PENNY MONK v. HARMON DISCOUNT, a/k/a HARMON DRUGS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6894-03T56894-03T5

PENNY MONK,

Plaintiff-Appellant,

v.

HARMON DISCOUNT, a/k/a HARMON

DRUGS,

Defendant,

and

LUSTER PRODUCTS, INC., an Illinois

Corporation,

Defendant-Respondent.

 
_______________________________________

Argued March 22, 2006 - Decided September 25, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from the Superior Court of New

Jersey, Law Division, Morris County,

L-1851-01.

Ronald M. Gutwirth argued the cause for

appellant.

Joseph F. Skinner argued the cause for

respondent (Heim & Lamastra, attorneys;

Mr. Skinner, on the brief).

PER CURIAM

Plaintiff, Penny Monk, suffered second and third degree burns on her head and neck when the flame from her cigarette lighter caused her hair to catch fire.

Plaintiff filed what amounted to a products liability complaint against defendant, Luster Products, Inc. The complaint alleged that plaintiff applied Luster's Pink Oil Moisturizer Hair Lotion (the product) to her hair, lit a cigarette, and her hair immediately caught fire and caused severe burns. Plaintiff's complaint, read indulgently, alleged a design defect the Luster product was flammable and a warning defect the product did not contain a flammability warning. After a seven-day trial, the jury found no design defect and no failure to warn and returned a verdict in favor of defendant. Plaintiff appeals the judgment dismissing her complaint and the order denying her motion for a new trial. We affirm.

I

The jury heard this evidence at trial. After showering at approximately 9:30 a.m., plaintiff applied one half cap of the product to her dry hair. Plaintiff had used the Luster product regularly for several years without incident. She knew friends and family members who also had used the product without a problem.

The product has been marketed since the mid-1960's, with only minor changes to its formula. Printed directions on the container instruct the user to shake, pour a small amount into the palm of the hand, rub the hands together, and gently massage the product through the hair. The packaging contains no warning that the product is flammable, nor does it warn against smoking while using the product. Plaintiff had often smoked a cigarette after applying the product to her hair.

About three minutes after applying the product to her hair, plaintiff lit a cigarette with a cigarette lighter. She saw her shoulder-length hair and the flame from the cigarette lighter moving toward each other, and her hair caught fire. Plaintiff ran back into the bathroom, where she tried to put out the flames by putting her head under the faucet in the bathroom sink. When that was unsuccessful, she jumped into the shower, where she was able to put out the flames. She still did not feel any pain.

As she got out of the shower, plaintiff shouted out the bathroom window to her neighbor, Donna Leach, for help. Leach testified that this happened at approximately 11:00 a.m. On entering plaintiff's house, Leach followed her upstairs to the bathroom and assisted her in cutting off the burnt hair. Leach did not see any pink liquid or lotion in plaintiff's hair or on her head or face. Leach asked plaintiff what had happened, and plaintiff responded that as she conditioned her hair in anticipation of perming it, she lit a cigarette and her hair caught on fire. Plaintiff pointed to two bottles of hair products to the right of the bathroom sink; one bottle was pink, and the second bottle was white with black and yellow markings.

Leach testified that plaintiff appeared glassy-eyed, sluggish, and uncoordinated, and she was slurring her words. At one point, plaintiff attempted to light a cigarette; but her movements were so uncoordinated that she merely waved the lighter from side to side, unable to connect the flame to the cigarette. Leach grabbed plaintiff's lighter and lit the cigarette for her.

Leach asked plaintiff several times if she wanted her to call an ambulance. Plaintiff declined. On her way out, Leach promised to check on plaintiff later in the day. At the time, Leach believed plaintiff's odd behavior was related to her use or overuse of antidepressant medications. Several weeks later, however, plaintiff admitted to Leach that she had been high on heroin at the time. When Leach left, plaintiff still was not experiencing any pain. She put a scarf around her head and drove to the pharmacy to purchase burn creams. When she returned home, however, her scalp was "burning real bad," so she lay on the floor and let a fan blow on her head. Within a few seconds, she lost consciousness.

Sometime after 3:15 p.m., plaintiff's fiancé, Michael Malone, returned home from work. Seeing plaintiff's condition, he immediately took her to St. Clare's Hospital in Denville, where her wounds were bandaged and she was given a shot of Demerol to relieve the pain. Plaintiff was then sent to St. Barnabas Medical Center, in Livingston, where she remained hospitalized in the burn unit for three weeks with second and third degree burns on her ears, forehead, neck, and scalp. She received treatment for more than a year after her discharge. Plaintiff has permanent scarring and has continued to suffer physical pain, as well as nightmares and disturbed thoughts regarding the accident and her physical appearance.

