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Maria Moore v. P&G-Clairol

March 18, 2011

MARIA MOORE, PLAINTIFF,
v.
P&G-CLAIROL, INC., AND THE PROCTOR & GAMBLE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Maria Moore ("Moore") brought this product liability action against P&G-Clairol Inc. ("Clairol"), alleging that she had a severe allergic reaction to Clairol hair dye. Clairol has filed a combined motion to exclude Moore's expert under the principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and for summary judgment (Doc. 62). Clairol asserts that the expert's testimony is not admissible because he is not qualified to opine the dye is unreasonably dangerous and that Clairol's warnings were inadequate, and his methods in reaching those conclusions were unreliable. According to Clairol, if Moore's expert's testimony is excluded, Clairol is entitled to summary judgment because Moore cannot show a causal link between the injury and the alleged defect in the dye. For the reasons detailed below, the Court grants Clairol's motion to exclude Moore's expert and enters summary judgment for Clairol.

I. STATEMENT OF UNDISPUTED FACTS

A. Moore's Purchase and Application of the Dye and the Dye's Instructions.

Moore, a 17-year old student, purchased a box of Clairol Natural Instincts hair color, shade No. 36 ("the dye"), on March 2, 2007 at 5:07pm. (Pl. 56.1 Resp. ¶ 5; Moore Dep., Pl. Ex. A at 5.) The outer packaging of the dye had a warning that stated, in part:

IMPORTANT SAFETY WARNINGS HAIRCOLOR PRODUCTS CAN CAUSE ALLERGIC REACTIONS WHICH IN RARE CASES CAN BE SEVERE TATTOOS MAY INCREASE YOUR RISK OF ALLERGY TO THIS PRODUCT. CONDUCT A SKIN ALLERGY TEST 48 HOURS BEFORE EACH TIME YOU COLOR EVEN IF YOU HAVE ALREADY USED COLORING PRODUCTS BEFORE. SO REMEMBER TO BUY THE PRODUCT 48 HOURS IN ADVANCE. (Pl. 56.1 Resp. ¶ 8; Def. 56.1 Ex. 8, emphasis in original). The packaging also states: "THIS PRODUCT CONTAINS INGREDIENTS WHICH MAY CAUSE SKIN IRRITATION ON CERTAIN INDIVIDUALS AND A PRELIMINARY TEST ACCORDING TO ACCOMPANYING DIRECTIONS SHOULD FIRST BE MADE." (Pl. 56.1 Resp. ¶ 8, emphasis in original.) The inner packaging contained the following warnings:

* Do the STRAND TEST to determine your optimal coloring time. BEFORE YOU COLOR: 48 HOURS IN ADVANCE

* Take the ALLERGY TEST.

* Read the entire instruction leaflet before you begin.

IMPORTANT: SAFETY INSTRUCTIONS HAIR COLORANTS CAN CAUSE ALLERGIC REACTIONS WHICH IN RARE INSTANCES CAN BE SEVERE. TATTOOS MAY INCREASE YOUR RISK OF ALLERGY, TO REDUCE YOUR RISK FOLLOW THESE INSTRUCTIONS:

1. DO NOT USE THIS PRODUCT AT ALL IF:

* You have already experienced any reaction to coloring products.

* You have sensitive irritated or damaged scalp.

In these cases do not conduct the skin allergy test and consult a doctor before using any haircolor product.

NEED ADVICE? Call the Expert Color Consultants at 1-800-CLAIROL (1-800-252-4765)

2. PERFORM SKIN ALLERGY TEST 48 HOURS BEFORE EACH PRODUCT USE even if you have already used coloring products before.

SKIN ALLERGY TEST INSTRUCTIONS MUST BE PERFORMED 48 HOURS BEFORE YOU COLOR YOUR HAIR: You will need a cotton ball or swab, a plastic bowl and a plastic spoon.

1. To open, unscrew the entire Gentle Activating Creme cap (Bottle #2). Don't pull off the tab. Then unscrew the Color-Enhancing Colorant (Bottle #1).

2. Mix small equal parts of the Color-Enhancing Colorant and Gentle Activating Creme in a plastic bowl.

3. Tightly recap both bottles.

4. Apply mixture to a test area the size of a quarter in the bend of your elbow. Allow to dry. Use remaining mixture for the Strand Test. During washing, protect with an adhesive bandage and remove it immediately after washing.

5. Examine the test area during the next 48 hours. If no reaction occurs, you are ready to color.

The absence of reaction to this test is no guarantee that an allergic reaction may not occur as a result of a future haircoloring process. However, this ...


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