Skaggs v. Clairol Inc.

• Decision Date: 26 March 1970
• Citation: 85 Cal.Rptr. 584,6 Cal.App.3d 1
• Court: California Court of Appeals Court of Appeals
• Parties: Diane SKAGGS, Plaintiff and Respondent, v. CLAIROL INCORPORATED, a corporation, Defendant and Appellant. Civ. 26012.

Page 584

85 Cal.Rptr. 584

6 Cal.App.3d 1

Diane SKAGGS, Plaintiff and Respondent, v. CLAIROL INCORPORATED, a corporation, Defendant and Appellant.

Civ. 26012.

Court of Appeal, First District, Division 2, California.

March 26, 1970.

Rehearing Denied April 24, 1970.

Hearing Granted June 17, 1970.

Carroll, Davis, Burdick & McDonough, San Franciso, Gerald P. Martin, Jr., Oakland, for counsel, for appellant.

Cartwright, Saroyan, Martin & Sucherman, San Francisco, for respondent.

SHOEMAKER, Presiding Justice.

Defendant appeals from a judgment for damages recovered against it by plaintiff, allegedly as the result of injuries sustained when she dyed her hair with a product manufactured by defendant. As grounds for recovery, plaintiff alleged negligence, express and implied warranty and strict liability. Defendant's answer denied the material allegations of the complaint and affirmatively alleged that plaintiff was guilty of contributory negligence.

The case was tried before a jury. Plaintiff testified that on Saturday, February 27, 1965, she purchased Miss Clairol Black Velvet hair dye and cream peroxide. Plaintiff was 21 years old at the time and had used the product in question since she was 16, applying it to her hair approximately twice a year. Plaintiff had never suffered from any type of skin or dermatitis problem, and had never experienced any ill effects from the use of said hair dye.

Plaintiff testified that prior to dyeing her hair she read the directions accompanying the dye. The package containing the hair dye bore the following printed warning: '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.' The directions referred to described a patch test whereby a mixture of the dye and peroxide was to be applied to the bend of the elbow or behind the ear and left on the skin for 24 hours to test for hypersensitivity to the dye.

Plaintiff recalled reading the warning on the package, but did not remember seeing any instructions describing the patch test. She testified that the only test she had ever conducted when preparing to dye her hair consisted of separating one strand of her hair from the remainder, applying the dye to the strand and waiting 45 minutes to see whether the strand had turned the desired color; that she conducted this test and was entirely satisfied with the color; that she then applied the dye to the rest of her hair in accordance with the instructions, used the entire bottle in the process and threw away the package, bottle and instructions when she had finished. Plaintiff testified that she went to bed around 10 p. m. Her hair had been dyed the desired shade and she was experiencing no unpleasant side effects.

On retiring the following evening, plaintiff noticed that her scalp was itching quite badly. Her scalp continued to itch and she did not sleep well that night. Monday morning the itching was worse and her condition continued to worsen until on Tuesday morning she found that her forehead had begun to swell and that scabs were forming on her scalp. Plaintiff went to the San Francisco General Hospital at 8 a. m. on Tuesday and was given a salve to apply to her head. The salve failed to alleviate her symptoms, however, and by Wednesday her head and neck had become extremely swollen and it was no longer possible for her to open her eyes. She went to the Presbyterian Hospital that day but was told that there was no one available to treat her.

On Thursday plaintiff consulted Dr. Dowdy, a dermatologist, who treated her with steroid injections, antihistamines and wet compresses. He treated plaintiff for over a month before discharging her as cured. Dr. Dowdy's medical records indicated that plaintiff had told him that she had noticed a rather severe burning of the scalp within a few hours after she dyed her hair and that her forehead and eyes were swollen by the following morning. However, plaintiff denied that she had made any such statement to the doctor. It was also shown that plaintiff had been examined at the San Francisco Emergency Hospital on March 17, 1965, by a Dr. Simpson, and that according to his records plaintiff had told him that her scalp problems had developed 'shortly' after she used the hair dye. Plaintiff denied that she had made any such statement to Simpson.

Dr. Butler, a dermatologist called by the defense, examined plaintiff on June 5, 1967. He found no evidence of any scalp disease at that time. She told him of her 1965 reaction to the Clairol hair dye and stated that she had had no trouble with her scalp until two days after she dyed her hair. Dr. Butler gave plaintiff a patch test, placing a bandage wetted with a mixture of Black Velvet hair dye and peroxide upon her inner forearm. He told her to remove the bandage if she felt uncomfortable and arranged to see her the next day. At that time, she told him that she had removed the bandage early that morning because it was reacting the same way her scalp had. Dr. Butler examined the patch test site and found a 50-cent-piece sized area of redness with some swelling and a few blisters. He concluded that plaintiff had developed an allergy to paraphenylene-diamine dye. Dr. Butler stated that the dye in question was one in common usage because it was the most effective in holding color in hair as well as animal products such as wool and leather. Dr. Butler thought it unusual but medically possible that plaintiff's initial 1965 allergic reaction to the dye could have taken two days to set in. It was also quite possible that a particular individual could use the dye two or three times without difficulty and develop an allergic reaction to it only on the third or fourth application. An allergic reaction to the dye in question could be severe enough to require hospitalization and could even be fatal in some individuals. Such a reaction was not a mere skin irritation but a skin sensitization which came up through the epidermis. Dr. Butler stated that the skin irritation warning on the Clairol bottle was considered adequate by the federal Food and Drug Administration but that he personally would prefer a stronger warning. The 24-hour patch test described in the Clairol instructions was recognized by medical authorities as being an efficacious method of determining whether an individual had become sensitized to paraphenyl-enediamine dye.

Dr. Dowdy was also called as a witness for the defense and testified that when plaintiff initially consulted him, he diagnosed her condition as acute contact-type dermatitis. He ascertained from plaintiff that her symptoms had come on after she had used Clairol hair dye. However, since her condition was acute enough to require prompt treatment, he made no attempt at that time to determine whether she was suffering from an allergic reaction to the dye or had used an improper procedure when applying the dye to her hair. Dr. Dowdy stated that the type of reaction which plaintiff had experienced was a fairly rare one, considering the large number of people who were able to use that particular type of hair dye safely. Dr. Dowdy was questioned regarding plaintiff's positive reaction to the patch test administered by Dr. Butler in 1967, and he testified that even though said reaction occurred...