The jury heard testimony from liability experts on both sides. Plaintiff's expert, Dr. Robert Glassman, performed several experiments on the Luster product and other hair products that he deemed comparable to the Luster product. The jury saw a videotape of those experiments.

In his first experiment, Glassman poured an unspecified amount of the product into an open aluminum cup. He then heated the cup from below, using a propane burner. At some point, the Luster product bubbled; it burst into flames once the water content had burned off. As a result of this experiment, Glassman concluded that the Luster product had the capacity to burn. The jury also learned that a propane flame burns at approximately 3000 degrees Fahrenheit, whereas a cigarette lighter burns at approximately 800 degrees Fahrenheit.

In his second experiment, Glassman applied the Luster product evenly to a swatch of hair, attempting to simulate the conditions under which plaintiff used the product. He permitted the water from the product to evaporate, and then he attempted to ignite the dry hair using a butane burner. He found that the hair ignited in approximately twelve seconds.

Glassman performed the second experiment using untreated hair as well as hair treated with a variety of hair products that he deemed comparable to the Luster product. Glassman noted that untreated hair took much longer to burn than hair to which one of the products had been applied. With the other hair products, some of which contained warnings regarding the flammability of hair in general, or cautionary statements regarding the product in particular, Glassman found that the hair burned after between ten and fifteen seconds.

Glassman opined that the Luster product posed a serious risk of injury when used in a foreseeable manner, which included smoking a cigarette while using the product. The risk arose because the product was flammable, meaning that it increased the rate and intensity at which untreated hair would burn, and because the product package contained no warning that it was flammable. In his opinion, the product was not suitable for its intended purpose.

Glassman further opined that the product's flammable propensities could be eliminated at minimal cost and without affecting its utility, by lowering the percentage of mineral oil and by adding a larger percentage of the flame retardant ingredient sodium borate. This opinion was rebutted, however, by two of defendant's liability witnesses, Fred Luster, executive vice president and director of research and development of Luster Products, Inc., and defendant's expert witness, Dr. Stanley Brois, who testified that the mineral oil concentration was necessary to create an emulsion when combined with the product's water content, and stated that the addition of more sodium borate, an alkaline material, could be irritating to the skin.

Brois opined that the Luster product, which was a mineral oil-in-water emulsion designed to retain moisture in the hair, was not flammable as defined by OSHA regulations, because none of the product's ingredients had flashpoints of less than 100 degrees Fahrenheit. Therefore, in Brois's opinion, the product did not require a flammability warning. Brois testified that OSHA's flammability standards were utilized by all federal government agencies to determine flammability of products, including the Food and Drug Administration ("FDA"), which regulates the sale of some consumer products.

Brois further opined that plaintiff's lotion-treated hair could not have ignited in just a few seconds, as she claimed. The jury saw a videotape of several experiments Brois had conducted, which supported his opinion. Brois's first set of experiments entailed unsuccessful attempts to use the Luster product as a candle. Brois discovered that when the candle wick had absorbed the Luster product, the candle sputtered and then extinguished itself. Brois's second experiment entailed treating human hair with one-half cap of the Luster product and attempting to burn the hair using a cigarette lighter. Brois discovered that hair treated with the Luster product behaved like wet hair, starting to burn and smoke, sputtering, and then self-extinguishing when the direct flame was removed.

Brois criticized Glassman's conclusions regarding the Luster product, claiming they were based on flawed experiments. More specifically, Brois claimed that Glassman's experiments were flawed because they involved removing the water content from the Luster product, thereby creating a flammable residue. By removing the product's water content, Glassman had destroyed the oil-in-water emulsion that would have prevented sustained burning. Brois also opined that to the extent Glassman used a propane burner to ignite the Luster product, his experiment differed significantly from the butane cigarette lighter that plaintiff had described, because butane burns at a much lower intensity than propane, and any organic material would burn when exposed to propane ignition.

Finally, Luster employees testified that the product contained no hazardous materials, was not volatile, and did not produce a vapor. The product was not considered flammable under OSHA standards, and the company had been unable to ignite the product despite an attempt to do so. For these reasons, Luster did not issue a flammability warning with respect to the product. Luster did produce some products that were considered flammable, and those products were sold with appropriate cautionary and warning statements in compliance with federal law.

Because plaintiff claimed to have suffered post-traumatic stress disorder as a result of the accident, the jury heard expert psychiatric testimony. Plaintiff had a long history of mental illness for which she took medication, had been hospitalized on several occasions, and received social security disability benefits. Her previously diagnosed mental illnesses included, among other things, bipolar disorder and post-traumatic stress disorder. Plaintiff also had a long history of alcohol and drug abuse, including an addiction to heroin. She also had a record of criminal convictions for prescription fraud and use of a stolen credit card.

