Gober v. Revlon, Inc.

• Decision Date: 28 March 1963
• Docket Number: No. 8806.,8806.
• Citation: 317 F.2d 47
• Parties: Vernelle W. GOBER, Appellee, v. REVLON, INC., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

317 F.2d 47 (1963)

Vernelle W. GOBER, Appellee, v. REVLON, INC., Appellant.

No. 8806.

United States Court of Appeals Fourth Circuit.

Argued January 14, 1963.

Decided March 28, 1963.

COPYRIGHT MATERIAL OMITTED

Aubrey R. Bowles, Jr., Richmond, Va. (Jack N. Herod, and Bowles, Boyd & Herod, Richmond, Va., on brief), for appellant.

William H. King, Richmond, Va. (Robert H. Patterson, Jr., Richard D. Obenshain, and McGuire, Woods, King, Gordon & Davis, Richmond, Va., on brief), for appellee.

Before BOREMAN, BRYAN, and J. SPENCER BELL, Circuit Judges.

J. SPENCER BELL, Circuit Judge.

This is an appeal from a judgment of the District Court based upon a jury verdict. The plaintiff, Vernelle W. Gober, brought suit against the defendant, Revlon, Inc., manufacturer of a product known as "Wonder Base", for injury to her fingernails and toenails alleged to have resulted from the use of the defendant's product. Liberally construed, the complaint alleged three causes of action: 1. failure to warn when the defendant knew, or should have known, if it had adequately tested its product before marketing, of its harmful effects, 2. violation of the Federal Food, Drug and Cosmetic Act, and 3. breach of an implied warranty that the product was fit for the purpose for which it was sold. The defendant denied all three, and asserted the affirmative defense as to the breach of warranty claim that under the California law plaintiff's notice was unreasonably delayed. The Court denied defendant's motions for a directed verdict, and, after the jury found for plaintiff, denied defendant's alternative motions for judgment N.O.V. or a new trial.

Nail polish tends to chip and crack, and, to alleviate this problem, the defendant manufactures and sells a nail base coat named "Wonder Base" to be applied to the nails before the polish. Plaintiff purchased Wonder Base on January 15, 1959, in San Francisco, California, where she then lived, and applied it to her nails each week end thereafter for more than eight months. In September 1959 she noticed discoloration, lines on the nails, and "thickening * * * like sand piling up under * * * her fingernails". She immediately ceased using Wonder Base or any other cosmetic on her nails. Nevertheless her condition failed to clear up and became the cause of much discomfort. Beginning in December 1959, she visited a chiropodist and two dermatologists in San Francisco. Thereafter plaintiff moved to Richmond, Virginia, and in April 1960 consulted Dr. Richard W. Fowlkes, an eminent dermatologist, who continued to treat her and who was her principal witness. Since the defendant does not deny the plaintiff's injuries, but instead contends that the defendant's product did not cause them, we see no reason to go into detail as to their extent. Action was commenced on November 15, 1960, and when the case was tried in January 1962 the plaintiff's nails, although much improved were far from normal.

In the late 1940's and early 1950's, dermatologists noticed a large number of female patients with symptoms similar to the plaintiff's. Much interest was aroused and after long study, several nail base coat products, including one produced by the defendant called "Everon" were found to have been the causative agents. It was agreed that these nail base coat products contained sensitizing agents which after continued use resulted in an allergic reaction to a substantial number of users. The profession referred to this as "nail base coat dermatitis".

Based on their earlier experiences with nail base coat dermatitis, and after eliminating other possible causes, Dr. Fowlkes and several other dermatologists called by the plaintiff testified that in their opinion the defendant's product "Wonder Base" has caused the plaintiff's condition.

The defendant's evidence was offered to show that the earlier studies attributed the allergic reactions to three of the four ingredients in their earlier product and that none of these were present in "Wonder Base". It was conceded, however, that a fourth ingredient, Toluene Sulfonamide Formaldehyde Resin, not the subject of intensive study during the earlier period, was a common ingredient to both products. Plaintiff's witness, Dr. Fowlkes, attributed her reaction to this ingredient.

Dr. Fowlkes also testified over defendant's objection that since treating the plaintiff he had treated three or four others for dermatitis which he attributed to the defendant's product. Revlon admitted that it had received two complaints of base coat dermatitis resulting from the use of Wonder Base, one about eight weeks prior to plaintiff's purchase of the product and one subsequent thereto. Plaintiff notified Revlon of her dermatitis on June 17, 1960. This was about nine months after she first noticed the trouble and about six months after she was first informed that Wonder Base might have been its cause.

The defendant contends on this appeal that the California law, which applies to the substantive issues in the case, does not permit recovery to the user of a cosmetic product for an allergic reaction resulting from her own peculiar sensitivity thereto. We do not agree that the California cases so hold. In addition, we do not find that the plaintiff admitted that her reaction was so unusual as to put her in a category by herself. California has not ruled directly on the point at issue, but the cases do not support the defendant's contention. In Zager v. F. W. Woolworth Co., 30 Cal.App.2d 324, 86 P.2d 389 (Dist.Ct. App.2d Dist.Div. 1, 1939) plaintiff sued for breach of an implied warranty alleging that she had contracted dermatitis from use of a product sold by defendant. Plaintiff's medical expert testified that the dermatitis was caused by an "idiosyncrasy" and that her reaction was "uncommon". The Appeal Court sustained a verdict for the defendant on the grounds that the evidence permitted an inference that the plaintiff's "constitutional condition" was the proximate cause of her injury rather than the defendant's product. The Court, however, pointed out that the evidence would have sustained a verdict for the plaintiff.

The next California case, Briggs v. National Industries, Inc., 92 Cal.App.2d 542, 207 P.2d 110 (Dist.Ct.App. 4th Dist. 1949), involved a plaintiff who acquired dermatitis after an application of defendant's cold wave solution. Plaintiff's evidence indicated an allergic reaction. The Court affirmed a verdict for the defendant on the ground that there was no showing that the defendant had knowledge of the harmful nature of the product. Again, it is by no means clear that "allergy" is an absolute defense. As a matter of fact, the opinion clearly implies that if the defendant had knowledge of the potential danger of allergic reaction, particularly if the reaction were widespread, the defendant would have had a duty to warn.

Finally, in Proctor & Gamble Mfg. Co. v. Superior Court, 124 Cal.App. 2d 157, 268 P.2d 199 (Dist.Ct.App. 1st Dist. Div. 2, 1954), the appeal arose over an effort to prohibit an order to disclose the number of complaints which the defendant had received. The Court ruled with the defendant on a technicality but in doing so it stated the rule that "if a seller knows or should know that an article sold by him is dangerous to some persons, even though few in number as compared with the number of users of the article, he is negligent if he fails to warn the ignorant of the hidden danger, 46 Am.Jur. 932, § 808; Annotation, Unusual Susceptibility to Injury, 121 A.L.R. 464; 26 A.L.R.2d 973". The defendant attempts to distinguish this case from the rule stated in Proctor & Gamble on the grounds that the product therein discussed contained a "primary irritant" which if present in sufficient quantity would injure the ordinary user, but nowhere in the opinion does...