Thomas v. Gillette Co.

• Decision Date: 15 January 1970
• Docket Number: No. 2924,2924
• Citation: 230 So.2d 870
• Parties: Lillie Mae THOMAS et al., Plaintiffs-Appellants, v. The GILLETTE COMPANY (Prom Cosmetics), Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 870

230 So.2d 870

Lillie Mae THOMAS et al., Plaintiffs-Appellants, v. The GILLETTE COMPANY (Prom Cosmetics), Defendant-Appellee.

No. 2924.

Court of Appeal of Louisiana, Third Circuit.

Jan. 15, 1970.

Rehearing Denied Feb. 4, 1970.

Dissenting Opinion Feb. 9, 1970.

Writ Refused April 3, 1970.

Jacque B. Pucheu, Eunice, for plaintiff-appellant.

Davidson, Meaux, Onebane & Donohoe, by Timothy J. McNamara, Lafayette, for defendant-appellee.

Before FRUGE , HOOD, and CULPEPPER, JJ.

HOOD, Judge.

This is an action for damages instituted by Lillie Mae Thomas and her husband, Burley Thomas, against The Gillette Company manufacturer of a hair relaxant known as 'Curl Free Natural Curl Relaxer.' Plaintiffs allege that Lillie Mae Thomas purchased and used 'Curl Free', and that her use of that product caused her to sustain injuries for which she and her husband seek to recover damages. Judgment was rendered by the trial court in favor of defendant, and plaintiffs have appealed.

The important factual issues presented are whether the preparation used by plaintiff actually caused the injuries of which she complains, whether there was a vice or defect in the product, and whether it was used properly. The principal legal issues to be determined are whether the rule of strict liability should be applied to the extent that plaintiffs are relieved of the burden of proving that defendant was negligent or that there was a vice or defect in the product, whether defendant was negligent in having failed to warn plaintiff of the possibility of an allergic reaction to the hair relaxer, and whether the doctrine of res ipsa loquitur applies.

The evidence shows that Lillie Mae Thomas purchased a package of 'Curl Free' from Gibson Discount Center in Eunice, Louisiana, on or about August 10, 1966. The kit, manufactured by defendant and designed to relax and straighten curly hair, contained four separate items--a relaxer lotion, a relaxer powder, a stabilizer powder, and a conditioner. The kit also contained detailed directions for the use of the product. These instructions, briefly, were that the purchaser was to shampoo her hair before applying any part of the product to her scalp, and that thereafter she was to apply various mixtures of the ingredients according to the directions and to rinse or comb her hair after each such application.

The instructions in the kit also contained the following information:

'If your hair is very dry, brittle, damaged or tends to break or fall easily, or if your hair is gummy, spongy, or rubbery or has an unsatisfactory feel when it is wet, then it is not in condition for any type of hair relaxing. Do Not use CURL FREE Natural-Curl Relaxer at this time. Wait until the hair is in good condition. At that time, take a Strand Test to be sure your hair is in condition to be relaxed. * * *

'If your hair has been bleached, tinted or treated with any product that lightens, brightens, restores or affects its color in any way * * * then Each and every time you have a CURL FREE you must take a Strand Test before giving the complete application to make sure your hair is in condition to be relaxed at the time. * * *

'If your scalp or skin is sensitive, scaly, scratched, sore or tender, do not use CURL FREE. Wait until your scalp and skin and in good condition. * * *'

Directions for performing the 'Strand Test' were contained in the instructions. There was no warning in those instructions, however, that the product, used either alone or with some other product, could cause an allergic reaction to some individuals.

Although Mrs. Thomas denied that she had ever bleached or color-treated her hair, she stated that on August 14, 1966, she performed at least a portion of the strand test as a precautionary measure. She detected no adverse results from that test, so she then applied the product to her entire scalp, following the directions in the kit. Pursuant to those directions she shampooed her hair before applying the lotion, and in doing so she used Halo Shampoo, which she testified was the only cosmetic product she had used on her hair for many years. Almost immediately after using defendant's product 'Curl Free', and while combing her hair, plaintiff noticed that tufts of hair began either to break off or to fall out. During the night following the application of the product, Mrs. Thomas awoke because her scalp was itching and causing her discomfort. The following morning, her scalp, forehead and neck had erupted in blisters, and she had lost more hair causing small areas of baldness.

