAS G. PRESBREY, PLAINTIFF-APPELLEE,

v.

THE GILLETTE COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN A. LEIFHEIT, Judge, presiding.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

A judgment in the amount of $23,750 was entered on a jury verdict in favor of Thomas G. Presbrey, the plaintiff, based upon his complaint that the use of Gillette Right Guard Extra Strength Anti-Perspirant caused a severe, persistent welting under his arms and on his chest together with a permanent inability to use all effective antiperspirants without a similar reaction. On appeal the defendant, The Gillette Company, contends that the judgment was against the manifest weight of the evidence, that prejudicial and reversible error prevented a fair trial, that verdicts should have been directed and alternatively that the verdict was excessive.

The plaintiff charged negligence in failure to sufficiently test the product, to warn of inherent dangers and to list and warn of the dangerous contents. There were additional counts based upon the theories of breach of express warranty and products liability. Essentially, the plaintiff's case relied upon the testimony of Dr. Bernard Szuhaj, a biochemist, who concluded that plaintiff became permanently sensitive to products containing aluminum complexes similar to the aluminum zirconium complex (which the Extra Strength Right Guard contained) as a result of inhaling particles of the defendant's aerosol spray product which created a systemic antigen-antibody reaction.

Dr. Bernard Szuhaj testified as a nontreating expert for the plaintiff. Before trial, Dr. Szuhaj was provided with certain documents from Gillette, the proposed regulation and the F.D.A.'s final ruling in the Federal Register, the formulation of aluminum-zirconyl hydroxychloride complex, particle size studies and defendant's Zirconium Anti-Perspirant. He testified that he had read the particle size studies which found that 40% of the particles were below two microns; he said further, however, that according to certain calculations, that 72% of the particles were under 5 microns, small enough to be trapped by the cilia (protective hairs) which line the upper respiratory tract, thereby allowing the particles to penetrate more deeply into the lungs.

Dr. Szuhaj said that from inhaling these particles one could sustain an antigen-antibody reaction. An antigen is the invading, foreign matter; an antibody is produced by white blood cells as part of the immune response system to neutralize the antigen. The antibody couples with the antigen and covers it with a protective coating so that it can no longer irritate. As coupling occurs, a special chemical, histamine, is released as a consequence of which fluid enters the cells. The process surfaces finally in a welt or raised lesion.

On direct examination Dr. Szuhaj gave the opinion that the aluminum zirconium chloride complex was the operative antigen, without disclosing the basis for his opinion; on cross-examination, however, he said that he based his opinion on the results of a 90-day subacute inhalation test which Gillette had conducted on cynomolgus monkeys. It takes a repeated invasion of the aluminum zirconium chloride complex to build up a sensitivity reaction.

Dr. Szuhaj rendered his opinion based upon a hypothetical which contained the following facts as to which there was testimony in the record. A 15-year-old male with no previous allergies or other skin sensitivity had been using Right Guard Deodorant (brown can), and Right Guard Anti-Perspirant (silver can), on a daily basis since he was 12 years old without incident. In September 1973, he began using Gillette Anti-Perspirant Aerosol Spray (white can). After 2 1/2 weeks' use on a daily basis he developed a severe itching, red, raw, welting irritation, not only in the axilla area, but down either arm and down both sides. He stopped using the product for one week and the condition gradually healed. Within 24 hours of his using the product again, the same condition of welting, redness and soreness occurred and upon cessation of use the healing occurred in the following week or so.

Over objection the witness gave his opinion:

"[T]hat the Zirconium-Aluminum Complex that we are looking at today is probable in the cause of the reaction that the 15-year-old individual found at that time. That's based on the immune response, the mechanism involved and detoxifying. * * *."

In the form of a hypothetical question, Dr. Szuhaj was asked to assume the following facts and then give his opinion to a reasonable degree of scientific certainty as to the cause of bronchiolitis in monkeys who were tested by Gillette in October of 1973 with aluminum zirconyl hydroxychloride complex (AZAP-74-30):

"(1) Six cynomolgus monkeys have been submitted to subacute inhalation testing for a ninety-day period.

(2) At the end of the ninety-day period, the monkeys were sacrificed and microscopic pictures were taken of sections of their lungs.

(3) The anti-perspirant contained particles, approximately 72% of which were under the five micron level.

(4) At the end of the ninety-day period, bronchiolitis was observed in the lungs."

Dr. Szuhaj was allowed to answer over objection that, based on the materials provided him through discovery, his expertise, and the professional literature on which he relied, that the lung inflammation indicated that "the immune process has already begun." Based on Gillette's test results, it was Szuhaj's opinion that there should have been further testing "to explore the possibility of sensitizing human subjects." He then stated that the same kind of sensitizing occurs in humans as occurred in the test monkeys. The antigen antibody reaction and later immunization is permanent and systemic — meaning that the antibodies circulate throughout the body. Significantly, this results in a raised lesion at the entry or the contact site of the antigen. He added that there is "more sensitizing" if the antigen is introduced topically.

Dr. Szuhaj was then asked to assume the additional facts that after the second eruption the individual used the Right Guard Anti-Perspirant in the silver can and the same eruption as from the white can occurred within 24 hours; then he used the deodorant in the brown can and encountered the same reaction. Asked whether within a reasonable degree of scientific certainty the use of the spray in the white can could be a causative factor of the new sensitivity to the other products and the subsequent eruptions, the witness answered "it is possible for this to be carried over to the other types of anti-perspirants, simply because we were talking initially about Aluminum-Zirconium. And the presence of Aluminum is the basis for other anti-perspirants. And Aluminum Complexes can also occur very similar to what we talked about with Zirconium."

On cross-examination Dr. Szuhaj testified that the presence of lesions in the plaintiff's lung could be verified only by an internal inspection through a "laparoscopic [sic] *fn1" examination, which was never performed on the plaintiff. Significantly, he explained that other people might not exhibit the plaintiff's sensitivity, because their production of antibodies upon the introduction of the antigens might not be high enough to elicit a response. Dr. Szuhaj testified that his opinion of etiology would not change if a patch test with a 20% solution of aluminum chlorhydrate was performed on the plaintiff and he exhibited a negative reaction; but he did not explain. He characterized his testimony on causation as "theory" or "hypothesis." He acknowledged that he had no formal training in dermatology or toxicology, and that he had never actually examined the plaintiff.

The trial court denied the defendant's later motion to strike Dr. Szuhaj's testimony.

Dr. Abraham Koransky, a dermatologist, performed various patch tests on the plaintiff. From the single patch test which he conducted on August 16, 1976, Dr. Koransky concluded that the plaintiff was permanently sensitive to an ingredient in Gillette's Extra Strength Anti-Perspirant. Dr. Koransky could not determine the sensitizing ingredient, nor could he determine from one patch test whether the plaintiff was permanently sensitive to other similar preparations.

On June 24, 1980, Dr. Koransky conducted six patch tests, the results of which are set forth below:

Product Result

Right Guard Deodorant 4 (brown can) (def.'s exhibit No. 4)

Right Guard Anti-Perspirant 1 (silver can) ...


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