Burn Lawsuit Against Maker of Hair Dye

In good news from our federal 11th Circuit Court of Appeals this week, a girl will have another shot at justice in her product liability case.

Amber Wright was 13-years-old when she went to a hair salon in Carollton, Georgia. It was February 2005, and she wanted blonde highlights. The licensed cosmetologist used a product manufactured by a company called Farouk Systems named “Blondest Blonde. The cosmetologist had used the product before and didn’t notice anything out of the ordinary, although Amber told her about feeling a burning sensation on her head. Things got worse from there, and nine days later the 13-year-old was in the emergency room with second and third degree burns on her scalp. Doctors stated that Amber had chemical burns, which can develop over time. Eventually, her burns were so severe that surgeons had to do a skin graft on her scalp.

Amber sued Farouk Systems for a defective product and failure to warn about potential scalp burns. Her trial had problems from the start, however. A chemist hired to testify was excluded under a Daubert ruling, which means the court found it did not meet scientific evidence standards. Her lawyers did not challenge that exclusion in the trial court. The lower court found that thus Amber had abandoned her product defect claims and therefore all her other evidence was inadmissible, and granted Farouk Systems summary judgment.

On appeal, Amber’s team argued that one of the discounted pieces of evidence, an affidavit from a hair salon owner who talked with Farouk Shami, the chairman of Farouk Systems, should have been allowed. The salon owner stated that Mr. Shami said it was “highly likelythat the product Blondest Blonde could separate during shipment, which would cause a heightened or accelerated chemical reaction. The trial court found that this affidavit was hearsay, but Amber claimed it was an admission by a party opponent and therefore should be allowed in.

The Court of Appeals this week decided in Amber’s favor and remanded her case back to the trial court for further consideration. Judge Edward Carnes’ decision started with a Bob Dylan quote, “Bob Dylan’s recognition that €˜[b]ehind every beautiful thing there’s been some kind of pain’ might seem painfully ironic to Amber Wright. Her quest for what she deemed to be more beautiful hair allegedly led not just to pain but also to emotional €˜scars that the sun didn’t heal,’ all of which led to this lawsuit.Later in the decision, Judge Carnes stated that the trial court had abused its discretion in excluding the affidavit testimony. The trial court did not properly consider arguments on the issue of the affidavit and should do so on remand. The Court of Appeals affirmed the summary judgment on the failure to warn claim. At least now, Amber will have another chance at justice after such a traumatic experience.

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