JR Watkins Co. v. Raymond

• Citation: 184 F.2d 925
• Decision Date: 08 December 1950
• Docket Number: No. 14150.,14150.
• Parties: J. R. WATKINS CO. v. RAYMOND.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

184 F.2d 925 (1950)

J. R. WATKINS CO. v. RAYMOND.

No. 14150.

United States Court of Appeals Eighth Circuit.

November 13, 1950.

Rehearing Denied December 8, 1950.

Patrick J. Ryan, St. Paul, Minn. (John J. Sexton and Robert J. Tyrrell, St. Paul, Minn., on the brief), for appellant.

Eugene A. Rerat, Minneapolis, Minn. (Frank L. Brady, Minneapolis, Minn., on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and RIDDICK, Circuit Judges.

GARDNER, Chief Judge.

This was an action brought by appellee against appellant to recover damages for injuries alleged to have been sustained by her by reason of the use and application of Watkins Cocoanut Oil Shampoo which it was admitted was manufactured by the appellant J. R. Watkins Company. Plaintiff, a married woman, 49 years of age, in December, 1947, procured a bottle of Watkins Cocoanut Oil Shampoo. A friend who had been a beauty parlor operator and who had previously shampooed plaintiff's hair, shampooed her hair by applying part of the contents of the bottle of shampoo to plaintiff's hair. Following the completion of the shampoo plaintiff had a sensation of burning on the forehead and scalp and itching of the scalp. The scalp was red and itched for several days, following which plaintiff's hair started to come out at each combing, and by April, 1948, it was practically all gone. Later she lost her eyebrows and eyelashes. About a year later she lost all of the hair over her entire body. Prior to December, 1947, she had had a luxuriant growth of hair. It was her custom to shampoo her hair every two or three weeks, which custom she had followed for a long period of time.

It was alleged by plaintiff that it was represented by defendant that this shampoo had been compounded from pure ingredients of superior merit and quality; that it was free from deleterious, poisonous, infectious, or harmful materials, and wholly adapted to improve the user's hair and to give vigor, luster and tone to the hair and scalp of the user, but that contrary to these representations the shampoo used by plaintiff was carelessly, negligently and improperly compounded by defendant and contained poisonous, infectious, injurious and deleterious materials and chemicals, causing it to be imminently dangerous and harmful to health. The contents of the bottle of shampoo were not all used. Dr. Howard, a specialist in dermatology, examined plaintiff in June, 1948, and based on his examination and the history of the case, testified that in his opinion the loss of plaintiff's hair, eyelashes and eyebrows was due to the shampoo which plaintiff used in December, 1947. Part of the contents of this bottle of shampoo was analyzed by Dr. Hervey H. Barber, a chemist at the University of Minnesota, the analysis being made for the purpose of determining the alkalinity of the contents of the bottle of shampoo. Being called as a witness for plaintiff, he testified that every soap had to have an alkaline base; that to have a usable soap there must be what is referred to as a "pH", of 7 or more, and that soaps in general vary from 8 to 12; that if a soap contained a pH of 10.5 he would not be afraid to use it; that the pH in the bottle of shampoo submitted by plaintiff was 10.2. There was testimony by another chemist called as a witness for plaintiff to the effect that any soap having anything below 12 or 13 pH was a perfectly safe soap or shampoo.

At the trial Dr. Ryerson, head of the Department of Chemistry of the University of Minnesota, called as a witness for defendant, in open court made a test of the remainder of the shampoo contained in the bottle of shampoo produced by plaintiff as having been the shampoo used by her. This test showed a pH of 9.5, "almost 9.6." There was testimony that the burning, itching and irritation of the scalp described by plaintiff might have been caused by the rubbing incident to the giving of the shampoo, and that it might have been caused by "the mechanics as well as the chemical." Defendant called a number of other experts, among them Dr. Paul A. O'Leary, associated with the Mayo Clinic since 1917 and head of the Department of Dermatology since 1924, who had had experience with some 300 people who had alopecia; Dr. Francis E. Senear, a specialist in dermatology and head of the Department of Dermatology at the University of Illinois, College of Medicine; and Dr. Henry Michelson, a specialist in dermatology and Director of the Division of Dermatology at the University of Minnesota. All of these witnesses stated their positive opinion that plaintiff's condition as described by her was not and could not have been caused by defendant's shampoo or by any chemical externally applied to the human scalp. Dr. O'Leary who had examined plaintiff said that alopecia totalis was a disease and that plaintiff's condition as described by her "was the normal course of events in an individual who is developing total alopecia." Other facts will be developed in the course of this opinion.

