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Viscusi v. Proctor & Gamble

July 16, 2007


The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge


Plaintiff Mary Viscusi brings this diversity action against defendant P&G -- Clairol, Inc. ("Clairol"), improperly named herein as "Proctor & Gamble," for personal injuries she allegedly sustained after applying Clairol Nice 'N Easy "Natural Black" hair dye ("the product") to her hair on March 30, 2002. Ms. Viscusi appears to raise claims of negligence, strict product liability and breach of warranty. Clairol has moved to exclude the testimony of plaintiff's proffered expert, and also for summary judgment. For the reasons set forth below, defendant's motions are granted.


1. The Incident

On March 30, 2002, plaintiff applied the product to her hair, allegedly "using the instructions inside the box." (Wydysh Aff. Ex. E, Answers to Def.'s First Interrogs. to Pl., ¶ 3.) The instructions provided with the product instruct the user to perform an "allergy test" forty-eight hours prior to using the product: "Just as some people are allergic to foods and medicines, a small number of people may show an allergic reaction to hair colorants. So, to help minimize your risk, it is important to perform the skin allergy test 48 hours prior to every application." (Wydysh Aff. Ex. H) (emphasis in original.) To perform the allergy test, mix a small amount of the product (ColorSeal Activating Cream and ColorSeal Formula), apply it to the inside of the elbow, allow it to dry, do not wash the site for forty-eight hours, and examine the site after forty-eight hours to see if there has been a reaction. (Id.) "If no reaction occurs, you are ready to color. If a rash or redness, burning or itching occurs you may be allergic and you must not use this product." (Id) (emphasis in original.)

Plaintiff claims to have performed the allergy test, as set forth in the instructions, at approximately 9:00 a.m. on March 28, 2002. (Wydysh Aff. Ex. E ¶ 10.) Plaintiff did not suffer an allergic reaction during the forty-eight hours following the test, and felt no physical discomfort during the twenty-five minutes the product remained in her hair. (Wydysh Aff. Ex. F,Viscusi Dep. 20: 10-14, 21: 7-18, 25: 20-22, Mar. 7, 2006.) However, plaintiff first felt discomfort around 12:00 a.m. on the morning of March 31, 2002, approximately fifteen hours after plaintiff had rinsed the product out of her hair. (Id. at 33: 6-23.) When plaintiff awoke later that morning, her scalp was "burning and itching," and her face was "swollen and red blisters and sores [were] evident on plaintiff's face and neck." (Wydysh Aff. Ex. E ¶ 15.) After using the product, plaintiff discarded the package and the remaining ingredients. (Wydysh Aff. Ex. F 16: 12-20.)

2. The Product

According to Dr. Marvin Kaminsky, a professional toxicologist, the product contains p- phenylenediamine, n, n, - bis(2-hydroxyethyl)-p-phenylenediamine, and other conventionally used cosmetic hair dye excipients. (Kaminsky Aff. ¶¶ 9, 21(d).) Although the colorants contained in the product have a history of safe use by consumers, as contact dermal allergens, they may cause contact dermatitis in a small percentage of persons. (Id. at ¶ 10.) For instance, out of the 24,508,300 units of Clairol Nice 'N Easy sold in 2001, (Fritz Aff. ¶ 4), Clairol received 665 consumer reports of alleged allergic reactions following the use of the product, none of which have been medically verified by defendant. (Schlosser Aff. ¶¶ 5, 6.) Clairol, however, received no consumer reports of "nerve ending damage" following the use of the product in 2001. (Id. at ¶ 7.)

3. Medical Treatment

On April 14, 2002, fourteen days after plaintiff's symptoms allegedly began, plaintiff went to the emergency room at Parkway Hospital seeking treatment for "severe [heart] palpitations," not for complaints concerning her scalp. (Wydysh Aff. Ex. F 37: 22-25, 38: 2-3.) Parkway Hospital's "final diagnosis" was that plaintiff suffered from "anxiety disorder." (Wydysh Aff. Ex. I.) Plaintiff was treated with Xanax, an anti-axiety agent, and released. (Id.)