The jury learned that at the time of the accident, plaintiff was involved in a methadone treatment program, but she had relapsed into heroin abuse. Two weeks before the accident, plaintiff was admitted to Newark Beth Israel Medical Center for heroin abuse and suicidal ideation. During that four-day hospitalization, she tested positive for both opiates and methadone. Three days before the accident, plaintiff visited Newton Memorial Hospital to obtain refills of her psychiatric medications. Plaintiff denied having used heroin or any psychiatric drugs on the date of the accident, but admitted that she had used heroin and taken psychiatric medications the night before the accident. However, she denied any impairment or altered perceptions at the time of the accident.

Dr. Robert Latimer, plaintiff's expert psychiatrist, testified on plaintiff's direct case respecting damages. He offered the opinion that the accident caused plaintiff to suffer from post-traumatic stress disorder that aggravated her pre-existing psychiatric illnesses.

Dr. Richard Sostowski, defendant's expert psychiatrist, described the side effects associated with plaintiff's prescribed psychiatric medications (Clonazepam, Elavil, and Depakote) and the effects of heroin usage. He stated that the psychiatric medications could cause, among other things, fatigue, fogginess, sedation, and blurry vision. He also testified that heroin usage could cause a person to appear stuporous, glassy-eyed and unfocused, with impaired speech, and could possibly render the person unconscious. Sostowski opined that Leach's description of plaintiff's behavior on the date of the accident was more compatible with someone under the influence of heroin or methadone than of the prescribed psychiatric medications. Sostowski did not believe that the accident caused plaintiff's post-traumatic stress disorder. Plaintiff had been diagnosed with that condition prior to the accident, and in his opinion, the disorder stemmed from plaintiff's traumatic life history.

II

Plaintiff moved for a new trial on the ground that the verdict was against the weight of the evidence. The trial judge denied the motion with this explanation:

With respect to the plaintiff's principal allegations that the product was defectively designed and should have contained a warning for consumers. There was uncontradicted evidence that the product was 62 percent water and, under OSHA standards, did not meet the criteria for being a flammable product. This was uncontradicted.

While the plaintiff's chemist opined that as a result of his test, the product increased the risk of hair's flammability, nevertheless, company representatives disputed this allegation and a defense expert testified that his experiments corroborated the company's position that the product was not flammable and, as a result, did not require a warning. Accordingly, the plaintiff's factual allegations regarding product defect and warning were met and contradicted by the defense and the jury agreed with the latter.

As for the happening of the accident, only the plaintiff was present when the accident occurred, and as to how the accident occurred, the jury was called upon to assess her credibility. In that regard, she had two felony convictions, which the Court ruled were admissible to impeach her credibility. Additionally, she had an extensive history of drug use and psychiatric problems, which were brought out during the trial.

. . . .

Added to this was the testimony of her neighbor, Donna Leach, who responded to plaintiff's cry for help on the day of the accident. Ms. Leach testified that when she entered the plaintiff's house and saw her shortly after the fire, the plaintiff's eyes were glassy, her words slurred, and she was slow and sluggish in her movements.

Most revealing, she said the plaintiff had trouble lighting a cigarette when Ms. Leach was there because she could not line the lighter up with the end of the cigarette in order to light it. Thus, the witness, Ms. Leach, actually lit the cigarette for her. At first Ms. Leach and the plaintiff blamed the plaintiff's behavior on her medications, but a month later, the plaintiff confessed to Ms. Leach that she was high on heroin on the day of the accident.

While the plaintiff denied heroin use on the day of the accident, nevertheless, the Leach testimony was compelling and the jury could have reasonably concluded that the plaintiff, not the defendant's product, was solely responsible for causing the plaintiff's injuries.

As a result, the jury's verdict for the defendant, Luster Products, was supported by the evidence and not the result of a miscarriage of justice. Since the plaintiff's only argument in support of a new trial was that the verdict was against the weight of the evidence, the motion is denied.

III

On appeal, plaintiff presents these arguments:

POINT I

THE COURT SHOULD REVERSE THE VERDICT ENTERED IN FAVOR OF THE DEFENDANT BECAUSE THE TRIAL COURT ERRED IN ADMITTING EX PARTE VIDEOTAPED EXPERIMENTS CONDUCTED BY DEFENDANT.

POINT II

THE COURT SHOULD REVERSE THE DEFENDANT VERDICT BECAUSE THE TRIAL COURT IMPROPERLY ADMITTED EVIDENCE OF PLAINTIFF'S ALLEGED HEROIN USE DESPITE DEFENDANT'S FAILURE TO PRESENT COMPETENT LAY AND EXPERT PROOF THAT DRUG USE CAUSED PLAINTIFF'S INJURIES.