At the close of all the testimony defendant moved for a directed verdict which motion was denied and the case was submitted to the jury on instructions to which defendant saved certain exceptions. The jury returned a verdict in favor of the plaintiff for $27,000.00. Defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial, which motion was denied and judgment entered pursuant to the verdict. Defendant seeks reversal on substantially the following grounds: (1) the court erred in denying defendant's motion for a directed verdict and its motion for judgment notwithstanding the verdict; (2) the court improperly permitted Mrs. Petrus to testify that at least a year before plaintiff's injury she used a bottle of defendant's shampoo and suffered loss of hair; (3) the court erred in charging the jury that the evidence given by the expert witnesses who testified upon the trial might be disregarded.

In considering the question of the sufficiency of the evidence we must view the evidence in a light most favorable to the plaintiff and to assume as proved all facts which the testimony reasonably tended to prove. Duncan v. Montgomery Ward & Co., 8 Cir., 108 F.2d 848; Asher v. United States, 8 Cir., 63 F.2d 20. There must, however, be substantial evidence to warrant the submission of the issue to the jury and the trial court can not properly submit an issue to the jury on a mere scintilla of evidence. The question as to whether or not the evidence is substantial is one of law to be determined by the court. Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Simkins Federal Practice, 3rd Ed., Sec. 626.

In reviewing the testimony it is necessary to consider what plaintiff was required to prove in order to entitle her to recover. We turn first to the allegations of plaintiff's complaint. She alleged that the defendant represented that its product was compounded "from pure ingredients and as being of superior merit and quality and as being free from deleterious, poisonous, infectious, or harmful materials, and wholly adapted to improve the user's hair * * *", and she also alleged that the shampoo which she used "contained poisonous, infectious, injurious and deleterious materials and chemicals." In submitting this vital issue the court in its instructions among other things charged the jury that, "The burden rests upon the plaintiff to further establish by a fair preponderance of the evidence the following points: That she used Watkins Cocoanut Oil Shampoo according to directions furnished by the defendant; that this shampoo contained deleterious or poisonous material or substances in dangerous quantities; that this latter fact was unknown to her and that as a direct and proximate result of the use of this product she suffered damages."

The court then specified certain elements which must be found by the jury in order to entitle plaintiff to a verdict. Among these was the following: "That the shampoo contained dangerous ingredients in quantities likely to produce injury."

In the final analysis the verdict rests upon the testimony of the plaintiff that she used the defendant's shampoo, that immediately her scalp became red, itchy and irritated, that shortly thereafter her hair began to fall out, that the hair from her scalp, her eyebrows and eyelashes disappeared, and that after about a year the hair from her entire body fell out, and the testimony of Dr. Howard.

We have heretofore referred generally to the testimony of Dr. Howard but we think it requires further analysis. He based his opinion that the shampoo caused plaintiff to lose her hair solely upon the facts that plaintiff used the shampoo and later lost her hair. This, of course, added but little to the testimony of plaintiff. Among other things he testified as follows:

"Q. So that if Mrs. Raymond came to you and exhibited her scalp showing no hair on it and without saying anything more to you said, `Now in your opinion what caused that?' — you wouldn't be able to give her any answer, would you? A. That is right.

"Q. And by the same token if she told you that she had used a shampoo and it was established that the amount of alkali in that shampoo was one-twentieth of normal, then by the same reasoning you would conclude that that shampoo was what caused...