Plaintiff began treating with Dr. Dmitry Khasak, a dermatologist, on April 16, 2002. In his office note dated April 25, 2002, Dr. Khasak's "assessment" was that plaintiff suffered from "psychomatic Sx's [symptoms]" and "mild D [depression]." (Wydysh Aff. Ex. J.) Dr. Khasak further noted on May 2, 2002 that plaintiff was "very anxious . . . displays sudden crying spells," and on May 7, 2002 that plaintiff "still occasionally has burning on scalp [and] face/back." (Id.) However, Dr. Khasak found "no dermatological manifestations" and made an assessment of "psychoneuro dermatosis." (Id.) Dr. Khasak advised plaintiff to consult a psychiatrist. (Id.)

On May 25, 2002, plaintiff was admitted to the Charles C. Harris Skin and Cancer Unit at New York University Medical Center. Plaintiff was discharged that same day and the diagnosis at the time of discharge was "anxiety." (Pl.'s Aff. Ex. J.) On June 3, 2002, plaintiff also consulted with Dr. Andrew G. Franks, Jr., a dermatologist. (Pl.'s Aff. Ex. K.)

Plaintiff was initially seen by Dr. Marina Neystat, a neurologist, on July 22, 2002. Dr. Neystat concluded that plaintiff's "subjective complaints are a result of somatization disorder, probably from underlying depression with psychotic features and symptoms and features of anxiety." (Wydysh Aff. Ex. K.) Dr. Neystat further noted that plaintiff "will greatly benefit from a psychiatric consult . . . to alleviate her symptoms, because I do believe that she is in great need of psychiatric help," and gave her Neurontin, a "good mood stabilizer." (Id.) On August 7, 2002, Dr. Neystat noted under "Diagnoses" that plaintiff suffered from "depression" and "somatization disorder." (Id.)

Plaintiff saw another neurologist, Dr. Richard Blanck, on September 3, 2002. After conducting a "detailed neurological examination," Dr. Blanck stated:

Ms. Viscusi complains about chronic intermittent scalp burning. I am uncertain as to the exact etiology of her symptoms and signs, but currently I find no evidence to support the diagnosis of central or peripheral nervous system malfunction. I suspect that she may have a local inflammation of the scalp related to an allergic reaction to hair coloring dye as she suggests. She also has considerable anxiety about her problems which may be contributing to the genesis of her problems as well. (Wydysh Aff. Ex. L.) Dr. Blanck also referred plaintiff to Dr. Brian Hainline, a neurologist specializing in chronic pain. (Id.) Dr. Hainline noted that although plaintiff "has neuropathic pain . . . from her reaction to the hair dye," there is no evidence of "any scalp or hair follicle damage," and he did "not suspect any type of reversible nerve damage." (Pl.'s Aff. Ex. A 2-3.)

Dr. Mark Gurtovy, a psychiatrist, began treating plaintiff on October 11, 2002. The "Behavorial Health Evaluation" prepared by Dr. Gurtovy on October 11, 2002 noted that plaintiff's "chief complaint" was that she was "very depressed and anxious." (Wydysh Aff. Ex. M.) Plaintiff's symptoms consisted of "depressed mood," "little sleep," "concentration/memory problems," "panic attacks," and "anxiety." (Id.) Dr. Gurtovy's diagnoses, as of October 11, 2002, were depression and panic disorder agoraphobia. (Id.) On May 20, 2005, over two and one-half years after plaintiff's treatment with Dr. Gurtovy began, Dr. Gurtovy's diagnosis of plaintiff remained panic disorder agoraphobia. (Id.)

