Gilks v. Olay Co., Inc.
| Decision Date | 28 December 1998 |
| Docket Number | No. 97 Civ. 5687(DC).,97 Civ. 5687(DC). |
| Parties | Tina GILKS, Plaintiff, v. OLAY COMPANY, INC. and Proctor & Gamble Co., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Jan Hudgins Riley, New York City, for plaintiff.
Kramer, Levin, Naftalis & Frankel by Edward L. Jewett, Randall K. Packer, New York City, for defendants.
In this diversity case, plaintiff Tina Gilks seeks damages for a severe skin reaction allegedly caused by defendants' well-known product Oil of Olay Moisture Replenishing Cream ("Oil of Olay" or the "Product"). Plaintiff asserts tort, breach of warranty, and strict liability claims against defendants Olay Company, Inc. and The Proctor & Gamble Distributing Company, incorrectly sued herein as Proctor & Gamble Co.
Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is granted and the complaint is dismissed.
Construed in the light most favorable to plaintiff, the facts are as follows:1
1. Plaintiff's Use of the Product
During the last week of May 1997, plaintiff purchased a two ounce jar of Oil of Olay from a pharmacy in Manhattan. (Gilks Aff. ¶ 20). The Product's packaging did not warn of any possible negative side effects or contraindication.2 That evening she applied the cream to her face after showering. (Id. ¶ 23).
The following morning, plaintiff showered again and reapplied the Product. (Gilks Dep. Tr. at 52). Gilks returned home from work at 1 P.M., showered, donned her bathing suit, and spent approximately the next 45 minutes sunbathing on her roof. (Id.). Plaintiff was not wearing Oil of Olay while she was in the sun. (Id. at 61-62). Plaintiff did not apply any sunscreen or other lotion before her tanning session. (Id.). When plaintiff finished sunbathing, she again showered and reapplied Oil of Olay. (Id. at 52-53). That evening, plaintiff noticed that her skin was slightly pink, "but [she] assumed it was from the sun that day." (Id. at 61).
The following morning, plaintiff showered, applied the Product, and went to work. She noticed that she was developing "little pinky spots" on her skin and "assumed maybe it was the sun." (Id. at 53). Nonetheless, after returning home, plaintiff again decided to sunbathe without applying any sunscreen or other lotion. (Id.). Gilks decided, however, not to spend as much time in the sun that day.3 (Id.). Plaintiff again showered before sunbathing and was not wearing Oil of Olay while she was in the sun. (Id. at 61-62). When plaintiff left the roof, she took a shower and reapplied Oil of Olay. (Id.).
The next day, the "pinky spots" turned into "slight raised bump[s]" and "blistery-type things." (Id. at 61-62). That afternoon, plaintiff's co-worker, Willy Shapiro, informed plaintiff that one of the blisters on her face had popped. (Id. at 62). After plaintiff told Shapiro that she had been using Oil of Olay, Shapiro told plaintiff that she had had a problem with the Product some time ago and instructed plaintiff to wash the cream off of her face immediately. (Id. at 57, 62).
After the discussion with Shapiro, plaintiff discontinued use of the Product. (Id. at 57-58). Plaintiff's complexion worsened and she developed blisters that resembled "burn marks." (Id. at 55).
Plaintiff did not retain the sales receipt, she discarded the Product before this litigation began, and no tests were ever conducted on a sample of the cream. (Id. at 50-51, 73-74; Packer Aff.Ex. 4).
2. Medical Evidence
Approximately ten to fourteen days after she began using Oil of Olay, plaintiff asked the doctor who employed her, Dr. Donald P. Dallas, if he would look at her skin. (Gilks Dep. Tr. at 69-70). Dallas is a cardiologist and general practitioner, not a dermatologist. (Id. at 70; Pl.Mem.Ex. F at 52). Dallas cultured the blemishes and learned that plaintiff had a staphylococcus aureus infection. (Pl.Mem.Ex. F at 40). Dallas diagnosed plaintiff with pyoderma or pustular dermatitis and prescribed Augmentin, an antibiotic. (Id. at 41, 44). According to plaintiff, Dallas also gave her samples of two creams, Elocon and Dipolene, which she claims are used to treat burns. (Gilks Dep. Tr. at 65, 71).
Dallas assumed that plaintiff's initial irritation was caused by her use of Oil of Olay, not because he tested the Product or because he ruled out other possible causes, but because plaintiff informed him that she had recently begun using the Product. (Id. at 51-53). Dallas does not opine to a reasonable degree of medical certainty that plaintiff's initial irritation was caused by the Product.
