Detraz v. Lee

• Decision Date: 13 April 2005
• Docket Number: No. 2004-988.,2004-988.
• Parties: Michelle DETRAZ v. Victor LEE d/b/a/ Virgin Nails.
• Court: Louisiana Supreme Court

900 So.2d 1099

Michelle DETRAZ v. Victor LEE d/b/a/ Virgin Nails.

No. 2004-988.

Court of Appeal of Louisiana, Third Circuit.

April 13, 2005.

Philip Stephen Aucoin, Jr., Stacy S. Lee, Lafayette, LA, for Defendants/Appellees Bechin Huynh and Bechin Huynh, d/b/a Virgin Nails.

Chris Paul Villemarette, Scott M. Hawkins, Hawkins, Garbin & Villemarette, LLC, Lafayette, LA, for Plaintiff/Appellant Michelle Detraz.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.

THIBODEAUX, Chief Judge.

In this negligence action, Melissa Detraz appeals a judgment entered pursuant to a jury verdict denying her petition for damages for scars resulting from an infection contracted during a pedicure at Virgin Nails, a nail salon. She argues the jury incorrectly concluded that, despite Virgin Nails' inadequate sterilization procedures, their negligence did not cause an infection in her legs. Because Ms. Detraz has proven causation, we reverse the judgment and assign damages of $79,380.00 for the cost of future surgeries and $50,000.00 in general damages.

I. ISSUES

Ms. Detraz argues the jury erred when it concluded that, although Virgin Nails negligently failed to sanitize its pedicure equipment, their negligence did not cause the staph infection Ms. Detraz contracted that left disfiguring scars on her legs. Ms. Detraz urges that the jury failed to weigh properly the testimony of Dr. Darrell Henderson regarding the causal link between the unsanitary pedicure and her staph infection.

Ms. Detraz also appeals the trial court's refusal to honor the jury's request to review certain testimony after deliberations began. Additionally, she asserts that the presence of an alternate juror in the deliberation room after the jury retired corrupted the deliberation process, making a new trial necessary, Finally, Ms. Detraz also filed a motion to make an audiotape of certain testimony part of the record. Because we conclude the jury erred with respect to causation and reverse their verdict, we do not address these issues.

II. FACTS

Melissa Detraz received a pedicure at Virgin Nails on September 23, 2002.¹ That morning, she shaved her legs as usual but recalled scratching the back of her right leg. Before she sat down in the pedicure chair vacated by the previous client, Ms. Detraz observed the nail technician spray the whirlpool tub attached to the chair and wipe it clean, a process that took about ten or fifteen seconds. As part of the pedicure, Ms. Detraz immersed her bare legs into a tub of water approximately halfway up her calf. The technician then trimmed and shaped her nails and cuticles. The technician applied new nail polish and massaged Ms. Detraz's legs. The pedicure took about forty-five minutes. Ms. Detraz testified she felt no pain or injury to her toes during the pedicure. Within two days of receiving the pedicure, she noticed a red, tender bump on the back of her right leg in an area that corresponded to the place where she had cut herself while shaving the day of the pedicure. The red bump quickly multiplied, turning into oozing sores which did not resolve, despite her efforts to care for them and clean them herself.

Ms. Detraz went to the Medical Center of Southwest Louisiana emergency room on October 22, 2002. The triage nurse asked her numerous questions, such as whether she went hiking, whether she had ever had a pedicure, and whether she tanned. The nurse, however, noted in Ms. Detraz's chart only that "Unaware if from tanning bed or fungus." Ms. Detraz testified that, although she admitted to the ER nurse she had used tanning beds in the past, she did not tell the nurse she thought she had contracted the infection from a tanning bed. In fact, according to her testimony, she had not used a tanning bed in five to six months before her pedicure. The ER told Ms. Detraz she had contracted a fungus, but prescribed Nystatin, which is a yeast medication.

Despite the medication, there was no improvement and the infection continued to spread. On November 1, 2002, Ms. Detraz visited Dr. Ronald Daigle, a dermatologist. Although he attempted to culture the infection, no bacteria grew from the sample and he was unable to clinically confirm his diagnosis. He prescribed Bactrim and Omincef which are used to treat staph infections. Ms. Detraz responded to the antibiotics and her symptoms began to resolve. However, the sores had caused serious scarring on her legs. Ms. Detraz next went to Dr. Adrian Stewart. Dr. Stewart could not identify the derivation of her infection, but discouraged surgery for the scars.

