362 F. Supp. 3d 1182
U.S. Cir. Ct.2018Background
- Four named plaintiffs (Franks - MS; Taylor - LA; Bowden and Bowens - AL) sued makers of Clairol Balsam Color alleging allergic reactions, scalp burns, hair loss, and related claims including unjust enrichment, MMWA, express/implicit warranty, fraud, negligence/design and failure-to-warn, and ADTPA claims by the Alabama plaintiffs.
- Product packaging and insert contained multiple warnings (e.g., may cause allergic reactions; perform 48‑hour skin allergy test; do not use if prior reaction or sensitive scalp) and a customer contact section.
- Plaintiffs offered two unsworn expert reports (Tackett, Ph.D.; Charlesworth, M.D.) criticizing the adequacy of warnings and the 48‑hour patch test; defendants moved to strike them.
- Defendants moved for summary judgment on class claims (including a challenge to ADTPA class treatment), and on individual claims of each plaintiff invoking state product‑liability statutes (MPLA, LPLA), jurisdictional thresholds for MMWA, statute of limitations, and causation/read‑and‑heed doctrines.
- Court denied motions to strike the unsworn expert reports (they can be reduced to admissible form) and denied broad challenges to ADTPA class claims based on Eleventh Circuit precedent allowing Rule 23 to govern in federal court; several individual claims were granted or denied as summarized below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of unsworn expert reports | Tackett and Charlesworth opinions should be considered on summary judgment | Unsigned, unsworn reports violate affidavit/declaration rules and should be stricken | Denied motion to strike; materials may be considered because they can be reduced to admissible form at trial (Rule 56/703) |
| Whether ADTPA class bar preempts Rule 23 in federal court | Plaintiffs rely on Lisk: Rule 23 applies in federal court; ADTPA class ban is procedural | Defendants: 2016 amendment made ADTPA class bar a "substantive limitation" and abrogates Lisk | Court follows Lisk reasoning: Rule 23 controls; defendants' motion denied as to ADTPA class claims |
| Franks — MMWA jurisdictional threshold | Franks asserts MMWA claim | Defendants: amount‑in‑controversy requirements for individual MMWA claim unmet | Granted: MMWA claim dismissed for lack of federal jurisdiction |
| Franks — state product claims (design/failure‑to‑warn, implied warranty, fraud) | Franks contends product/warnings were defective and she relied on them | Defendants: MPLA precludes or subsumes common‑law claims; plaintiff failed to show feasible alternative design or reliance/read‑and‑heed; plaintiff ignored warnings/patch test | Court: Claims premised on design/failure‑to‑warn/implied warranty/fraud dismissed under MPLA analysis; unjust enrichment and express warranty survive summary judgment |
| Taylor — timeliness under LPLA and adequacy of LPLA theories | Taylor argues later discovery and tolling; asserts design, warning, warranty claims | Defendants: one‑year prescriptive period began at first symptoms (Oct 20, 2016); many claims fall outside LPLA or lack essential elements (alternative design, causation, reliance); MMWA threshold unmet | Court: All Taylor claims dismissed as time‑barred except discrete inadequate‑warning theory; on the merits LPLA claims fail (design and warning causation, express warranty) — summary judgment granted in full |
| Bowden and Bowens — ADTPA timeliness and merits | Plaintiffs say they lacked knowledge of labeling issues until meeting counsel in early 2017; Tackett's expert raises adequacy questions | Defendants: claims filed more than one year after reactions; some plaintiffs didn’t read warnings so cannot prove causation/read‑and‑heed; warnings were specific and repeated | Court: Other claims waived; ADTPA claims not dismissed on timeliness (jury question whether discovery occurred within one year). Bowden loses (didn't read warnings); Bowens survives ADTPA claim (read warnings; factual disputes on compliance and causation) |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden and standards)
- Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393 (relation of Rule 23 to state statutory class bars)
- Lisk v. Lumber One Wood Preserving, LLC, 792 F.3d 1331 (11th Cir. 2015) (Rule 23 controls over ADTPA class ban in federal court)
- E.R. Squibb & Sons, Inc. v. Cox, 477 So.2d 963 (Ala. 1985) (Alabama read‑and‑heed doctrine for warnings)
- Elliott v. El Paso Corp., 181 So.3d 263 (Miss. 2015) (MPLA subsumes common‑law product claims)
- Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994 (11th Cir. 1992) (summary judgment inferences and non‑movant evidence)