Carter v. L'Oreal USA, Inc.

          MEMORANDUM OPINION AND ORDER

          TERRY F. MOORER UNITED STATES DISTRICT JUDGE

         Now 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.

         I. Parties and Jurisdiction

         The 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.

         II. Background and Procedural History

         Plaintiff 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.

         The 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.

         Plaintiffs 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.

         Accordingly, 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.^[1] Plaintiffs seek damages and equitable remedies on behalf of themselves and the putative class of consumers who bought the relaxer kit.

         Plaintiffs 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.

         Accordingly, 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.

         III. Motions for Summary Judgment

         In 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.

         Defendants 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.

         Defendants 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.

         Defendants 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.

         Defendant 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.

         Defendants 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 ...