Dumigan v. L'Oreal USA, Inc.

2025 NY Slip Op 31881(U)

• Court: New York Supreme Court, New York County
• Decided: May 25, 2025
• Docket: Index No. 159690/2024
• Status: Unpublished

Opinion

Dumigan v L'Oreal USA, Inc. 2025 NY Slip Op 31881(U) May 25, 2025 Supreme Court, New York County Docket Number: Index No. 159690/2024 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 05/28/2025 04:25 P~ INDEX NO. 159690/2024 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 05/28/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ------------------,----------------------X INDEX NO. 159690/2024 PAULETE DUMIGAN, MOTION DATE 03/10/2025 Plaintiff, MOTION SEQ. NO. _ _ _00_2_ __ - V -

L'OREAL USA, INC.,L'OREAL USA PRODUCTS, INC.,SOFT SHEEN-CARSON, LLC,LUSTER PRODUCTS, DECISION + ORDER ON INC. MOTION

Defendant. -------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 14, 15, 16, 17, 18, 19,20,21,22, 23 were read on this motion to/for DISMISSAL

Upon the foregoing documents, and after a final submission date of March 31, 2025,

Defendant Luster Products, Inc.' s ("Luster") motion to dismiss Plaintiff Paulette Dumigan' s

("Plaintiff') Complaint pursuant to CPLR 321 l(a)(l), (a)(5), and (a)(7) is granted in part and

denied in part.

L Background

This action arises out of Plaintiffs alleged exposure to hair straightening products which

allegedly caused uterine cancer. From 1979 to 2001, Plaintiff alleges she used numerous hair

relaxer products manufactured and sold by Defendants. In 2019, Plaintiff was diagnosed with

uterine cancer. Plaintiff now sues Defendants under numerous theories of liability seeking to

recover damages related to her uterine cancer diagnosis. Luster responds with the instant pre-

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answer motion to dismiss. Plaintiff opposes and requests leave to amend or supplement her

Complaint should the Court find her Complaint deficient in any regard. 1

II. Discussion

A. Personal Jurisdiction

Luster's motion to dismiss Plaintiff's Complaint for lack of personal jurisdiction is denied.

A plaintiff bears the ultimate burden of proof on the issue of personal jurisdiction since they are

the party seeking to assert it over a defendant. However, courts do not require the plaintiff to make

a prima facie showing of personal jurisdiction, but only to demonstrate that facts "may exist" to

exercise personal jurisdiction over the defendant (see CPLR 3211 [d]; American BankNote Corp.

v. Daniele, 45 AD3d 338, 340 [I st Dept 2007]). General jurisdiction over a corporate defendant

may be exercised where the corporation is incorporated and maintains its principal place of

business (Aybar v Aybar, 37 NY3d 274, 289 [2021]). General jurisdiction does not exist over

Luster which is incorporated and maintains its principal place of business in Illinois. Therefore,

the Court may only exercise personal jurisdiction over Luster if specific jurisdiction exists.

Pursuant to CPLR 302(a)(l), a New York Court may exercise personal jurisdiction over a

nondomiciliary if the nondomiciliary has purposefully transacted business within the state and

there is "a substantial relationship between the transaction and the claim asserted" (Coast to Coast

Energy, Inc. v Gasarch, 149 AD3d 485 [1st Dept 2017] quoting Paterno v Laser Spine Ins., 24

NY3d 370,376 [2014]). A court must engage in a two-prong inquiry to determine (1) whether the

defendant transacts any business in New York and, if so, (2) whether the cause of action arises

from such a business transaction (Wilson v Danta, 128 AD3d 176 [1st Dept 2015]). A plaintiff

1 Plaintiff did not formally cross-move for a motion to amend, therefore the Court need not entertain this relief (see Fifth Partners LLC v Foley, 227 AD3d 543 [1st Dept 2024]; Onofre v 243 Riverside Drive Corp., 232 AD3d 443, 443-444 [ I st Dept 2024 ]). 159690/2024 DUMIGAN, PAULETE vs. L'OREAL USA, INC. ET AL Page 2 of 13 Motion No. 002

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does not need to have been involved in the transaction; rather, a plaintiff need only demonstrate

that, considering all the circumstances, there is an articulable nexus or substantial relationship

between the business transaction and the claim asserted (D & R global Selections, SL. v Bodega

Olegario Falcon Pineiro, 29 NY3d 292, 298-299; English v Avon Products, Inc., 206 AD3d 404

[1st Dept 2022]).