Indeed, Dallas concluded that plaintiff's infection may have been caused by plaintiff scratching her skin. (Id. at 44-45, 50-52). The doctor testified during his deposition that plaintiff likely developed an allergic dermatitis, which was aggravated by her scratching the irritated area. (Id. at 50, 52, 55). In Dallas's opinion, the condition probably persisted not because of the cause of the initial irritation, but from the subsequent infection. (Id. at 55).
Dallas observed that the placement and distribution of plaintiff's condition were not inconsistent with a reaction to exposure to the sun. (Id. at 39, 53). Dallas also acknowledged that pustular dermatitis could be caused by acne. (Id. at 54).
Dallas referred plaintiff to Dr. Myron C. Patterson, a physician who shares office space with Dallas and is also a cardiologist and general practitioner. (Id. at 75-76). Gilks testified during her deposition that Patterson examined her a couple of times at Dallas's request to monitor her progress. (Id. at 75-77). Patterson testified at his deposition, however, that he had no recollection of ever examining plaintiff for a skin condition of any kind. (Packer Aff.Ex. 7 at 19).
Dr. Orit Beitner is a general practitioner who practices gynecology. (Packer Aff.Ex. 11 at 11). Beitner did not treat plaintiff for her skin condition, but has provided plaintiff with medical care for the past few years. (Id. at 11-13).
Beitner testified during her deposition that on May 1, 1997, approximately four weeks before plaintiff's blemishes first appeared, she injected Gilks with Depo-Provera, a form of birth control. (Id. at 17-20, 24). Depo-Provera remains potent for three months. (Id. at 20). Although Beitner did not administer any subsequent doses of the drug to plaintiff, Beitner called in a prescription to plaintiff's pharmacy. (Id. at 19). Plaintiff had requested that Beitner call in the prescription so that Dallas could give her the injection. (Id.). Beitner testified that plaintiff called and informed her in September 1997 that Dallas had given her the second injection on August 1, 1997, three months after the first dose. During that phone call, plaintiff informed Beitner that she preferred to use birth control pills. (Id. at 20).
Beitner testified that Depo-Provera can cause acne and that a patient could develop an allergic rash from the drug. (Id. at 20-21).
Dr. David E. Cohen is defendants' expert.4 (Cohen Aff. ¶ 5). Cohen's opinion with respect to plaintiff's condition was based on his examination and interview of plaintiff, his review of photographs and a videotape taken prior to his examination, his review of plaintiff's medical records, a review of pertinent medical literature, and his experience as a dermatologist. (Id. ¶ 7).
On March 10, 1998, Cohen examined plaintiff. (Id. at 5). Cohen concluded, beyond a reasonable degree of medical certainty, that the condition of plaintiff's skin was caused by neurotic excoriations. (Id. ¶ 6). Neurotic excoriations are symptomatic of a condition where "a patient picks at her skin, causing abrasions, deep open wounds, and, in severe cases such as this one, permanent scarring." (Id.). Cohen testified at his deposition that there was "no doubt in [his] mind that [plaintiff's] current injuries are entirely self-inflicted." (Id. ¶ 20). Cohen reached this conclusion because, as is typical of neurotic excoriations, "most of the scars and wounds appear on plaintiff's cheeks and chest, areas easily reached by her hands, and the shape and size of the scars and wounds indicate that they were formed by a scratching motion." (Id. ¶ 11). Further, this condition is seen most frequently in women who are in their twenties or thirties. (Id. ¶ 6).
Moreover, according to Cohen, "[n]o over-the-counter face cream, Oil of Olay included, could have caused new scarring or fresh skin ulcers on [plaintiff's] face months after she stopped using the product." (Id. ¶ 10). Cohen testified that the videotape of Gilk's deposition taken November 27, 1997, approximately six months after plaintiff's blemishes appeared, was "particularly telling." (Id. ¶ 8; Packer Aff.Ex. 6). The video shows that plaintiff had fresh scars and ulcers at the time of the taping. (Cohen Aff. ¶ 10 & Ex. 6). Plaintiff's wounds at the time of Cohen's examination, approximately three and a half months after the taped deposition, nine and a half months after plaintiff used the Product, were in different places on her face and more severe than the wounds she had during her deposition. (Id. ¶ 9 & Ex. 2).
Cohen testified that "[t]he placement, shape, and size of [plaintiff's] scars and wounds are entirely inconsistent with injury caused by an allergic or otherwise adverse reaction to a topically applied personal hygiene product or cosmetic, such as Oil of Olay." (Id. ¶ 13). In Cohen's opinion, if plaintiff had had an adverse reaction to Oil of Olay, the Product would have "at worst ... caused rash-like symptoms that would have gone away shortly after [plaintiff] stopped using the product." (Id.).
According to Cohen, although "[i]t is possible that some blemish appeared on [plaintiff's] face and chest before she began picking her skin," he...
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