Chandler v. Wal-Mart Stores Inc., CV-15-445

• Decision Date: 31 August 2016
• Docket Number: No. CV-15-445,CV-15-445
• Parties: Lakesia Chandler and Jasmine Davis, Appellants v. Wal-Mart Stores Inc., L'Oreal USA, Inc., and L'Oreal USA Products, Inc., Appellees
• Court: Arkansas Court of Appeals

2016 Ark. App. 372

498 S.W.3d 766

Lakesia Chandler and Jasmine Davis, Appellants

v.Wal-Mart Stores Inc., L'Oreal USA, Inc., and L'Oreal USA Products, Inc., Appellees

No. CV-15-445

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered August 31, 2016

Rehearing Denied October 5, 2016

Appellate Solutions, PLLC, d/b/a Riordan Law Firm, by: Deborah Truby Riordan, Little Rock; and Kelley Law Firm, P.C., Rogers, by: Kevin Kelley and Michael Crozier, Little Rock, pro hac vice, for appellant.

Quattlebaum, Grooms & Tull PLLC, by: Steven W. Quattlebaum, E. B. Chiles IV, and Sarah Keith-Bolden, Little Rock, for appellees.

CLIFF HOOFMAN

, Judge

Appellants Lakesia Chandler and Jasmine Davis appeal from the circuit court's order granting summary judgment in favor of appellees, Wal-Mart Stores, Inc. (“Wal-Mart”); L'Oreal USA; and L'Oreal USA Products, Inc. (collectively, “L'Oreal”). On appeal, appellants argue that the circuit court erred by (1) ignoring evidence that was favorable to them; (2) granting summary judgment where questions of material fact remain as to the product's defects and as to appellees' liability, whether in strict liability or negligence; (3) granting summary judgment where questions of material fact remain as to their claims of deficient labeling; (4) granting summary judgment on their claims for intentional infliction of emotional distress (“IIED”) and punitive damages; and (5) granting summary judgment on their remaining claims. We affirm.

On June 15, 2011, Chandler, individually and as next friend to minor, Jasmine Davis, filed suit against Wal-Mart in connection with injuries that her thirteen-year-old daughter, Davis, received after using Garnier Fructis Sleek and Shine Anti-Frizz Serum (“serum”), a product that was purchased at a Wal-Mart store in West Helena, Arkansas.¹ A first amended complaint was filed on December 20, 2011, adding the manufacturer, L'Oreal, as a defendant. The complaint alleged that Davis suffered third-degree burns

and became permanently disfigured after using the serum on September 21, 2010. According to the facts alleged in the complaint, Davis applied the serum to her hair and then began to comb her hair with a metal straightening comb, which she had heated on a gas stove. The complaint stated that, immediately after she began combing her hair, Davis's head, arms, and upper body became engulfed in flames. Davis underwent six surgeries for tissue removal, skin replacement, and facial and ear reconstruction. The complaint claimed that the serum contains two primary ingredients, cyclopentasiloxane and dimethiconol, which are known to be flammable. It was further alleged that testing had shown that when a hot comb was used on hair treated with the serum, the hair began to smoke. Based on the results of the tests, appellants claimed that the product was defective and that appellees had failed to adequately warn consumers about the danger. Specifically, appellants alleged claims of strict products liability, breach of warranty, strict products liability-failure to warn, negligent failure to warn, and IIED. In addition to general damages, the complaint also sought punitive damages against appellees.

Appellees separately answered the amended complaint and denied the allegations. On December 9, 2014, appellees filed a joint motion for summary judgment. They claimed that the serum did not contribute to the incident wherein Davis's hair caught on fire and that appellants could not demonstrate a genuine issue of material fact to the contrary. In support of their motion, appellees attached excerpts from Davis's deposition stating that her hair had caught on fire after approximately one hour of straightening her hair with the hot comb, which she had done while standing next to a gas stove that she had used to periodically reheat the comb. Appellees also attached a picture of the comb, which had a wooden handle that was charred.