Finally, Ms. Detraz sought treatment from Dr. Darrell Henderson, a plastic surgeon, on April 16, 2003. Dr. Henderson took a complete medical history concerning the pedicure. He informed Ms. Detraz that her scars were permanent and would require several surgeries to correct. Ms. Detraz sued Virgin Nails for damages, arguing that its failure to properly clean the pedicure equipment caused her staph infection and subsequent scarring. During trial, Ms. Detraz presented the jury with evidence that Virgin Nails did not follow appropriate procedures for sanitizing its equipment before each pedicure. After a trial on the merits, a jury concluded that Virgin Nails had been negligent in its administration of its pedicure procedures, but its negligence had not caused Ms. Detraz's injuries. Ms. Detraz appeals.

III. LAW AND DISCUSSION

The Louisiana Supreme Court delineated the standard for assessing liability for damages caused by a party's negligence in its decision in Fowler v. Roberts, 556 So.2d 1 (La.1989). In that opinion, the court stated:

The determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) proof that the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element).

Id. at 4.

Thus, to determine liability for negligence, a party must undertake this duty/risk analysis. In this case, the salient issue is whether Virgin Nails' negligent breach of its duty to customers to control the risk of infection caused Ms. Detraz's infection and subsequent scarring.

Ms. Detraz demonstrated that Virgin Nails did not follow proper sanitization procedures when cleaning its equipment, specifically the pedicure tub in which Ms. Detraz immersed her feet and lower legs during the pedicure. Virgin Nails used Barbicide, a disinfectant, to clean the whirlpool tubs attached to the pedicure chairs. The directions on the Barbicide bottle require the user to prepare a solution of two ounces of Barbicide to thirty-two ounces of water and thoroughly wet all surfaces with the mixture. The instructions require that the surface remain wet for ten minutes, and then be allowed to air dry. Alternatively, the user may soak the item in the Barbicide solution. Actually soaking the tub in solution is not practical, because the tub is attached to the pedicure chair, so the operators must drench the surfaces of the tub with the Barbicide solution for ten minutes, and then permit the wet surface to dry in order for it to be effective.

Bechin Huynh and Bon Huynh, the operators of Virgin Nails, provided inconsistent testimony about the procedures they followed to clean the pedicure tubs. For example, Ms. Huynh testified that she sprays the tub with Barbicide, then again with clean water, and wipes it down with a clean towel. She testified that she leaves the Barbicide solution on the tub surface for ten minutes. During her deposition, however, she stated that she only sprayed and wiped the surface of the tub, without allowing the solution to sit on the surface for ten minutes. She also testified she did not "soak" the surface of the tub.

The directions also require permitting the wet surface to air dry after being thoroughly wet for ten minutes. While Ms. Huynh claimed that she does permit the tub surface to air dry, she also testified that the surface was sprayed with clean water and then wiped dry after only five or ten minutes.

Mr. Huynh further explained that, to clean the tub between customers, the technician sprays Barbicide on the tub just before the end of each customer's pedicure, when her feet are removed and the water drained from the tub. The technician then massages the customer's legs and paints her toenails, which takes between ten and fifteen minutes. She then finishes cleaning the tub by rinsing the tub with clean water and wiping it with a clean towel. Mr. Huynh also admitted that he prepares a stronger Barbicide solution than necessary, assuming that a stronger solution would be more effective.

Kathy Arceneaux, a licensed cosmetologist for twenty years, was admitted as an expert in cosmetology. She read from a standard cosmetology textbook, used to educate cosmetology students regarding guidelines for use of disinfectants. The text admonished that "disinfectants must always be used in strict accordance with manufacturer's instructions" and noted specifically that "mixing chemicals stronger than recommended by the manufacturer counteracts their effectiveness" and might be dangerous at higher concentrations. The text continued: "Such variables as mixing precautions and exposure times demand particular attention." Ms. Arceneaux testified that, in her expert opinion, mixing the chemical stronger than manufacturer recommendations was ill-advised, and failure to follow the manufacturer's instructions could render the product ineffective. Thus, the...