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Arkansas Court of Appeals Affirms Summary Judgment Where Plaintiff Could Not Show More than "Mere Possibility" That De-Frizzer Caused Hair to Ignite

September 12, 2016

The core theory of many products liability cases is a combination of res ipsa locuter and expert testimony supporting the possibility that the plaintiff’s version of events may have occurred. A recent decision of the Arkansas Court of Appeals, Chandler v. L’Oreal USA, 2016 Ark. App. 372 (Aug. 31, 2016), highlights fatal flaws in this approach.

In Chandler, a thirteen-year old straightened her hair using an anti-Frizz Serum and a metal straightening comb with a wooden handle and that had been heated over an open flame on a gas stove. She suffered third-degree burns and permanent disfiguration when flames engulfed her upper body. Plaintiff alleged the anti-frizz serum contained chemicals known to be flammable and failed to warn of the alleged combustible nature of the product.

Defendants moved for summary judgment. The presented expert test results showing that the anti-frizz serum did not cause hair to ignite when used under the conditions similar to those described by plaintiff. The defense expert eliminated ignition of the anti-frizz serum by a hot comb as a cause of the fire and identified two alternative causes of ignition – the open flame on the gas stove, and smoldering or a small flame on the comb’s wooden handle.

Plaintiffs relied on the undisputed fact that the fire occurred and on the expert testimony of Dr. Harold Zeliger. Dr. Zeliger testified that the plaintiff’s hair caught fire due to auto-ignition of chemicals in the anti-frizz serum, and that he reached this conclusion based on the Material Safety Data Sheets and ignition characteristics for the chemicals used in the anti-frizz serum. Dr. Zeliger did not, however, inspect the comb or the stove. He did not know the comb had a wooden handle or that the handle was charred. He did not perform any independent tests to support his conclusions. Ultimately, Dr. Zeliger admitted that he did not consider or rule out any alternative explanations for how plaintiff’s hair caught fire.

The Arkansas Court of Appeals affirmed summary judgment. Summarizing Arkansas causation law for strict products liability claims, the Chandler court observed that strict products liability eliminates negligence but does not prove the plaintiff’s case. A plaintiff must still prove injury from the product. “‘The mere possibility that his may have occurred is not enough, and there must be evidence from which the jury may reasonably conclude that it is more probable than not….’” Chandler, 2016 Ark. App. 372, *9. In this case, the evidence and expert testimony showed that there were several possible sources of the fire, but failed to show that the anti-frizz serum was the more probable cause of the plaintiffs’ injuries. This amounted to causation based on mere speculation and conjecture, and summary judgment was appropriate. Chandler, 2016 Ark. App. 372, * 12.

The Chandler decision can be found here.