Plaintiff alleges that she has been a resident of the state of New York and used Luster

products while she was in New York. She alleges she was ultimately injured by using Luster's

products in New York (see NYSCEF Doc. 1 at ,r,r 11-12). She specifically alleges that she

purchased and used Luster's hair relaxer products while she lived in Bemhards Bay, New York.

This is sufficient to establish specific jurisdiction at the pleading stage, especially because Luster

has failed to come forward with any affirmative evidence that it did not manufacture or design the

allegedly dangerous products at the time of Plaintiffs use, nor have they established that they did

not distribute any products in New York at the time of Plaintiff's alleged use.

B. Preemption

Luster's motion to dismiss Plaintiff's fifth through fifteenth causes of action based on

express preemption is denied. Defendants argue Plaintiff's claims are expressly preempted by the

Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. §301. Express preemption applies only where

the plain language of a statute supersedes state law (Doomes v Best Transit Corp., 17 NY3d 594,

601 [2011]). As held by the United States Supreme Court, there is a presumption against pre-

emption, and pre-emption clauses are to be narrowly construed (Cipollone v Liggett Group, Inc.

505 U.S. 504,505 [1992]; see also Galper v JP Morgan Chase Bank, NA., 802 F3d 437,448 [2d

Cir 2015]). The specific language which Luster argues preempts many of Plaintiff's causes of

action is found in 21 U.S.C. § 379s(a).

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That provision provides:

"Except as provided in subsection (b), (d), or (e), no State or political subdivision of a State may establish or continue in effect any requirement for labeling or packaging of a cosmetic that is different from or in addition to, or that is otherwise not identical with, a requirement specifically applicable to a particular cosmetic or class of cosmetics under this chapter, the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1471 et seq.), or the Fair Packaging and Labeling Act (15 U.S.C. 1451 et seq.)."

The exception to the preemption clause found at 21 U.S.C. § 379s(d) provides:

"Nothing in this section shall be construed to modify or otherwise affect any action or the liability of any person under the product liability law of any State."

A holistic review of Plaintiff's Complaint yields allegations that Defendants were negligent

for failure to comply with the labelling requirements of 21 U.S.C. §§ 361,362, and 21 C.F.R. §

740.l(a). Accepting Plaintiff's allegations as true, pursuant to § 361, titled "Adulterated

cosmetics," Defendants' products should have been labelled and/or recalled as adulterated. That

section specifically states a cosmetic is adulterated "[i]f it bears or contains any poisonous or

deleterious substance which may render it injurious to users under the conditions of use prescribed

in the labelling thereof, or under such conditions of use as are customary or usual. ... " (see 21

U.S.C. § 361 [a]). Moreover, pursuant to 21 U.S.C. 362(a), a cosmetic is misbranded "[i]f its

labelling is false or misleading in any particular." And pursuant to 21 C.F.R. § 740.l(a), "[t]he

label of a cosmetic product shall bear a warning statement whenever necessary or appropriate to

prevent a health hazard that may be associated with the product."

Luster's preemption argument is misguided in two respects. First, Plaintiff does not seek

relief under state law causes of action that would impose a different or additional labeling

requirement pursuant to the FDCA. Rather, Plaintiff is alleging state law causes of action based

on purported violations of the FDCA's labeling requirement. Specifically, it is alleged that

Defendants' products were marketed as "organic," "natural," "nourishing," and "healthy" even

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though there was scientific data showing certain ingredients in Defendants' products disrupt

women's endocrine systems (NYSCEF Doc. 1 at 1 48). These ingredients are alleged to include,

but are not limited to, phthalates, parabens, cyclosiloxanes, di-(2-ethlhexyl),

octamethylcyclotetrasiloxane, lye, and formaldehyde (Id.). Given the presumption against

preemption and construing 21 U.S.C. § 379s(a) narrowly and in conjunction with other sections of

the FDCA, the Court finds Plaintiffs fifth through fifteenth causes of action are not expressly

preempted. Indeed, § 379s(a) does not expressly bar plaintiffs from using common law causes of

action to seek damages based on a defendant's alleged failure to comply with the labeling

requirements set forth in the FDCA.