On August 15, 1966, Mrs. Thomas was examined by Dr. R. E. Landreneau, a general practitioner, who found that her hair was falling out in large clumps and that her scalp, temples and neck were red and swollen. He felt that plaintiff had suffered an 'acute allergic reaction' to the hair relaxer product which she had used the previous day, and he referred her to Dr. R. H. Robinson, a dermatologist, for further evaluation and treatment.

Dr. Robinson saw Mrs. Thomas initially on August 16, and he treated her for a period of about three months thereafter. On his first examination he found that she had an eruption on the scalp, forehead, eyelids, cheeks and ears, with some extension to the neck. He diagnosed her condition as 'probably contact dermatitis' or 'contact eczema', and he felt that the 'Curl Free' which she used was 'probably the precipitating agent.' He did not confirm this diagnosis by a patch test, and he stated that he did not know whether the cause of her scalp conditions was a 'primary sensitization reaction' or an 'allergic reaction.' He stated, however, that it is possible that the reaction which she experienced could have been caused by the Halo Shampoo or by the synergistic effect of using that shampoo with the hair relaxer lotion. Dr. Robinson gave plaintiff medications and a special shampoo which cured the skin problem. He has no record and no recollection of plaintiff developing any bald spots, any patchy loss of hair, or any great amount of hair loss while he was treating her. He stated that on the date of the trial 'she had no evidence of any active dermatitis.' He testified that none of the chemical ingredients of 'Curl Free' were primary irritants; and he defined a primary irritant as a chemical which, in given strengths, would cause a reaction in any person, but that the strengths necessary to cause such a reaction would vary from one individual to another.

William S. Arnold, a chemical engineer employed by defendant as Director of Product Development and Chemical Control, was directly involved with the development and marketing of 'Curl Free', and he was in general charge of the producing, testing, and marketing of that product by defendant. He gave a detailed account of the manner in which it was developed, and he described the extensive laboratory testing and test-marketing procedures which were followed by defendant in producing and marketing 'Curl Free.' He said that the tests performed by defendant revealed no evidence of any chemical, or combination of chemicals, in the product which would be harmful to any individual whose hair was in good condition. He acknowledged that the product could produce adverse results if used by an individual whose hair was not in good condition, or whose hair had been dyed or bleached, but he correctly pointed out that the instructions in the 'Curl Free' kit contained warnings as to such adverse results.

Mr. Arnold conducted a microscopic analysis of portions of Mrs. Thomas's hair which allegedly fell out at the time she applied 'Curl Free'. He also examined and tested portions of her hair which were taken from her head approximately one year after her use of the product. He testified that plaintiff's hair was in 'very poor condition' when the hair relaxer was used, that it showed nicks and broken and split ends, and that 'about seventy percent of the fibers that we received had been cut rather than broken at the scalp end, a sharp cut, and the remaining thirty percent showed evidence of breaking.' He stated that when a strand of hair falls out it normally comes out with the bulb remaining on the strand. In examining the batch of hair which plaintiff represented as having fallen out immediately after she applied the 'Curl Free' lotion, he was not able to find any bulbs at all. He concluded, therefore that the hair samples which had been furnished to him had been cut or broken, that they had not fallen out from the roots, and that the relaxer lotion which plaintiff used had nothing to do with her loss of hair. In his opinion, both samples of plaintiff's hair which he examined showed evidence that her hair had been dyed or bleached, although he conceded that he was not positive of that fact.

The evidence shows that defendant has sold more than one million packages of 'Curl Free' since that product was put on the market, and that during that time it has received only two complaints from purchasers or users. The relaxer is manufactured in large quantities or batches. The lotion which Mrs. Thomas used, for instance, came from a three thousand gallon batch, which produced at least forty-two thousand bottles of the finished product. The ingredients of each such batch are tested before the manufacturing process begins, and then after the lotion has been produced it is again tested before it is bottled. The evidence does not show that there was any vice or defect in the 'Curl Free' which plaintiff used, or that it contained any deleterious substance.

Judgment was rendered by the trial court rejecting plaintiffs' demands. As shown in his reasons for judgment, the trial judge found that plaintiffs failed to prove that there was a vice or defect in the hair relaxer which Mrs. Thomas used, that the doctrine of res ipsa loquitur is not applicable, that plaintiff suffered an allergic reaction to the hair relaxer or to a combination of the relaxer and a shampoo, and that ...