By Robert E. Price
December 5th, 2012 9:00am
When Amber Wright was 13 years old, she visited a hair salon in Carrollton, Georgia for a cut-and-color. The licensed cosmetologist used a product called “Blondest Blonde,” manufactured by Farouk. Between getting hit with product liability suits and suing retailers over proprietary trade issues, Farouk is no stranger to lawsuits. This time, their product “Blondest Blonde” was alleged to have caused Amber a visit to the emergency room for second and third degree burns all over her scalp. She later had to undergo skin grafts in an attempt to mitigate the damage to her head. For a 13 year old girl, the degree of embarrassment, heartbreak, and years of physical and emotional scarring are likely irreparable.
A few years ago, Amber Wright filed her suit in federal court and had the suit dismissed on Daubert and other evidentiary grounds. She appealed to the 11th Circuit in an attempt to save her case. The 11th Circuit opinion, issued last week, opens with quotes from a Bob Dylan song; a seemingly light-hearted opener for the case of an innocent teenage girl’s severe chemical burns. However, all was not glim as the 11th Circuit issued some evidentiary rulings that will keep the case alive for the time being.
It seems apparent that the Wright’s lawyers are operating on a relatively slim budget. The primary piece of scientific evidence, the opinion of a chemist named Mort Westman, was booted due to failure to meet the Daubert federal scientific evidence standard. Wright’s lawyers did not appeal this Daubert ruling, which one might read as a concession on the lack of validity of the testimony that Westman had to offer. With Westman’s opinion excluded, the lower court booted the case on summary judgment. However, upon appeal, Amber’s case was saved by a series of evidentiary rulings. Apparently, the lower court shut the case down too soon. In its review, the 11th Circuit found that a critical affidavit should not have been excluded. This affidavit involved Farouk’s own concessions of the dangerous results that can occur when “Blondest Blonde” undergoes a chemical reaction and also showed that Farouk was aware of the problem. With this evidentiary finding, Amber’s case was revived and sent back to the lower court.
For Amber’s sake, perhaps this ruling will reinvigorate her case and allow the suit to go forward. However, there is still a chance that the earlier Daubert ruling, which was not actually appealed, may be too strong to overcome. Hopefully, Amber’s lawyers still have a few cards left to play.
Robert Price is an associate with the firm of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. Robert focuses his practice on mass torts and product liability. He is part of the Plaintiffs’ Steering Committee for the Federal Multidistrict Transvaginal Mesh Litigation and is actively involved in leadership in state court mesh litigation in addition to working in other cases involving bad drugs and defective medical devices.