Cite as 2017 Ark. 103
SUPREME COURT OF ARKANSAS No. CV-16-824
LAKESHIA CHANDLER and JASMINE Opinion Delivered March 16, 2017 DAVIS APPEAL FROM THE PHILLIPS APPELLANTS COUNTY CIRCUIT COURT V. [NO. CV-2011-209]
WAL-MART STORES INC., L’OREAL HONORABLE RICHARD L. USA, INC., AND L’OREAL USA PROCTOR, JUDGE PRODUCTS, INC. DISSENTING OPINION ON DENIAL APPELLEES OF PETITION FOR REVIEW.
JOSEPHINE LINKER HART, Justice
I dissent from the denial of review in this case because it represents a further erosion
of a litigant’s constitutional right to a jury trial. In the case before us, the court of appeals
affirmed a grant of summary judgment where there were clearly disputed facts and matters
of witness credibility.
Appellant’s complaint averred that thirteen-year-old Jasmine Davis applied Garnier
Fructis Sleek and Shine Anti-Frizz Serum (“serum”) to her hair and then began to comb her
hair with a metal straightening comb, which she had heated on a gas stove. Immediately
after she began combing her hair, Davis’s head, arms, and upper body became engulfed in
flames. The complaint claimed that the serum contains two primary ingredients,
cyclopentasiloxane and dimethiconol, which are known to be flammable. Further, the
complaint alleged that testing had shown that when a hot comb was used on hair treated Cite as 2017 Ark. 103
with the serum, the hair began to smoke. Based on the results of the tests, appellants claimed
that the product was defective and that appellees had failed to adequately warn consumers
about the danger. Appellants asserted claims of strict-product liability, breach of warranty,
strict-product-liability failure-to-warn, negligent failure to warn, and intentional infliction
of emotional distress.
Appellees answered the complaint with a general denial, but did assert affirmative
defenses. In pertinent part, appellees averred that Jasmine Davis had misused the product.
In appellees’ motion for summary judgment, they claimed that the serum did not
contribute to the incident wherein Davis’s hair caught on fire and that appellants could not
demonstrate a genuine issue of material fact to the contrary. In support of their summary-
judgment motion, appellees attached (1) excerpts from Davis’s deposition in which she stated
that her hair had caught on fire after approximately one hour of straightening her hair with
the hot comb while standing next to an open flame on a gas stove that she had used to
periodically reheat the comb; (2) a picture of the comb, which had a charred wooden
handle; and (3) excerpts from the deposition of appellants’ expert, Dr. Harold Zeliger, stating
that he had not seen or inspected the charred comb or the gas stove used by Davis and
further stating that he had not performed any independent investigation or tests to support
his conclusion that Davis’s hair had caught on fire due to the ignition of chemicals in the
serum when the metallic portion of the hot comb was applied. However, Dr. Zeliger
indicated that he reached his conclusions after conducting online research to locate the
Material Safety Data Sheets (MSDSs) for the particular chemicals used in the serum and their
2 Cite as 2017 Ark. 103
respective ignition characteristics. He but admitted that he did not consider or rule out the
alternative possibilities that Davis’s hair had caught on fire when it came into direct contact
with the open flame on the gas stove or that the wooden handle of the comb contained a
spark that had caused her hair to ignite. Appellants also cited the portion of Dr. Zeliger’s
deposition where he admitted that the two components of the serum, linalool and limonene,
that he considered to have low ignition temperatures, were a de minimis amount of the
entire product, although he opined that the presence of these two chemicals was “not
necessarily” irrelevant to the behavior of the serum as whole. Additionally, they noted that
in Dr. Zeliger’s deposition, he could not state with scientific certainty that the comb would
ignite hair coated with the serum under the conditions described by Davis because he was
unable to accurately test this hypothesis.
Also attached to appellees’ summary-judgment motion was a report by appellees’
expert, Dr. Gregory Haussmann, in which he detailed the results of testing that he had
performed to demonstrate that the serum does not cause human hair to ignite when a heated
pressing comb is applied under conditions similar to those described by Davis prior to the
fire. Appellees further included a report by Dr. Christine Wood, appellees’ “human-factor
expert,” concluding that it was reasonable and appropriate for the serum not to have a
combustibility warning and that the directions on the bottle of serum played no causal role
in the fire that caused injury to Davis.
In their response to the summary-judgment motion, appellants attached excerpts from
the deposition of L’Oreal's vice president of Analytical Chemistry and Microbiology, Dr.