4. Dr. Leon Weinstein

Plaintiff proffers her "personal physician, Dr. Leon Weinstein," whom she first saw on April 26, 2002, complaining of "anxiety and palpitations," as an expert witness. (Wydysh Aff. Ex. E ¶ 22, Ex. G 37: 10, 49: 9.) In a letter dated February 22, 2005, Dr. Weinstein states, in relevant part:

Mary Viscusi dyed her hair with Clairol Nice 'N Easy on March 30, 2002. The next day, March 31, 2002, as a result of using the dye she developed burning of the scalp, face, neck, eyes and upper back. Rash and blisters were evident on her face and neck. The physical and psychological consequences of what happened to her using the dye caused her irreparable harm and suffering. She suffered nerve ending damage to her scalp, face, neck and upper back. (Wydysh Aff. Ex. N.)

Dr. Weinstein received his Doctor of Medicine from Tashkent Medical Institute in 1984. (Wydysh Aff. Ex. G 12: 6, 20, 13: 1.) Thereafter, he spent three years at Tashkent's Dermatology and Venereal Disease Institute studying venereal diseases and fungal infections. (Id. at 14-15.) At no time during his education did Dr. Weinstein study, or perform research on, the neurological implications of hair dye on the skin, the allergic potential of hair dye, or the allergic properties of hair dye on the skin. (Id. at 13-14.) Dr. Weinstein is not Board Certified, nor does he consider himself to be an expert in, dermatology, allergy, neurology, or epidemiology. (Id. at 17, 23-27.) Dr. Weinstein has never authored any publications on the relevant specialties, and has never been involved in "peer review" of publications by others on these specialties. (Id. at 18- 19.) He also has never been qualified as an expert in any court in dermatology, allergy, neurology or epidemiology, and has never provided testimony concerning hair dye, nor worked or consulted on a litigated matter involving hair dye or allergic reactions to hair dye. (Id. at 28, 32.) Rather, Dr. Weinstein, an internist, practices as a "primary care physician," mostly treating chronic conditions such as diabetes and high blood pressure, as well as acute problems such as aches and colds, and his particular specialty is physical therapy. (Id. at 22: 4-18, 23: 13-21.) Finally, Dr. Weinstein did not inspect the hair dye used by plaintiff in this case, he did not read any scientific or professional publications concerning the possible negative effects of the use of hair dye, and he did not speak with any physicians who have experience treating allergic or neurological reactions to hair dye. (Id. at 34-35.)

In reaching his opinion that, "as a result of using the dye [plaintiff] developed burning of the scalp, face, neck, eyes and upper back," Dr. Weinstein relied upon the records contained in plaintiff's file, and the "patient's words and clinical examination only." (Id. at 9-10, 36: 11-12; Ex. N.) Dr. Weinstein never inspected either the hair dye used by plaintiff or plaintiff's scalp. He never observed either a rash or blister on plaintiff's face or neck, and he never conducted any experiments or tests in relation to plaintiff's claims of physical injury. (Wydysh Aff. Ex. G 34: 3-5, 35: 11-14, 36: 22-24, 37: 5, 38-39.) Moreover, Dr. Weinstein never conducted any psychological testing of plaintiff in reaching the opinion that the "psychological consequences of what happened to [plaintiff] using the dye caused her irreparable harm and suffering," nor did he perform any tests or nerve conduction studies in concluding that plaintiff had suffered nerve-ending damage. (Id. at 38-39, 46-48.)

Upon further questioning, Dr. Weinstein acknowledged that he relied on (1) Dr. Neystat's July 11, 2002 report, which states that plaintiff's subjective complaints are a result of the somatization disorder, recommends that plaintiff seek psychiatric consultation, and prescribes Neurontin, and (2) Dr. Blanck's September 3, 2002 report, in formulating his opinion that plaintiff suffered "nerve ending damage." (Id. at 41: 3-10, 43: 12-19.) Based on Dr. Neystat's report, Dr. Weinstein "assume[d] [that Dr. Neystat] wanted to treat [plaintiff's] peripheral neuropathy . . . nerve ending damage," because neurontin is a "medication, which we usually use for peripheral neuropathy." (Id. at 41: 12-16, 42: 25, 43: 1.) Dr. Weinstein focused on the "clinical status," or "anxiety, nervousness, and depression," and the "subjective complaints" mentioned in Dr. Blanck's report in concluding that ...

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