Powers v. Tucker

690 So. 2d 922, 1997 WL 88276
CourtLouisiana Court of Appeal
DecidedFebruary 26, 1997
Docket29190-CA
StatusPublished
Cited by16 cases

This text of 690 So. 2d 922 (Powers v. Tucker) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Powers v. Tucker, 690 So. 2d 922, 1997 WL 88276 (La. Ct. App. 1997).

Opinion

690 So.2d 922 (1997)

Wilma W. POWERS and Tom Powers, Plaintiffs-Appellants,
v.
Betty TUCKER, dba Tower of Beauty, et al., Defendants-Appellees.

No. 29190-CA.

Court of Appeal of Louisiana, Second Circuit.

February 26, 1997.

M. Randall Donald, Monroe, for Plaintiffs-Appellants.

Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, III, Elizabeth D. Bogan, Monroe, for Defendants-Appellees Betty Tucker d.b.a. Tower of Beauty, Shirley Turner and Ohio Casualty Ins. Co.

Davenport, Files & Kelly by Mike C. Sanders, Carey B. Underwood, Monroe, for Defendants-Appellees Cosmair, Inc. d.b.a. L'Oréal and Zurich American Ins. Co.

Before GASKINS, CARAWAY and PEATROSS, JJ.

GASKINS, Judge.

The plaintiffs, Wilma W. Powers and Tom Powers, appeal the granting of summary judgment in favor of the defendants, Betty Tucker d.b.a. Tower of Beauty, Shirley Turner, Ohio Casualty Insurance Company, Cosmair, Inc. d.b.a. L'Oréal, and Zurich American Insurance Company. For the following reasons, we reverse and remand.

FACTS

On August 31, 1990, Mrs. Powers had her hair washed, styled, and colored at the Tower of Beauty salon in Monroe. Shirley Turner, a Tower of Beauty employee, prepared and applied the color treatment to Mrs. Powers' hair. The next day Mrs. Powers accompanied her husband on a business trip to New Hampshire. On September 3, Mrs. Powers became ill, and on September 4, she went to the emergency room of Portsmouth Regional Hospital in Portsmouth, New Hampshire, complaining of fever, chills, and swelling in the head and neck area. On September 5, Mrs. Powers returned to the hospital in Portsmouth with these same symptoms, and this time she was admitted. She was treated in Portsmouth until September 14, when she was released and returned to her home in West Monroe.

*923 Upon her return home, Mrs. Powers developed large lesions to her scalp which had to be surgically drained and debrided. She experienced hair loss and required skin grafts and skin stretchers placed in her head to restore her normal appearance and hair growth.

On August 29, 1991, Mr. and Mrs. Powers filed their initial petition for damages alleging that Mrs. Powers' illness was caused by adulterants and bacteria contained in the hair color treatment she received at Tower of Beauty. After a lengthy delay by the plaintiffs in ascertaining and serving the proper defendants, the matter finally proceeded to pretrial posture.

On June 22, 1995, defendants Ms. Tucker d.b.a. Tower of Beauty, Ms. Turner, and Ohio Casualty filed a motion for summary judgment. (The other defendants subsequently adopted the motion.) The motion for summary judgment was based upon six exhibits, most notably an affidavit by Dr. Anthony LaRocco, Jr., who professed to be a specialist in the diagnosis and treatment of infectious diseases and to have reviewed Mrs. Powers' medical records.

Dr. LaRocco, who did not examine Mrs. Powers, stated in part:

2.
At the outset of her illness, none of Mrs. Powers' examining physicians at Portsmouth General Hospital detected any erythema or redness of her facial skin or scalp before or during her hospitalization. Mrs. Powers testified that when she was in New Hampshire, she had no lesions on her scalp and that when she first became ill, there was no visible sore or wound or skin cracking. The lesions first appeared after she returned to Monroe and began to see Dr. Hebert, a period of more than 30 days following hair treatment and onset of her illness.
3.
In order for a relationship to have existed between Mrs. Powers' illness and the hair coloring treatment performed by the defendant in this action, plaintiff must have shown signs of rash, lacerations or lesions or some other objective sign of illness to her scalp at the inception of her illness. The absence of any such signs at that time excludes the hair coloring treatment from any possibility as a cause of her illness.
4.
Mrs. Powers' medical data suggests that it is likely that she suffered from streptococcal pharyngitis, which is a systemic disease and which was unrelated to the hair coloring treatment.

Exhibit B attached to the motion for summary judgment was a copy of a letter to Mrs. Powers' attorney dated September 13, 1991, and written by Dr. David J. Itkin, Mrs. Powers' treating physician in New Hampshire. In this letter, Dr. Itkin made the following comments as to Mrs. Powers' condition:

[Mrs. Powers'] illness evolved into a cellulitis of the scalp and face. The only possible etiologic factor that was determined was a recent hair tinting procedure that the patient received on August 31, 1990.
According to Mrs. Powers, she had received similar such treatments since December 1989. She did not recall as to whether any additional chemicals were used, and she did not note any significant burning sensation following that procedure. Careful physical examination did not reveal any definite areas of irritation or chemical burn of the scalp.
Based on the above, the relationship between Mrs. Powers hair tinting procedure and her subsequent development of cellulitis remains speculative, in view of the fact that the only association was a temporal one. If an obvious area of scalp irritation had been found, this would have strengthened the association. Also, if a different type of chemical, more caustic, was used for that particular tinting procedure, the association might also be strengthened.

Also attached to the motion for summary judgment as Exhibit C were pages of Mrs. Powers' deposition which established that, to the best of her knowledge, Ms. Turner applied the same hair coloring to her hair on August 31, 1990, as on prior occasions. Exhibit *924 D was a copy of a consultation report dated September 7, 1990, by Dr. Itkin, in which he recounts the results of his physical examination of Mrs. Powers; he notes her facial swelling, observing that "[s]welling extends into the scalp, and it does pit." Exhibit E was a typed document entitled "Discharge Summary" and signed by Gail Snow, M.D.; although the name of the patient was omitted from the typed report, Mrs. Powers' name has been handwritten at the top. Exhibit F appeared to be progress notes by Dr. David Hebert; on October 3, 1990, he refers to Mrs. Powers developing an abscess above the left temporal area and losing more hair. None of these medical records are certified.

On August 3, 1995, the trial court held a hearing on the summary judgment motion. The trial judge asked plaintiffs' counsel about the existence of any expert testimony as to the cause of Mrs. Powers' illness, and counsel responded that Mrs. Powers was scheduled the following week to see a physician specializing in infectious disease at the LSU Medical Center in Shreveport. Counsel stated that if the physician informed him that Mrs. Powers did not "have a case," then the plaintiffs would move to have the matter dismissed. Accordingly, the trial court instructed counsel that he had until August 28, 1995, to supplement the opposition to the motion for summary judgment with testimony and affidavits from the infectious disease specialist who was to see Mrs. Powers. The trial judge noted that if plaintiffs' counsel failed to supplement their opposition as instructed, the court would grant the summary judgment motion.

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Bluebook (online)
690 So. 2d 922, 1997 WL 88276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powers-v-tucker-lactapp-1997.