Braun v. Roux Distributing Co.

• Decision Date: 14 April 1958
• Docket Number: No. 45770,No. 2,45770,2
• Citation: 312 S.W.2d 758
• Parties: Vernell BRAUN, Plaintiff-Respondent, v. ROUX DISTRIBUTING COMPANY, Inc., a Corporation Defendant-Appellant
• Court: Missouri Supreme Court

Page 758

312 S.W.2d 758

Vernell BRAUN, Plaintiff-Respondent, v. ROUX DISTRIBUTING COMPANY, Inc., a Corporation Defendant-Appellant.

No. 45770.

Supreme Court of Missouri, Division No. 2.

April 14, 1958.

Rehearing Denied May 12, 1958.

Rexford H. Caruthers, H. Jackson Daniel, Husch, Eppenberger, Donohue, Elson & Jones, Arthur J. Freund, St. Louis, for plaintiff-respondent.

Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, G. W. Marsalek, St. Louis, William J. Hayes, New York City, of counsel, for defendant-appellant.

BARRETT, Commissioner.

Upon the allegation of negligence in failure to warn of the presence of a toxic ingredient, paraphenylenediamine, in its hair dye, resulting in allergic periarteritis nodosa, the plaintiff, Vernell Braun, has recovered a judgment against the distributor, Roux Distributing Company, in the sum of $85,000.

Mrs. Braun, age 38 in 1956, is a housewife, the mother of two children, ages five and three. She attended a beauty college in 1934 and was an 'all-around' beauty operator for two and one half years, and for about fifteen years operated a power machine in a shoe factory--until her first baby was born. Roux Laboratories, Inc., of New York, manufactures a line of cosmetics distributed by Roux Distributing Company, a company wholly owned by the president of the manufacturing company. Since 1934 they have manufactured and sold Roux Oil Shampoo Tint, a hair dye which contains paraphenylenediamine, a coal-tar derivative. Between 1934 and 1955 they manufactured and distributed in excess of 50 million packages of hair dye, possibly 75 million applications, without, to their knowledge, systemic injury to anyone using the product. Roux Oil Shampoo Tint--paraphenylenediamine hair dye--mixed with an equal amount of 20 volume hydrogen peroxide oxidizes and when applied attaches to the keratin, the constituent chemical basis of hair, and gives color to hair. In another connection it has been said that 95% of all hair dyes contain paraphenylenediamine and that there are approximately 65 million applications of hair dye a year. Phillips v. Roux Laboratories, 286 App.Div. 549, 145 N.Y.S.2d 449. Paraphenylenediamine has been used in industry for years, to dye feathers, fur, wigs and leather.

Roux dye has a paraphenylenediamine chemical content of 0.174% or 1/20 to 2/20 per cent. It was estimated in this case, by a plaintiff's witness, that 3 to 4 per cent of all users of hair dye are allergic or sensitive to it, a defense witness estimated that one in forty or fifty thousand applications resulted in a reaction. In compliance with the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. Sec. 301 et seq., particularly in connection with its misbranding and adulteration provisions, every cosmetic (Byrd v. U. S., 5 Cir., 154 F.2d 62), including Roux Oil Shampoo Tint, contains this warning on the labels, 'Caution--This product contains ingredients which may cause skin irritation on certain individuals and a preliminary test according to accompanying directions should first be made. This product must not be used for dyeing the eyelashes or eyebrows; to do so may cause blindness.' 21 U.S.C.A. Secs. 361-364. One of the defendant's doctors conceded that paraphenylenediamine is a known sensitizer. According to the plaintiff's evidence it is also a toxic substance which after continued use or exposure, depending on the concentration, sensitizes normally healthy people. Or, to put it another way, on the first exposure there may be no reaction but upon subsequent exposures antibodies are built up in the tissues and eventually an exposure produces an allergic reaction. The plaintiff's witnesses, some of them, testified that Mrs. Braun's sensitiveness or allergy to paraphenylenediamine would not have been revealed by the prescribed preliminary patch test.

