Wednesday, September 21, 2011
Court Tosses Suit Over Injuries Said to Be Caused by Makeup Injection
By a MetNews Staff Writer
A Sacramento-area woman who claims she suffered facial injuries as a result of having defective permanent makeup injected into her eyelids and eyebrows has no case against the day spa owner who injected the product, the Third District Court of Appeal ruled yesterday.
The panel affirmed a summary judgment for Alicia White, owner of Dermatique Day Spa and Permanent Cosmetics. It said that Donna Hennigan presented no evidence that White’s alleged negligence caused her injuries, or that the product was defective.
Hennigan’s evidence showed that she retained White in 2003 to apply pigment, which makes it unnecessary for the client to apply regular cosmetic makeup. After having two different Premier Pigments products applied, she claimed, she began experiencing adverse reactions in the area of her eyebrows, developing small lesions called granulomas as well as a bacterial infection.
She ultimately had to undergo surgery to repair an eyelid after it drooped.
Hennigan sued White and Premier in 2004. White cross-complained against Premier, but the company—which came under Food and Drug Administration scrutiny after other reports of adverse reactions to its products—filed for reorganization under Chapter 11 and obtained an automatic stay of all litigation against it.
The defense argued that White could not be held responsible, under either a negligence or strict products liability theory. It claimed that White applied the product properly, and that even if she didn’t, there was no showing that she caused the allergic reaction.
It further argued that the product was not defective, and that if there was a defect, White, being primarily a service provider rather than a distributor of a product, was not liable.
Sacramento Superior Court Judge Loren McMaster sided with the defendant and granted summary judgment.
Justice George Nicholson, writing for the Court of Appeal, agreed with the trial judge that the plaintiff failed to present a triable claim of either negligence or strict liability.
He rejected the claim that the defendant’s failure to perform a “spot” or “patch” test, in which pigment is applied to a small area of skin in order to determine whether it causes a reaction, constituted actionable negligence.
Nicholson acknowledged that the packaging for the pigment indicated that spot testing was “required.” But even assuming that the lack of such testing breached a duty of care, he said, “none of Hennigan’s evidence indicated the reaction would have likely been prevented had White performed the patch test.”
Hennigan, he noted, did not experience any reaction until three months after the pigment was first applied, and her doctor said allergic reaction to a pigment may not appear until years after it is applied. That evidence, Nicholson said, suggests that a patch test would not have disclosed that Hennigan was allergic to the pigment.
With respect to products liability, the justice explained that a plaintiff cannot prevail unless his or her primary objective in the transaction was to obtain a product, rather than a service. Since Hennigan “did not walk into the salon simply to purchase a bottle of pigment for her own use,” but rather to have White apply the product, strict products liability does not attach, the justice concluded.
In any event, Nicholson added, there was insufficient evidence of product defect.
“No evidence addresses how Premier designed or manufactured the pigments,” the justice reasoned. “ No evidence shows the defendants had a duty to warn at the time Hennigan received her applications because they knew or had reason to know the pigments could cause an allergic reaction such as Hennigan suffered.”
The FDA, he noted, did not involve itself in the issue until a year after Hennigan began having problems. “Under such circumstances, the mere fact of an allergic reaction is insufficient to establish a dispute over whether the product at issue was defective,” he wrote.
The case is Hennigan v. White, 11 S.O.S. 4935.
Copyright 2011, Metropolitan News Company