In addition, appellees attached deposition excerpts from appellants' expert, Dr. Harold Zeliger, stating that he had not seen or inspected the charred comb or the gas stove used by Davis prior to pictures being shown to him during the deposition. He indicated that he was not even aware that the comb had a wooden handle. Dr. Zeliger further stated that he had not performed any independent investigation or tests to support his conclusion that Davis's hair caught on fire due to the auto-ignition of chemicals in the serum when the metallic portion of the hot comb was applied. Instead, Dr. Zeliger indicated that he had reached his conclusions after conducting online research to locate the Material Safety Data Sheets (MSDSs) for the particular chemicals used in the serum and their respective ignition characteristics. Dr. Zeliger admitted that he did not consider or rule out the alternative possibilities that Davis's hair had caught on fire when it came into direct contact with the open flame on the gas stove or that the wooden handle of the comb contained a spark that had caused her hair to ignite. He further admitted that the two components of the serum, linalool and limonene, that he considered to have low autoignition temperatures, were a de minimis amount of the entire product, although he opined that the presence of these two chemicals was “not necessarily” irrelevant to the behavior of the serum as whole. According to Dr. Zeliger, he could not state with scientific certainty that the comb would ignite hair coated with the serum under the conditions described by Davis because he was unable to accurately test this hypothesis.

Appellees also attached to their summary-judgment motion a fire-investigation report by appellees' expert, Dr. Gregory Haussmann, in which he detailed the results of extensive testing that he had performed to demonstrate that the serum does not cause human hair to ignite when a heated pressing comb is applied under conditions similar to those described by Davis prior to the fire. Dr. Haussmann's report stated that the hair samples did not ignite during testing even when the comb was heated to a temperature of 850 degrees, a temperature high enough to cause the hair itself to melt onto the comb. Appellees further included a report by Dr. Christine Wood, appellees' human-factor expert, concluding that it was reasonable and appropriate for the serum not to have a combustibility warning and that the directions on the bottle of serum played no causal role in the fire causing injury to Davis.

Wal-Mart also filed a supplemental motion for summary judgment, arguing that it was only the seller, not the manufacturer, of the serum and that appellants had failed to show that it knew or had reason to know that the serum was defective or dangerous. Wal-Mart attached its discovery responses indicating that it did not perform testing on the serum; that it had no documents in its possession relating to any third-party testing of the product; that it relies on the packaging, warnings, instructions, and precautions provided by its suppliers; and that it had not received any consumer complaints about the serum before Davis was injured.

In their response to the summary-judgment motion, appellants attached excerpts from the deposition of L'Oreal's vice president of Analytical Chemistry and Microbiology, Dr. Henry Kalinoski, who acknowledged that the serum contained certain ingredients that could be characterized as hazardous and that the serum could be considered to be combustible with its flash point of 170 degrees. Appellants also attached material from the report and deposition of their expert, Dr. Zeliger, who opined that the serum itself was a combustible product; that some components of the product were combustible and others were flammable; that the serum contained components with low auto-ignition temperatures; that the combustible components of the product can readily ignite when heated to 170 degrees, a temperature readily obtained when either a hair dryer or a hot comb is used on one's hair; that any flammable components of the product increase the potential for fire when the product is exposed to an ignition source; that some components of the product will auto-ignite when subjected to temperatures above the mid-450s and that such temperatures are readily available when a hot comb is used to heat the hair; that it is foreseeable that a hot comb, such as the one used by Davis, would be used in combination with the serum to straighten the hair; that the fire in Davis's hair was caused by the propensity of the serum to ignite when subjected to heat of the magnitude expected from its recommended use; and that L'Oreal had failed to provide any warnings on its label that would alert the user to the flammable, combustible, and auto-ignition potential of the product. In addition, appellants attached to their response the serum's label, the officialization and safety certificate of the product, and documented complaints of various adverse reactions reported by consumers following use of the serum. Based on this material, appellants argued that there were material issues of fact remaining to be resolved and that summary judgment in favor of appellees was inappropriate.

In their reply to appellants' response, appellees argued that summary judgment was appropriate if the circuit court agreed with any of the four following statements: (1) appellees' previously filed motion in limine to exclude the expert-opinion testimony of Dr. Zeliger should be granted; (2) under the relevant federal regulations, regulatory guidance, and expert testimony, the serum was not defective for lack of a warning because it was not flammable or combustible; (3) even assuming, arguendo, that the serum was combustible, appellants failed to establish that the serum, as opposed to any number of likely alternative causes, was the proximate cause of Davis's injury; or (4) appellants lacked the necessary expert testimony regarding the proper labeling.

On January 28, 2015, a letter opinion was filed by ...