United States District Court, S.D. Alabama, Northern Division
ANGELA CARTER, ELLA VALRIE, and DORA BLACKMON, individually and on behalf of others similarly situated, Plaintiffs,
L'OREAL USA, INC., and SOFT SHEEN-CARSON, LLC, Defendants.
MEMORANDUM OPINION AND ORDER
F. MOORER UNITED STATES DISTRICT JUDGE
pending before the Court is Defendants' Motion for
Summary Judgment (Doc. 154, filed December 7, 2018) and their
Amended Motion for Summary Judgment (Doc. 215, filed 9/3/19),
which incorporates by reference the initial motion.
Accordingly, for purposes of this opinion, the motions will
be considered as a single motion. The Court has reviewed all
the written pleadings, motions, responses, replies, and all
relevant law, and finds the motion is due to be GRANTED IN
PART, as set out below. The remainder of the motion is due to
be DENIED WITHOUT PREJUDICE with leave to refile as a single
motion, as instructed below.
Parties and Jurisdiction
plaintiffs-Angela Carter, Ella Valrie, and Dora Blackmon,
individually and on behalf of a putative class
(“Plaintiffs”)-assert claims pursuant to 28
U.S.C. § 1332(d), under which district courts have
original jurisdiction over any civil class action where the
matter in controversy exceeds $5, 000, 000, exclusive of
interest and costs, and any member of a class of plaintiffs
is a citizen of a State different from any defendant.
See 28 U.S.C. § 1332(d)(8) (“This
subsection shall apply to any class action before or after
the entry of a class certification order by the court with
respect to that action.”). The parties do not contest
either subject matter or personal jurisdiction and adequate
support exists for both.
Background and Procedural History
Angela Carter filed this action on September 30, 2016, on
behalf of herself and similarly situated individuals, raising
various claims against the defendants, L'Oreal USA, Inc.
(“L'Oreal”), and Soft Sheen-Carson, LLC
(“Soft Sheen”) (collectively,
“Defendants”). Doc. 1. Cases brought by other
plaintiffs eventually were consolidated with Carter's.
Docs. 38, 48, 88. In a second amended complaint, filed on
January 9, 2017, Plaintiffs assert various claims against
Defendants in relation to the Amla Legend Rejuvenating Ritual
Relaxer Kit (“relaxer kit”), a hair-relaxer kit
marketed primarily to African American women and sold
nationally through various retailers under the Soft
Sheen-Carson Optimum Salon Haircare brand. Doc. 29.
relaxer kit has five (5) components-scalp protector, relaxer
base, neutralizing shampoo, conditioner, and oil
moisturizer-which consumers are instructed to apply in order
in a single session to achieve the desired result. Plaintiffs
assert that the product is promoted as an “easy no-mix,
no-lye relaxer kit that ensures an easier relaxing process
for unified results and superior respect for hair fiber
integrity, ” and the line of Amla Legend products, of
which the relaxer kit is a part, and the amla oil for which
they are named, are variously promoted as a “secret
ritual for hair rejuvenation” with “intense
moisture [that] will rejuvenate every strand, leaving you
with thicker-looking, healthier hair, ” and with
“unique properties [that] prevent breakage, restore
shine, manageability and smoothness.” Id. at
1-2. Plaintiffs allege that, contrary to those assertions,
the relaxer kit causes significant hair loss and skin and
scalp irritation, including burns and blistering, due to an
inherent design or manufacturing defect.
aver that, despite the “no-lye” representations
on the relaxer-kit packaging, the relaxer kit actually
contained sodium hydroxide (or lye) and the instructions for
applying the product, and for pre-testing the product on a
strand of hair (the “strand test”), are
inadequate. Plaintiffs state that the product contains
caustic and/or dangerous ingredients that can lead to the
injuries stated and is unfit for its intended use. Further,
Plaintiffs allege Defendants failed to disclose material
information to consumers regarding the dangers of the product
and, instead, made material misrepresentations as to the
characteristics, ingredients, safety, and value of the
product. Finally, Plaintiffs state that they would not have
purchased the relaxer kit if Defendants had adequately
disclosed the dangers associated with it.
in their operative complaint, Plaintiffs assert six (6)
claims against Defendants: (1) violation of the Magnuson-Moss
Warranty Act, 15 U.S.C. §§ 2301-2312 (Count II);
(2) breach of express warranty (Count III); (3) breach of
implied warranty (Count IV); (4) violation of the Alabama
Deceptive Trade Practices Act (“ADTPA”), Ala.
Code §§ 8-19-1 through -15 (Count V); (5) fraud
(Count VI); and (6) negligent design and failure to warn
(Count VII). Doc. 29. Plaintiffs seek damages and equitable
remedies on behalf of themselves and the putative class of
consumers who bought the relaxer kit.
filed a motion for class certification and a motion to
appoint class counsel on December 7, 2018. Docs. 148-150.
That same day, Defendants filed a motion for summary judgment
seeking dismissal or partial dismissal of all the claims
asserted by Plaintiffs as well as all claims for injunctive
and declaratory relief and punitive damages. Docs. 154-159.
Beginning on December 7, 2018, the parties filed a succession
of motions seeking to exclude expert witnesses from offering
reports or testimony, and other motions related to expert
witnesses. See Docs. 151, 164, 166, 168, 171, 181,
183, 187, 194, 195, 197, 201, 207. The parties had the
opportunity for responses and replies, a hearing was held,
and the Court ruled. Docs. 205, 211. Following the
Court's omnibus order excluding portions of expert
reports and testimony, the parties were instructed to file
amended motions for class certification, appointment of class
counsel, and summary judgment, making any necessary changes
in light of the Court's Order. Doc. 211.
