Bathory v. Procter & Gamble Distributing Company

• Decision Date: 26 June 1962
• Docket Number: No. 14511-14512.,14511-14512.
• Citation: 306 F.2d 22
• Parties: Hazel BATHORY, Plaintiff-Appellee, v. The PROCTER & GAMBLE DISTRIBUTING COMPANY, Defendant-Appellant. Hazel BATHORY, Plaintiff-Cross Appellant, v. The PROCTER & GAMBLE DISTRIBUTING COMPANY, Defendant-Cross Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

306 F.2d 22 (1962)

Hazel BATHORY, Plaintiff-Appellee, v. The PROCTER & GAMBLE DISTRIBUTING COMPANY, Defendant-Appellant.

Hazel BATHORY, Plaintiff-Cross Appellant, v. The PROCTER & GAMBLE DISTRIBUTING COMPANY, Defendant-Cross Appellee.

Nos. 14511-14512.

United States Court of Appeals Sixth Circuit.

June 26, 1962.

Judson L. Levin and Saul M. Leach, Detroit, Mich., for Hazel Bathory.

G. Cameron Buchanan, Detroit, Mich. (William L. Blum, Thomas S. Calder, Cincinnati, Ohio, on the brief), for Procter & Gamble Distributing Co.

Before MILLER, Chief Judge, and O'SULLIVAN, Circuit Judge.

O'SULLIVAN, Circuit Judge.

In the United States District Court at Detroit, plaintiff-appellee, Hazel Bathory, obtained a $5,000.00 jury verdict for injuries which she claims she suffered from using a permanent wave lotion called Pin-It, distributed by defendant-appellant Procter & Gamble Distributing Company. This is a diversity action; Michigan law applies. The complaint, in separate counts, alleged breach of warranty and negligence. The breach of warranty count was dismissed on defendant's motion. The case was submitted to the jury on the negligence count. Defendant appeals from the judgment entered on the verdict. It charges that a verdict should have been directed for it on the grounds, First, that there was not evidence from which the jury could find that plaintiff's use of Pin-It was a proximate cause of her injuries, and Second, that plaintiff's evidence did not make out a jury question as to defendant's negligence.

Defendant rested its case on plaintiff's proofs. Their sufficiency to make out a case is, on this appeal, viewed in the light most favorable to plaintiff-appellee. Pomeroy v. Dykema, 256 Mich. 100, 101, 239 N.W. 342; Sitta v. American Steel and Wire Division of United States Steel Corporation, 254 F. 2d 12, 15 (CA 6, 1958).

Plaintiff, on or about February 1, 1955, purchased the Pin-It preparation from a Michigan retailer who had purchased it from defendant. The product involved was manufactured by the Procter & Gamble Company. Defendant is a wholly owned subsidiary of that company, and acquires and distributes all of Procter & Gamble Company's products under an exclusive franchise agreement. The parent and subsidiary are both Ohio corporations with head offices in Cincinnati, Ohio. Both have the same President.

Shortly after purchasing the accused Pin-It, plaintiff applied it to her hair and scalp, conforming to the directions supplied on the package. These instructions outlined various steps to be taken, such as shampooing and trimming the hair, two applications of the lotion, attaching pins and curlers, and a final rinsing and drying of the hair. These steps were taken at stated intervals and the entire procedure extended over several hours. Immediately upon the first application of the lotion, plaintiff experienced a burning sensation of her scalp. This sensation continued, and increased, during the hours consumed in her observance of the instructions. The last steps were the removal of the pins and curlers and brushing out the hair. When plaintiff did so, the brushing brought about an immediate and substantial loss of hair. For some weeks following plaintiff's use of Pin-It her symptoms persisted — irritation and burning of the scalp, development of red blotches thereon and continued loss of hair. Toward the end of February she consulted her doctor, a general practitioner, who referred her to a dermatologist, Dr. Arthur Schiller. Dr. Schiller first saw plaintiff on February 26, 1955. He did not observe any inflammatory condition of plaintiff's scalp at that time, but from the appearance of glands in her neck concluded that there had been such inflammation. He found serious thinning of the hair which he characterized as a male pattern baldness, "* * * the hair was rather thin. There was a central baldness covering almost the entire vertex. And the hairs in themselves over this area were distinctly thinner than hairs on the back of the head." Doctor Schiller treated plaintiff over a period of months. The record on appeal does not disclose the duration of plaintiff's difficulties or their end result. It is not claimed that the verdict was excessive.