Although Luster relies on the Second Circuit's decision in Critcher v L 'Orea! USA, Inc.,

959 F.3d 31 (2d. Cir. 2020), the facts of that case are wholly distinguishable from the case at bar.

Specifically, the putative class in Critcher sued because some purchased cosmetics could not be

fully dispensed from cosmetics - causing purchased product to go to waste. The plaintiffs alleged

they were "cheated" of the product they bought. They alleged there should have been a disclaimer

that not all the cream bought was accessible to the consumer. Critcher was not a case involving

alleged mislabeling based on the failure to warn about potentially cancer-causing ingredients. The

Second Circuit specifically noted that the Critcher plaintiffs were not suing based on the

effectiveness of the products, as Plaintiff does here. Moreover, the Critcher plaintiffs conceded

that L'Oreal complied with the FDCA's federal labeling requirements, while here Plaintiff alleges

those requirements have been violated. Thus, the Second Circuit's decision in Critcher is neither

persuasive nor controlling.

The second reason that Luster's preemption argument is misplaced is because it fails to

consider that Plaintiffs causes of action five through fifteen may be categorized as product liability

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claims, or at the very least, are product liability adjacent, bringing them within the product liability

exception contained in 21 U.S.C. § 379s(d). Indeed, it was for this reason that United States District

Judge Mary M. Rowland, in ruling on defendants' joint motion to dismiss the plaintiffs' master

complaint, found the numerous state law claims were not preempted (see In re Hair Relaxer

Marketing Sales Practices and Prods. Liab. Litig., 702 F.Supp.3d 692, 699-700 [ND Ill 2023]).

Given the presumption against preemption, construing 21 U.S.C. § 379s(a) narrowly, and to ensure

consistency in rulings, this Court adopts Judge Rowland's ruling in the ongoing multidistrict

litigation. Therefore, the motion to dismiss based on an express preemption defense is denied.

C. Failure to State a Claim

i. Failure to Warn (Second and Third Causes of Action)

Luster's motion to dismiss Plaintiff's failure to warn cause of action is denied. Luster

argues the failure to warn claims fail because the Complaint does not identify the defect in Luster's

products, nor does it allege Luster's knowledge of the defect. This argument is unavailing, as the

Complaint lists the products used (see NYSCEF Doc. 1 at ~~ 65-69) and alleged the numerous

allegedly dangerous ingredients used in Luster's products which Luster had a duty to research,

test, and warn about (Id. at ~~ 40-59). Accepting the allegations as true, as this Court must on a

pre-answer motion to dismiss, this is sufficient to state a failure to warn claim (see, e.g. Liriano v

Hobart Corp., 92 NY2d 232, 237 [1998] [manufacturers have "a duty to warn against latent

dangers resulting from foreseeable uses of its product of which it knew or should have known."]).

Although Luster argues that there is insufficient scientific evidence to allege that it knew or should

have known about the dangers of certain ingredients, that is an argument appropriate for a motion

for summary judgment, after further discovery has taken place and with competing expert

affidavits, as opposed to a pre-answer motion to dismiss.

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ii. Design and Manufacturing Defect (First and Fourth Causes of Action)

Luster's motion to dismiss Plaintiffs design defect claim is denied. As long held by the

Court of Appeals, a design defect claim arises when a product is "unreasonably dangerous for its

intended use" or "whose utility does not outweigh the danger inherent in its introduction into the

stream of commerce." (Voss v. Black & Decker Mfg. Co., 59 NY2d 102, 107 [1983]). Plaintiff

explicitly alleges that Luster's hair relaxer products were unreasonably dangerous because they

contained toxic ingredients which increase the risk of uterine cancer. Accepting the allegations as

true, on a pre-answer motion to dismiss this is sufficient to state a design defect claim.

Luster's motion to dismiss Plaintiff's manufacturing defect claim is granted. As a

preliminary matter, Plaintiff failed to proffer arguments in opposition to the motion to dismiss her

manufacturing defect claim and therefore it can be dismissed as abandoned (Saidin v Negron, 136

AD3d 458, 459 [1st Dept 2016]). Indeed, the heading of both the first and fourth causes of action

purport to be for "Design and/or Manufacturing Defect." However, a cause of action alleging

design defect is distinct from a manufacturing defect claim, and a review of the allegations in the

second and fourth causes of action clarify that Plaintiff is only alleging causes of action based on

design defect. Indeed, to allege a manufacturing defect claim, there must be allegations that there

was a mistake or error during the manufacturing process which made a product defective (Narvaez

v Wadsworth, 58 Misc.3d 12229[A] at 7 [Sup. Ct., Bx Cty, 2018] citing Fitzpatrick v Currie, 52

AD3d 1089, 1090 [3d Dept 2008]). Here, there are no allegations that products Plaintiff used were

defectively manufactured and caused her injury - rather she alleges that the products were designed

defectively by utilizing dangerous ingredients and failing to warn consumers about the dangers of

those ingredients. Based on the lack of any particularized opposition and Plaintiff's failure to

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distinguish her design defect allegations from her manufacturing defect allegations, Plaintiff

manufacturing defect claims are dismissed.

iii. Negligence and Gross Negligence (Fifth Cause of Action)

Luster's motion to dismiss Plaintiffs negligence and gross negligence claims is denied.

