199 Cal. App. 4th 395
Cal. Ct. App.2011Background
- Hennigan hired White for permanent makeup on eyebrows and eyelids; procedure involved implantation of pigment.
- Pigments used included Brown Suede (Premier True Color Concentrate) and Black Magic; Premier manufactured the pigments.
- Label warned patch testing required; White did not perform patch tests unless clients claimed sensitivity.
- Hennigan developed granulomas, infection, and eyelid droop months after treatment; prednisone offered partial relief but side effects ensued.
- FDA issued a Talk Paper in July 2004 warning about adverse reactions to Premier pigments; no recalls ordered
- Court granted White summary judgment on negligence and strict products liability; denied reconsideration despite new declarations
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission of patch test proximately caused injury | Hennigan argues And’ra duty to patch test creates liability if omitted | White contends patch test omission cannot be causally linked to injury given delayed reaction | Not triable; no evidence causation |
| Whether pigments were defective for strict products liability | Pigments defective based on doctors' affidavits linking allergy to pigment | Allergic reaction alone insufficient to prove defect; no evidence of design/manufacturing flaw | No triable issue; pigments not shown defective |
| Whether White can be liable as seller of product under strict liability when service predominates | Primary objective was to obtain pigment and White acted as seller | Primary objective was service; strict liability inapplicable | Correct to grant summary judgment; service predominates |
| Whether trial court abused by denying motion for reconsideration | New declarations showed new facts supporting reconsideration | Declarations not new facts; could have been raised earlier | No abuse; reconsideration denied |
Key Cases Cited
- Romero v. And’ra, 216 Cal.App.2d 295 (Cal. Ct. App. 1963) (res ipsa-like duty to follow manufacturer’s patch-test directions)
- Ferrari v. Grand Canyon Dories, 32 Cal.App.4th 248 (Cal. Ct. App. 1995) (strict liability doctrine not extended to purely service transactions)
- Miller v. Los Angeles County Flood Control Dist., 8 Cal.3d 689 (Cal. 1973) (strict liability elements require defective product proof)
- Adelman-Tremblay v. Jewel Companies, Inc., 859 F.2d 517 (7th Cir. 1988) (allergic reaction without defect does not prove strict liability)
- Saelzler v. Advanced Group 400, 25 Cal.4th 763 (Cal. 2001) (evidentiary standards for summary judgment; burden shifting)
- Guz v. Bechtel National, Inc., 24 Cal.4th 317 (Cal. 2000) (evidence in summary judgment; consider admissible evidence)
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (Cal. 2001) (summary judgment standard; independent appellate review)
- Starzynski v. Capital Public Radio, Inc., 88 Cal.App.4th 33 (Cal. Ct. App. 2001) (summaries of evidence; appellate review of conflicts)