Periarteritis nodosa is an inflammatory disease of the coats of the small and medium-sized arteries, marked by symptoms of systemic infection. It is a very rare and usually fatal malady. There have been between two and four hundred known instances of the disease since its description or discovery eighty or ninety years ago and, partially because of the difficulty of accurate diagnosis, most of the cases were identified and diagnosed by autopsy. Usually the cause of the disease is unknown, but 'around 1930,' according to a defense witness, physicians began connecting the disease with 'some sort of allergic or senitization phenomenon.' Some known or said to be known, causes of the disease--some of the witnesses said that the definite cause had never been stated--are drugs, kidney infections, serums of all kinds, blood transfusions, sulpha drugs, penicillin and phenobarbital. Both plaintiff and defense witnesses all concede, unless the present case is an instance, that there has never been either a reported or an established case of periarteritis nodosa caused by paraphenylendiamine hair dye. The plaintiff's regular physician, after a muscle biopsy, diagnosed her illness as periarteritis nodosa, adding 'allergic periarteritis nodosa.' The defendant did not dispute the accuracy of the diagnosis, one defense witness who casually examined her and her case history in the presence of her doctor said, 'I have no reason to disagree; this case had been diagnosed polyarteritis (a synonym) nodosa, and I have no reason to disagree with that diagnosis.' It was the opinion and position of the doctors testifying for the defendant that the cause of the malady was not known, that plaintiff's case, if she had the disease, was not caused by the paraphenylenediamine hair dye but may have been due to other infectious illness or to other medication.

In October or November 1952, Mrs. Braun purchased a package of Roux Oil Shampoo Tint and her sister, an experienced beauty operator with twenty years' experience, including the use of Roux dye, dyed her hair. They first read the instructions and made the prescribed preliminary patch skin test and, there being no reaction 'within the next twenty-four hours,' applied the dye according to directions. (There has been one case, incidentially, based solely on the inadequacy of the prescribed pretest use. Phillips v. Roux Laboratories, supra.) Thereafter, every five or six weeks, approximately twenty times, until March 31, 1955, plaintiff's sister 'retouched' her hair by applying the dye to the 'new growth hair'--all without any reaction or noticeable ill effect. There was one exception, on the next to the last retouching the plaintiff complained of her scalp itching, her sister examined it and noticed only a 'pinkish' scalp. At each retouching Mrs. Braun and her sister read the directions as to retouching only and that part of the directions did not then call for a preliminary patch test as they subsequently did--'before every application including retouch applications.'

On March 31, 1955, Mrs. Braun purchased the final package of Roux dye and about 12:30 that afternoon her sister again retouched her hair, beginning at the scalp and 'slightly into the hairline.' They followed directions and after leaving the dye on for about thirty minutes shampooed her hair with Shasta Shampoo. On other occasions they had used Glo Shampoo and Marrow Oil Shampoo. Also on other occasions, for her permanent waves, they had used Lilt Home Permanent which contains ammonium thioglycolate. March 31, 1955, fell on Thursday; on Friday, April 1st, she had an appointment with her doctor, the internist who eventually diagnosed her present illness, for a periodic checkup. She kept the appointment and gave a history of a recent respiratory infection or cold but an examination revealed, except for a nasal congestion, that she was in normal good health, and a urinalysis 'was likewise within normal limits.' By Saturday, April 2, however, she noticed large blotches on her legs, within a few hours her legs were swollen and by Sunday she was quite ill. She had called the doctor on Saturday and he saw her late that night and 'felt that she had an allergic reaction--what we call an allergic purpura.' She had a temperature, there was swelling in the ankles, legs and hands. Her father's death intervened and she was not hospitalized until April 6th and, after various tests, including a muscle biopsy by a pathologist, her illness was diagnosed as 'allergic periarteritis nodosa.'

As indicated in the beginning, the plaintiff's theory of the defendant's liability was that in the briefly noted circumstances the defendant had breached its duty and was guilty of 'a negligent failure to give an adequate warning of the danger to consumers of systemic injury because of acquired sensitivity to defendant's product.' Upon this appeal the defendant does not directly challenge or question its general basic duty and, consequently, it is not necessary to enter upon a discussion of the subject. The defendant does contend, however, that the plaintiff failed to make a submissible jury case for the reason that her entire case is based upon sheer speculation, guesswork and conjecture. To illustrate, it is said that 'It is mere conjecture--a matter of opinion--whether or not plaintiffs illness originated after her use of defendant's product on March 31, 1955.' It is argued that it is 'wholly speculative--a matter of opinion--whether or not plaintiff's illness was the result of allergy or hypersensitivity.' It is contended that it is 'nothing but guesswork--a matter of opinion' whether plaintiff was hypersensitive to defendant's product and, in connection with these two and the last assignments, it is urged that the plaintiff may not add inference to inference to make a submissible case, or add a third and a fourth speculative inference to prior speculative inferences to make a case for the jury. The appellant's fourth point upon the essential merits of the appeal is that the plaintiff did not make preliminary patch tests prior to retouching and that it is 'strictly a matter of...