Given the CPLR's lenient pleading standard, coupled with Plaintiffs detailed allegations in her

46-page Complaint, she has sufficiently alleged a negligence claim. Plaintiff has also alleged

adequately a gross negligence claim, which requires allegations that a defendant's conduct

"evinces a reckless disregard for the rights of others or 'smacks' of intentional

wrongdoing." (Colnaghi, US.A., Ltd. v. Jewelers Protection Servs., Ltd., 81 N.Y.2d 821, 823-24,

[1993]). Accepting the allegations as true, marketing products as "healthy" and "protective" while

utilizing ingredients that dangerously increase the risk of uterine cancer and failing to warn about

the dangers of those ingredients despite alleged knowledge of those dangers is sufficient to allege

gross negligence.

iv. Negligence Per Se (Twelfth Cause of Action)

Luster's motion to dismiss Plaintiffs claims alleging negligence per se is denied. New

York law holds defendants liable for negligence per se as to violations of the FDCA (see Winans

v Ornua Foods North America Inc., 731 F.Supp.3d 422,431 [EDNY 2024]). Plaintiffs alleged

violations of the FDCA based on misbranding and false or misleading labeling has long been held

by the Second Circuit to give rise to a negligence per se claim (see Ezagui v Dow Chemical Corp.,

598 F2d 727, 733 [2d Cir. 1979]; see also Sita v Danek Medical, Inc., 43 F.Supp.2d 245, 262

[EDNY 1999]). Thus, this portion of Luster's motion is denied.

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v. Negligent Misrepresentation, Fraud, Fraudulent Concealment (Sixth through Eighth Causes of Action)

Luster's motion to dismiss Plaintiff's claims alleging negligent misrepresentation, fraud,

and fraudulent concealment is denied. To state a negligent misrepresentation claim, a plaintiff must

allege that the defendant was "under a duty to the plaintiff to exercise reasonable care in giving

the information, and plaintiff's reliance on the information must be foreseeable." (Heard v City of

New York, 82 NY2d 66 [1993]). Accepting the allegations as true, Plaintiff adequately alleged

negligent misrepresentation by stating that Defendants knew or should have known their products

were unsafe yet failed to disclose the dangers to Plaintiff, who relied on Defendants' omissions

when she decided to purchase their products (see also Standish-Parkin v Lorillard Tobacco Co.,

12 AD3d 301, 302-303 [1st Dept 2004]).

The same analysis holds true for Plaintiff's fraud and fraudulent concealment claims (see

also Rose v American Tobacco Co., 3 Misc.3d 1103[A] at 2 [Sup. Ct. NY Co. 2004]). Contrary to

Luster's assertion, CPLR 3016(b)'s heightened pleading standard 1s not meant

to prevent an otherwise valid cause of action in situations where it may be 'impossible to detail

the circumstances constituting a fraud"' (Pludeman v Northern Leasing Systems, Inc. l 0 NY3d

486, 491 [2008] citing Lanzi v Brooks, 43 NY2d 778, 780 [1977]). Given Plaintiff's allegations

and the procedural juncture, the Court denies Luster's motion to dismiss Plaintiff's causes of action

alleging fraud and fraudulent concealment.

vi. Breach of Express Warranty, Breach oflmplied Warranty (Ninth and Tenth Causes of Action)

Luster's motion to dismiss Plaintiff's claims alleging breach of express and implied

warranties is denied. Pursuant to New York Uniform Commercial Code §2-313(1)(a) "any

affirmation of fact or promise made by the seller to the buyer which relates to the goods and

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becomes part of the basis of the bargain creates an express warranty that the goods shall conform

to the affirmation or promise." Likewise, §2-313(1 )(b) states that "any description of the goods

which is made part of the basis of the bargain creates an express warranty that the goods shall

conform to the description." Here, Plaintiff alleges she relied on warranties that Defendants'

products were "safe, healthy, protective, and/or natural." (NYSCEF Doc. 1 at 1 238). Although

New York Uniform Commercial Code § 2-313(2) states a manufacturer's mere opinion or

commendation of the goods does not create a warranty, as this is a pre-answer motion to dismiss

further discovery is needed to ascertain whether an express warranty existed and whether Plaintiff

relied on the warranty.

