MEMORANDUM
SUPREME COURT : QUEENS COUNTY
IA PART 6
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PAMELA GRAHAM, et al. INDEX NO. 8123/97
- against - BY: PRICE, J.
NEUTROGENA CORPORATION DATED:
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Defendant Neutrogena Corporation has moved for summary judgment dismissing the complaint against it. Plaintiff Pamela Graham and plaintiff Alton Graham have cross-moved for an order imposing sanctions upon the defendant.
For about twenty years, defendant Neutrogena has sold T/Gel shampoo which is used to treat dandruff and the symptoms of psoriasis and seborrheic dermatitis. T/Gel shampoo's active ingredient, Neutar, is a solubilized coal tar extract refined to remove many of its impurities. The defendant's formulation and labelling of the product conform to FDA guidelines. While coal tar preparations have a long history of generally safe and effective use, rare allergic reactions can occur. On or about November 26, 1996, the plaintiff allegedly suffered abnormal hair loss, itching, burning, scabbing, soreness, and contact dermatitis as a result of using T/Gel. According to the plaintiffs' expert, the defendant should have known for at least ten years that coal tar preparations can cause contact dermatitis and hair loss. From 1994 to 1998, at least seventeen consumers complained to the defendant about hair loss following the use of T/Gel. Nevertheless, complaints about T/Gel have been rare. From 1992 to 1996, the defendant sold an average of 4,500,000 bottles of the shampoo annually and received only one complaint for every 160,000 units sold.
"In the case of the nonpoisonous and reasonably safe product in general use, the duty to warn depends upon whether or not it was reasonably foreseeable by the supplier that a substantial number of the population may be so allergic to the product as to sustain an injury of consequences from its use." (Kaempfe v Lehn & Fink Products Corp., 21 AD2d 197, 200, affd 20 NY2d 818.) Regardless of the relatively small number of individuals who may be allergic to a product, "knowledge or constructive notice of unreasonable danger to users may cause a duty of warning to be imposed * * *." (Holmes v Grumman Allied Industries, 103 AD2d 909, 910.) In all but the most unusual circumstances, the adequacy of warnings is a question of fact in a products liability case. (See, Montufar v Shiva Automation Service, 256 AD2d 607; Harrigan v Super Products Corp., 237 AD2d 882; Cooley v Carter-Wallace, Inc., 102 AD2d 642.) Summary judgment is not warranted when there is an issue of fact which must be tried (see, Alvarez v Prospect Hospital, 68 NY2d 320), and, in the case at bar, there is an issue of fact concerning, inter alia, whether the defendant was under a duty to warn about the possibility of an allergic reaction to T/Gel. The similarity of T/Gel to other coal tar products, which has a bearing on the defendant manufacturer's level of knowledge concerning the risks posed by the use of T/Gel (see, Kaempfe v Lehn & Fink Products Corp., supra), cannot be determined here on the basis of conflicting affidavits from experts. Moreover, whether the plaintiff suffered "an injury of consequences" (see, Kaempfe v Lehn & Fink Products Corp., supra) is also an issue which should be left for trial. The motion papers do not adequately treat that issue, and the plaintiff's deposition testimony permits conflicting inferences or leaves room for speculation. For example, did the plaintiff's hair fully grow back, and, if so, what quality of hair returned? Since the record is unclear concerning the severity of the injuries suffered by plaintiff Pamela Graham, the court cannot determine here whether use of T/Gel created an "unreasonable danger" for her. (See, Holmes v Grumman Allied Industries, supra.) "If the danger of such an allergy is known or should be known to the maker, and if the consequences of the idiosyncrasy are serious enough, reasonable care may well require the taking of some precaution such as warning and instructions for making tests." (Kaempfe v Lehn & Fink Products, supra, 200, quoting Harper & James, Law of Torts, ' 28.8, p. 1551.) (Emphasis added.) Though T/Gel's label did carry a warning concerning possible hair discoloration, "it cannot be said as a matter of law that the warning given was 'fully descriptive and complete' or that it was 'adequate by any standard' * * *." (Cooley v Carter-Wallace, Inc., supra, 649, quoting Wolfgruber v Upjohn Co., 72 AD2d 59, 62.) Indeed, as the plaintiffs persuasively argue, the defendant manufacturer's provision of a warning concerning mere hair discoloration, allegedly a rarer occurrence than irritation and hair loss, and silence concerning more severe adverse consequences of use, may serve to deceive the consumer. (See, Cooley v Carter-Wallace, Inc., supra.) In sum, the case at bar, similar to Cooley v Carter-Wallace, Inc., (supra), a case involving Nair, a depilatory cream, and Holmes v Grumman Allied Industries (supra), presents an issue of fact concerning the duty to warn which precludes summary judgment.
The defendant also failed to establish that it is entitled to judgment as a matter of law on the plaintiffs' cause of action for breach of an express warranty. When a manufacturer makes an express warranty that a product is safe using broad and positive language to do so, then a person who is injured by the product has a cause of action even though he suffered an allergic reaction. (See, Drake v Charles of Fifth Avenue, Inc., 33 AD2d 987 [fingernail application]; Spiegel v Saks 34th Street, 43 Misc 2d 1065, affd 26 AD2d 660 [skin cream]; Tirino v Kenner Products Co., 72 Misc 2d 1094.) In the case at bar, the defendant manufacturer warranted T/Gel to be "gentle to your hair" and "pleasant to use." Defendant Neutrogena portrays itself as the manufacturer of safe and gentle products. From the way the defendant manufacturer represents itself and its product T/Gel, a trier of fact may conclude that an express warranty was given and breached. (See, Drake v Charles of Fifth Avenue, supra; Spiegel v Saks 34th Street, supra.)
Accordingly, the defendant's motion for summary judgment is denied. The plaintiffs' cross motion for an order imposing sanctions is denied.
Short form order signed herewith.
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J.S.C.