3 Cite as 2017 Ark. 103
Henry Kalinoski, who acknowledged that the serum contained certain ingredients that could
be characterized as hazardous and that the serum could be considered to be combustible with
its flash point of 170 degrees. Appellants also attached material from the report and
deposition of their expert, Dr. Zeliger, who opined that the serum itself was a combustible
product; that some components of the product were combustible and others were
flammable; that the serum contained components with low ignition temperatures; that the
combustible components of the product can readily ignite when heated to 170 degrees, a
temperature readily obtained when either a hair dryer or a hot comb is used on one’s hair;
that any flammable components of the product increase the potential for fire when the
product is exposed to an ignition source; that some components of the product will ignite
when subjected to temperatures above the mid-450s and that such temperatures are readily
available when a hot comb is used to heat the hair; that it is foreseeable that a hot comb,
such as the one used by Davis, would be used in combination with the serum to straighten
the hair; that the fire in Davis’s hair was caused by the propensity of the serum to ignite
when subjected to heat of the magnitude expected from its recommended use; and that
L’Oreal had failed to provide any warnings on its label that would alert the user to the
flammable, combustible, and ignition potential of the product. In addition, appellants
attached to their response the serums label, the officialization-and-safety certificate of the
product, and documented complaints of various adverse reactions reported by consumers
following use of the serum.
Reduced to its bare essence, there were facts alleged by appellants concerning how
4 Cite as 2017 Ark. 103
Davis had used the serum supported by the opinion of appellants’ that components of the
serum are combustible and could be ignited when subjected to temperatures that could be
easily obtained when the product is used in the manner described by Davis. The appellees
countered these alleged facts with claims by their expert that he could not replicate the
catastrophic fire that had injured Davis. This is the classic scenario for the denial of summary
judgment, or its reversal on appeal. In summary judgment, we must view the facts in the
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Cite as 2017 Ark. 103
SUPREME COURT OF ARKANSAS No. CV-16-824
LAKESHIA CHANDLER and JASMINE Opinion Delivered March 16, 2017 DAVIS APPEAL FROM THE PHILLIPS APPELLANTS COUNTY CIRCUIT COURT V. [NO. CV-2011-209]
WAL-MART STORES INC., L’OREAL HONORABLE RICHARD L. USA, INC., AND L’OREAL USA PROCTOR, JUDGE PRODUCTS, INC. DISSENTING OPINION ON DENIAL APPELLEES OF PETITION FOR REVIEW.
JOSEPHINE LINKER HART, Justice
I dissent from the denial of review in this case because it represents a further erosion
of a litigant’s constitutional right to a jury trial. In the case before us, the court of appeals
affirmed a grant of summary judgment where there were clearly disputed facts and matters
of witness credibility.
Appellant’s complaint averred that thirteen-year-old Jasmine Davis applied Garnier
Fructis Sleek and Shine Anti-Frizz Serum (“serum”) to her hair and then began to comb her
hair with a metal straightening comb, which she had heated on a gas stove. Immediately
after she began combing her hair, Davis’s head, arms, and upper body became engulfed in
flames. The complaint claimed that the serum contains two primary ingredients,
cyclopentasiloxane and dimethiconol, which are known to be flammable. Further, the
complaint alleged that testing had shown that when a hot comb was used on hair treated Cite as 2017 Ark. 103
with the serum, the hair began to smoke. Based on the results of the tests, appellants claimed
that the product was defective and that appellees had failed to adequately warn consumers
about the danger. Appellants asserted claims of strict-product liability, breach of warranty,
strict-product-liability failure-to-warn, negligent failure to warn, and intentional infliction
of emotional distress.
Appellees answered the complaint with a general denial, but did assert affirmative
defenses. In pertinent part, appellees averred that Jasmine Davis had misused the product.
In appellees’ motion for summary judgment, they claimed that the serum did not
contribute to the incident wherein Davis’s hair caught on fire and that appellants could not
demonstrate a genuine issue of material fact to the contrary. In support of their summary-
judgment motion, appellees attached (1) excerpts from Davis’s deposition in which she stated
that her hair had caught on fire after approximately one hour of straightening her hair with
the hot comb while standing next to an open flame on a gas stove that she had used to
periodically reheat the comb; (2) a picture of the comb, which had a charred wooden
handle; and (3) excerpts from the deposition of appellants’ expert, Dr. Harold Zeliger, stating
that he had not seen or inspected the charred comb or the gas stove used by Davis and
further stating that he had not performed any independent investigation or tests to support
his conclusion that Davis’s hair had caught on fire due to the ignition of chemicals in the
serum when the metallic portion of the hot comb was applied. However, Dr. Zeliger
indicated that he reached his conclusions after conducting online research to locate the
Material Safety Data Sheets (MSDSs) for the particular chemicals used in the serum and their
2 Cite as 2017 Ark. 103
respective ignition characteristics. He but admitted that he did not consider or rule out the
alternative possibilities that Davis’s hair had caught on fire when it came into direct contact
with the open flame on the gas stove or that the wooden handle of the comb contained a
spark that had caused her hair to ignite. Appellants also cited the portion of Dr. Zeliger’s
deposition where he admitted that the two components of the serum, linalool and limonene,
that he considered to have low ignition temperatures, were a de minimis amount of the
entire product, although he opined that the presence of these two chemicals was “not
necessarily” irrelevant to the behavior of the serum as whole. Additionally, they noted that
in Dr. Zeliger’s deposition, he could not state with scientific certainty that the comb would
ignite hair coated with the serum under the conditions described by Davis because he was
unable to accurately test this hypothesis.
