As Judge Ed Carnes notes this week, "behind every beautiful thing there's been some kind of pain."
That's right: Our favorite Eleventh Circuit jurist is quoting Bob Dylan as he gives a dissatisfied bottle blonde another shot at her products liability claim.
The plaintiff, Amber Wright, went to a licensed master cosmetologist at a Georgia salon for blonde highlights. Nine days after Wright had her hair colored, she went to the emergency room complaining of a burn to her scalp. She was diagnosed with a second and third degree burn to her scalp and was referred to the Grady Memorial Hospital Burn Center where she was diagnosed with a full thickness burn to the scalp. Wright later underwent a surgical procedure to place a skin graft over the burn.
Wright claims that a Farouk Systems hair bleaching product called "Blondest Blonde" burned her scalp, causing her to suffer physical, mental, and emotional pain.
Wright sued Farouk Systems for (1) negligent design and manufacture, (2) negligent failure to warn, (3) strict liability, and (4) strict liability failure to warn. She retained an expert -- chemist Mort Westman -- who was willing to testify that Blondest Blonde contains isolated areas of inordinately high reactivity, which he called "hot spots." According to Westman, those hot spots can generate unintentional heat through a chemical reaction during the mixing process, which could have caused Wright's burn.
Farouk filed a motion for summary judgment, along with a Daubert motion to prevent Westman from testifying as an expert. The district court granted the Daubert motion, excluding Westman's opinion testimony about the hot spots. Wright did not contest the ruling.
The district court then granted Farouk's motion for summary judgment on all of Wright's claims.
And that's how we arrived at this appeal.
Wright's case now hinges on the admissibility of a statement the Farouk Systems chairman allegedly made to a salon owner. Wright contends that the district court abused its discretion by summarily ruling that she had not shown the statement was admissible hearsay.
In 2006, Farouk Shami reportedly told salon owner Rosemary Weiner that it was "highly likely" that Blondest Blonde could separate during transport, potentially causing an "untoward or accelerated chemical reaction." Wright maintains that Farouk's statement to Weiner is admissible as an admission by a party opponent.
The Eleventh Circuit agreed with Wright that the district court abused its discretion in excluding Shami's statements on hearsay grounds, but that doesn't mean that her case can move forward.
Farouk Systems also claims that, even if Shami's statements to Weiner are not hearsay, the district court should not have considered them because Wright failed to timely disclose Weiner as a witness. The appellate court remanded the matter for a ruling on the timely disclosure issue.
Take what you will from this opinion. The lesson we learned today? Disclose your witness list ASAP. And don't go too blonde.
- Amber Wright v. Farouk Systems (Eleventh Circuit Court of Appeals)
- Eleventh Circuit Affirms Pay-for-Delay, Quotes Biggie Smalls (FindLaw's Eleventh Circuit Blog)
- Cop Who Accidentally Shot Bystanders Gets Qualified Immunity (FindLaw's Eleventh Circuit Blog)