At some time less than ten days after plaintiff used the lotion, she wrote directly to the Procter & Gamble Company advising them of the difficulties that resulted from her use of Pin-It. That company replied, stating that they had had no previous complaints concerning Pin-It. Plaintiff testified that she had never had any previous scalp or other skin trouble and had not experienced any abnormal loss of hair. She had shampooed her hair many times and used various permanent wave lotions without ill effects.

Prior to trial, plaintiff's counsel submitted to the Detroit Testing Laboratories a sample of the Pin-It lotion used by plaintiff. The report obtained from that organization stated that the lotion contained 1.8% thioglycollic acid and 2.5% total alkali as calculated with sodium oxide and a negligible amount of ash. It further stated:

"This laboratory wishes to point out that the amount of thioglycollate present should not ordinarily cause irritation or bad results to the normal individual. However, misuse of the material such as leaving on the hair too long increases the concentration of the thioglycollate so that it may act as a primary irritant. Moreover, there may be an individual involved who happens to have an allergy or sensitivity to this type of material."

Two chemists who had collaborated in making the tests and the above report testified for plaintiff. One of them stated that thioglycollic acid, "has a certain amount of irritant properties"; that this acid has a tendency to decompose to become hydrogen sulfide, "which has irritant properties to it"; that this "thioglycollic acid is an irritant"; that he "would expect thioglycollic acid to have irritant properties"; and "I would expect the total alkali calculated as sodium oxide with a concentration of 2.5% in itself to act as an irritant" and "coupled with the fact that there is a mixture of the total alkali with thioglycollic acid * * * would * * * make this react as an irritant."

The other chemist gave her opinion that "thioglycollic acid is sometimes an irritant to the scalp"; that "2.5% alkali, total alkali, is a rather high content of total alkali and can be very irritating to the skin and scalp of an individual." On cross examination, she said that it was her conclusion "that the thioglycollic acid content present could cause the irritation."

The validity of the opinions of these chemists was weakened and discrepancies therein exposed by cross examination and by the seeming contradiction of their court testimony by what was said in their written report given before trial that, "This laboratory wishes to point out that the amounts of thioglycollate present should not ordinarily cause irritation or bad results to the normal individual." It was for the jury, however, to weigh the evidence, to determine the credibility of these witnesses and to cull the truth out of these seeming contradictions. O'Donnell v. Geneva Metal Wheel Co., 183 F.2d 733 (CA 6, 1950); Dickerson v. Shepard Warner Elevator Co., 287 F.2d 255, 259 (CA 6, 1961); Wilkerson v. McCarthy, 336 U. S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1948).

Plaintiff's witness, the dermatologist, Dr. Arthur Schiller, in answer to a long, hypothetical question, concluded that:

"The fact that, hypothetically, the preparation was used that contained 1.8% thioglycollic acid and 2.5% of alkali, certainly within the bounds of these percentages the hydrogen ion content after it was diluted could readily have been high enough to cause an irritation."

In answer to a question, "Might or could this combination of properties cause a triggering mechanism in a person such as the hypothetical person that I have described to you, to cause her to have an abnormal loss of hair * * * the question is, can this type of an irritant that you have described trigger the mechanism for an abnormal loss of hair over a period of months?" the dermatologist, Dr. Schiller, said, "It would absolutely be possible." He likewise testified, as part of his answer to the hypothetical question, "It is altogether possible for a cold wave to cause an irritation of the scalp" and "I think that almost any type of preparation under certain circumstances could cause loss of hair." Dr. Schiller also testified that a person could experience an increased loss of hair from the use of shampoo, soap or water.

1) Proximate cause. Defendant argues that all of the above evidence does not add up to a case for the jury as to whether Pin-It was a proximate cause of plaintiff's injuries. It places much reliance on our case of Sheptur v. Procter & Gamble Distributing Co., 261 F.2d 221, 79 A.L.R.2d 476 (CA 6, 1958). In that case, we held that a jury could not find that Tide was the cause of a plaintiff's hand dermatitis. There, the plaintiff had been washing dishes in hot water over a period of time with various detergents, including Tide. There was no evidence isolating Tide from other soaps as a possible cause of injury. Such is not the case before us. Although Dr. Schiller said shampoo, hot water and other agencies could cause a loss of hair, the plaintiff here had for many years shampooed her hair and had used various wave lotions without any untoward results. The process which almost immediately caused a burning and irritation of her scalp contained no new element except the use of the Pin-It. There was professional evidence that the chemical content of the lotion was such that it might be the cause of irritation to the scalp. Plaintiff's doctor testified that the lotion could readily cause an irritation, and that it was "absolutely" possible that the lotion could "trigger" an abnormal loss of hair. We think that the total of this evidence and the justifiable inferences that could be drawn...