Also attached to appellees’ summary-judgment motion was a report by appellees’
expert, Dr. Gregory Haussmann, in which he detailed the results of testing that he had
performed to demonstrate that the serum does not cause human hair to ignite when a heated
pressing comb is applied under conditions similar to those described by Davis prior to the
fire. Appellees further included a report by Dr. Christine Wood, appellees’ “human-factor
expert,” concluding that it was reasonable and appropriate for the serum not to have a
combustibility warning and that the directions on the bottle of serum played no causal role
in the fire that caused injury to Davis.
In their response to the summary-judgment motion, appellants attached excerpts from
the deposition of L’Oreal's vice president of Analytical Chemistry and Microbiology, Dr.
3 Cite as 2017 Ark. 103
Henry Kalinoski, who acknowledged that the serum contained certain ingredients that could
be characterized as hazardous and that the serum could be considered to be combustible with
its flash point of 170 degrees. Appellants also attached material from the report and
deposition of their expert, Dr. Zeliger, who opined that the serum itself was a combustible
product; that some components of the product were combustible and others were
flammable; that the serum contained components with low ignition temperatures; that the
combustible components of the product can readily ignite when heated to 170 degrees, a
temperature readily obtained when either a hair dryer or a hot comb is used on one’s hair;
that any flammable components of the product increase the potential for fire when the
product is exposed to an ignition source; that some components of the product will ignite
when subjected to temperatures above the mid-450s and that such temperatures are readily
available when a hot comb is used to heat the hair; that it is foreseeable that a hot comb,
such as the one used by Davis, would be used in combination with the serum to straighten
the hair; that the fire in Davis’s hair was caused by the propensity of the serum to ignite
when subjected to heat of the magnitude expected from its recommended use; and that
L’Oreal had failed to provide any warnings on its label that would alert the user to the
flammable, combustible, and ignition potential of the product. In addition, appellants
attached to their response the serums label, the officialization-and-safety certificate of the
product, and documented complaints of various adverse reactions reported by consumers
following use of the serum.
Reduced to its bare essence, there were facts alleged by appellants concerning how
4 Cite as 2017 Ark. 103
Davis had used the serum supported by the opinion of appellants’ that components of the
serum are combustible and could be ignited when subjected to temperatures that could be
easily obtained when the product is used in the manner described by Davis. The appellees
countered these alleged facts with claims by their expert that he could not replicate the
catastrophic fire that had injured Davis. This is the classic scenario for the denial of summary
judgment, or its reversal on appeal. In summary judgment, we must view the facts in the
light of the party resisting summary judgment. Accordingly, we must accept as true Davis’s
account of the accident—that the serum burst into flames when she rand a heated comb
through her hair. It is the jury’s job to decide whom to believe, not circuit court’s.
Likewise, the circuit court, and the court of appeals on review, mishandled the
appellees’ affirmative defenses. Essentially, the circuit court took a portion of the deposition
of appellants’ expert, in which he admitted that he did not completely rule out every other
possible cause of the fire, and decided that the admission warranted dismissal of the case on
summary judgment. Trial lawyers who have actually tried a lawsuit know, or should know,
that a line of questioning of an expert witness in which he or she is confronted by other
possible theories that he or she likely has not considered is nothing more than an
impeachment technique to be used in cross-examination. Again, while these alternative
theories may have undermined the credibility of Dr. Zeliger, whether to believe him should
still remain the province of the jury.
Until 1961 when the General Assembly passed a general summary-judgment statute,
summary judgment was extremely limited. David Newbern & John Watkins, 2 Arkansas
5 Cite as 2017 Ark. 103
Civil Practice & Procedure, § 26:1 (4th ed. 2006). However, from the time the statute was
enacted until the late 1990s, summary judgment was considered a “drastic remedy.” Id. In
1998, this court changed course. Id. (citing Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d
712 (1998) (Supp. op. on denial of rehearing). The Broyles court noted its abandonment of
the “drastic remedy” language, calling summary judgment instead “one of the tools in a trial
court’s efficiency arsenal.” Id. Nonetheless, the Broyles court resisted the kind of deferential
review that the court of appeals has apparently undertaken. It reversed a circuit court, stating
We initially point out the trial court’s use of the wrong standard when deciding to grant summary judgment. As discerned from the foregoing findings, the trial court determined there was no evidence upon which reasonable minds could differ[.]
Broyles, 331 Ark. at 65, 961 S.W.2d at 714. The Broyles court went on to restate the correct
standard, which the court of appeals should have applied:
On review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties.
Significantly, and especially relevant in the present case, the standard to be applied in summary judgment cases is whether there is evidence sufficient to raise a fact issue, rather than evidence sufficient to compel a conclusion on the part of the factfinder.
331 Ark. at 65–66, 961 S.W.2d at 75–76 (citations omitted).
I can see no difference between the standard that the trial court used in
Broyles—which the supreme court held was prejudicial error—and the standard that was
affirmed by the court of appeals in the case at bar. In both cases, the circuit court usurped
6 Cite as 2017 Ark. 103
the appellants’ right to a trial by jury. Accordingly, I dissent from the majority’s decision not
to take this case on review.