Moreover, there may be a breach of the implied warranty of merchantability if goods are

unsafe "when used in the customary, usual and reasonably foreseeable manner" (Denny v Ford

Motor Co., 87 NY2d 248, 258-259 [1995]). Here, Plaintiff alleges that she developed uterine

cancer from using Defendants' hair relaxer products in their usual and customary manner. These

allegations are sufficient (see generally Colarossi v C.R. Bard. Inc., 113 AD3d 407, 408 [1st Dept

2014]). Thus, the motion to dismiss Plaintiffs causes of action alleging a breach of express

warranty and breach of implied warranty is denied.

vii. Unjust Enrichment (Thirteenth Cause of Action)

Luster's motion to dismiss Plaintiffs claim alleging unjust enrichment is granted. As

reiterated by the Court of Appeals, an unjust enrichment claim is not available if it simply

duplicates, or replaces, a conventional contract or tort claim (Corsello v Verizon New York, Inc.,

18 NY3d 777, 790 [2012]). Unjust enrichment is reserved for "unusual situations when, though

the defendant has not breached a contract nor committed a recognized tort, circumstances create

an equitable obligation running from the defendant to the plaintiff." (Id.). This is not one of those

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cases. Nor has Plaintiff distinguished sufficiently her unjust enrichment claim from her other

claims to survive dismissal. Therefore, this portion of the motion to dismiss is granted.

viii. Negligent Failure to Recall (Eleventh Cause of Action)

Luster's motion to dismiss Plaintiffs claims alleging negligent failure to recall is granted.

Plaintiff concedes there is no independent cause of action for "negligent failure to recall" in New

York, and in any event, the failure to recall is duplicative of the numerous other negligent causes

of action Plaintiff alleges - including failure to warn, ordinary negligence, gross negligence, and

negligence per se. Therefore, this cause of action is dismissed.

ix. Punitive Damages (Fourteenth Cause of Action)

Luster's motion to dismiss Plaintiffs claims alleging punitive damages is granted in part

and denied in part. To the extent Luster argues punitive damages are not an independent cause of

action this is correct and the fifteenth cause of action is dismissed (Jean v Chinitz, 163 AD3d 497

[1st Dept 2018]). However, to the extent Luster seeks to strike Plaintiffs demand for punitive

damages in the wherefore clauses throughout her complaint, this portion of the motion is denied.

At this pre-answer stage, without the benefit of any discovery, and accepting the allegations as

true, the Court finds it premature to make any ruling dismissing the claim for punitive damages

(Wholey v Amgen, Inc., 165 AD3d 458, 459 [1st Dept 2018]; Sclafani v Brother Jimmy's BBQ,

Inc., 88 AD3d 515, 516 [1st Dept 2011]). Thus, Luster's motion to dismiss Plaintiffs fifteenth

cause of action which purports to assert a claim for punitive damages is granted. However, Luster's

request that the demand for punitive damages found throughout the wherefore clauses of Plaintiffs

Complaint is denied.

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Accordingly, it is hereby,

ORDERED that Luster's motion to dismiss motion to dismiss Plaintiffs Complaint is

granted in part and denied in part; and it is further

ORDERED that Luster's motion to dismiss is granted to the extent that Plaintiff's first and

fourth causes of action are dismissed solely to the extent they purport to allege a claim for

manufacturing defect; and it is further

ORDERED that Luster's motion to dismiss is granted to the extent that Plaintiff's thirteenth

cause of action alleging unjust enrichment and eleventh cause of action alleging negligent failure

to recall are hereby dismissed; and it is further

ORDERED that Luster's motion to dismiss is granted to the extent that Plaintiff's fifteenth

cause of action alleging punitive damages is dismissed. However the motion is denied to the extent

Strength of Nature seeks dismissal of Plaintiff's demand for punitive damages in her numerous

wherefore clauses; and it is further

ORDERED that the remainder of Luster's motion to dismiss pursuant to CPLR 321 l(a)(7)

is denied; and it is further

ORDERED that Luster's motion to dismiss based on lack of personal jurisdiction and

federal preemption is denied, and it is further

ORDERED that within twenty days of entry, Luster shall serve its Answer to what remains

of Plaintiff's Complaint; and it is further

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ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this

Decision and Order, with notice of entry, on all parties via NYSCEF.

This constitutes the Decision and Order of the Court.

bATE HON . MARY V. ROSADO, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE : INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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