Plaintiffs filed their amended motion for class certification
and amended motion to appoint class counsel, which superseded
the prior motions and remain pending on the docket. Docs.
212-214. Defendants responded to the class certification
motion on September 20, 2019, and Plaintiffs replied
September 27, 2019. Docs. 220, 221. On September 3, 2019,
Defendants filed an amended motion for summary judgment that
incorporates by reference the prior motion. Doc. 215. Thus,
instead of a stand-alone motion, both the original and
amended motions remain pending on the docket. Plaintiffs
filed a response to the amended motion for summary judgment,
and Defendants replied. Docs. 216, 217. The Court carefully
reviewed the pleadings, motions, responses, and replies on
the matter. After such review, the Court proceeds with the
summary judgment request in part, as discussed below.
Motions for Summary Judgment
their initial motion for summary judgment Defendants argue,
first, that Plaintiffs' product liability claims, which
are governed by the Alabama Extended Manufacturers'
Liability Doctrine (“AEMLD”), fail because,
inter alia, Plaintiffs cannot prove the relaxer is
defective or unreasonably dangerous. Doc. 156 at 20.
Specifically, Defendants argue that Plaintiffs fail to
demonstrate any alleged defect, and they cannot establish
that the product is unreasonably dangerous for its intended
purpose. Id. at 20-25.
also argue that Plaintiffs' claim of a design defect
fails because Plaintiffs cannot prove the availability of a
safer, practical alternative formulation that would have
eliminated or reduced the alleged injuries while preserving
the product's utility. Id. at 25. Defendants
argue, as to the failure-to-warn claim, Plaintiffs must, but
cannot, prove that Defendants' warnings were inadequate
and the alleged inadequacy caused Plaintiffs' injuries.
Id. at 26. To show causation, Plaintiffs must
demonstrate that they would have read and heeded different or
additional warnings and instructions, but the evidence shows
that Plaintiffs disregarded warnings and instructions in
various ways. Id. at 27. Moreover, Defendants aver
that Plaintiffs' disregard amounts to contributory
negligence and misuse, both affirmative defenses to Alabama
product liability claims. Id. at 27-28.
argue that, contrary to Plaintiffs' assertion, the
evidence in the record demonstrates that their product is a
“no-lye” relaxer and none of the relaxer kits at
issue contained lye, even in tiny amounts. Id. at
28. Defendants also assert that the relaxer itself does not
use lye, and it is only listed as an ingredient on the label
because small additions of lye are sometimes used to adjust
pH levels in batches of shampoo. Defendants argue that they
never represented to consumers that their relaxer is
risk-free, or that it is safer, less harsh or caustic,
healthier, or gentler than other chemical hair relaxers,
which is required for Plaintiffs' “consumer
deception theory” of their “statutory, warranty,
and fraud claims.” Id. at 29. For example, the
packaging conveys multiple frank safety warnings, including
that the product could cause “serious injury to eyes or
skin, ” “blindness, ” “damage[d]
hair, ” and “permanent hair loss.”
Id. Defendants assert that the evidence demonstrates
that reasonable consumers would not interpret the relaxer
carton in the manner Plaintiffs urge. Id.
also argue Plaintiffs were required to allow them an
opportunity to cure any alleged breach of the Magnuson-Moss
Warranty Act prior to bringing suit, which Plaintiffs failed
to do. Id. at 30. Further, Plaintiffs' Alabama
warranty claims fail for the same reason: Alabama warranty
law expressly provides that a buyer notify a seller of any
breach or be barred from remedy. Id. at 31.
Defendants assert Plaintiffs' Magnuson-Moss claim also
fails on the basis that it is derivative of their Alabama
warranty claims. Id.
next argue Plaintiffs' implied warranty claim is subsumed
by the state's AEMLD because Alabama law does not
recognize a breach of the implied warranty of merchantability
where the product achieves its function, regardless of other
physical harm allegedly caused by the product. Id.
Defendants aver that Plaintiffs' fraud claim fails
because Plaintiffs cannot establish reasonable reliance on
their interpretations of the marketing statements they
challenge. Id. at 32. Defendants assert that
Plaintiffs' claim under the ADTPA is impermissibly
cumulative of their fraud claim because the civil remedies
available from the statute are mutually exclusive of the
remedies available at common law for fraud,
misrepresentation, deceit, suppression of material facts, or
fraudulent concealment. Id. Thus, electing to pursue
common law remedies surrenders any rights or remedies under
the ADTPA. Id.
also argue that Plaintiffs' ADTPA claims are in any case
barred by the statute's one-year statute of limitations.
Id. at 33. Defendants aver, too, that Plaintiff
Carter's fraud and negligence claims are barred by the
two-year statute of limitations applicable to those claims.
Id. at 33-34. Defendants also argue that Plaintiffs
lack standing to pursue injunctive and declaratory relief
and, in any case, Plaintiffs cannot show irreparable injury
that is redressable by those remedies. Id. at 34-36.
Moreover, Defendants assert, Plaintiffs cannot show that they
lack adequate remedies, as required for injunctive relief.
Id. at 36. Finally, Plaintiffs assert that
Defendants are not entitled to punitive damages because ...