POINT III

THE COURT SHOULD REVERSE THE DEFENSE VERDICT BECAUSE THE TRIAL COURT ERRED IN PERMITTING DR. SOSTOWSKI TO TESTIFY THAT PLAINTIFF'S CONDUCT WAS CONSISTENT WITH HEROIN USE BECAUSE THE OPINION WAS SPECULATIVE AND NOT PROVIDED IN DISCOVERY.

POINT IV

THE TRIAL COURT SHOULD REVERSE THE DEFENSE VERDICT BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF'S APPLICATION TO RECALL DR. LATIMER TO REBUT DR. SOSTOWSKI'S PREVIOUSLY UNDISCLOSED OPINION TESTIMONY.

POINT V

THE COURT SHOULD REVERSE THE DEFENSE VERDICT BECAUSE THE TRIAL COURT IMPROPERLY ADMITTED OSHA REGULATIONS REGARDING FLAMMABILITY BECAUSE OSHA REGULATIONS DO NOT PERTAIN TO RISKS POSED BY USE OF HAIR CAR PRODUCTS.

POINT VI

THE COURT SHOULD REVERSE THE DEFENDANT'S VERDICT BECAUSE THE JURY'S FINDINGS THAT THE LUSTER PINK OIL MOISTURIZER HAIR LOTION DID NOT REQUIRE A WARNING AND CONTAINED NO DESIGN DEFECT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND A MISCARRIAGE OF JUSTICE UNDER THE LAW.

The issues plaintiff raises in Points II through VI are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). We also reject plaintiff's contention that the admission of defendant's videotaped experiments was prejudicial error that warrants a new trial. We will, however, address that argument in greater depth.

IV

Plaintiff argues that the trial judge erred in allowing the jury to view the defense expert's videotape of his experiments, which purported to demonstrate that hair treated with the product did not readily catch fire when exposed to flame. Plaintiff relies on Balian v. Gen. Motors, 121 N.J. Super. 118 (App. Div. 1972), certif. denied, 62 N.J. 195 (1973), for the proposition, first argued on her motion in limine, that she was entitled to notice and an opportunity to monitor the experiment and the taping. The judge instead offered plaintiff the opportunity to depose defendant's expert, as well as the opportunity for her own expert to redo and videotape his experiments without defendant's representative in attendance.

A deferential standard of review applies to evidentiary decisions; we reverse only when there has been an abuse of the trial judge's discretion, that is, when the ruling was "'so wide of the mark that a manifest denial of justice resulted.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

The circumstances in Balian are sufficiently distinguishable that we cannot find an abuse of discretion in the denial of plaintiff's motion to exclude the videotape. First, in Balian, we were addressing a film that was presented as the re-creation of an automobile accident. We concluded that admissibility of such a film "turns on whether the experiment was conducted under conditions and circumstances similar to those actually existing in the case." Balian, supra, 121 N.J. Super. at 126. Here, the videotaped experiment on its face did not attempt to recreate the actual incident. Thus our concern in Balian for the potentially "tremendous dramatic impact of motion pictures," id. at 128, was not implicated to the same extent here. Omissions in the videotape, such as the failure to show the amount or concentration of the liquid applied to the hair sample, were apparent, and plaintiff had ample opportunity to cross-examine the expert and to argue those points to the jury.

Second, in Balian we noted that "[t]he strongest counter-factor militating against the admission of these movies is the element of unfair surprise." Id. at 129. The movie in that case was created in the middle of trial, after a previous film had been ruled inadmissible, and without notice to plaintiff, who was entitled to "assum[e] that this issue was at rest." Ibid. As a result, the judgment dismissing the plaintiff's products liability complaint was reversed and a new trial ordered. Here, although the videotape was originally provided to plaintiff after the close of the discovery period, and shortly before the first scheduled trial date, the trial did not take place until several months later. Plaintiff declined the opportunity to depose defendant's expert about the videotape, but did take advantage of the opportunity for her expert to tape his own experiments. The jury saw both tapes, which also reduced any unfairly dramatic impact.

Plaintiff also relies upon Suanez v. Egeland, 330 N.J. Super. 190, 192-96 (App. Div. 2000), a verbal threshold case, where we reversed a defense verdict because a defense videotape was unfairly prejudicial. The defense expert in Suanez had relied on a tape produced by a commercial company that depicted a crash dummy in an automobile that was struck at five miles per hour; the tape was played for the jury in slow motion. Id. at 193, 196. The expert used the tape to support his opinion that the plaintiff's herniated disc could not have been caused by the slow speed accident.

In Suanez, the videotape was not available to the plaintiff's attorney during pretrial discovery, id. at 193-94, the plaintiff's attorney had no notice or time to prepare, and the attorney therefore was "ill-equipped to meaningfully test the validity of the scenes depicted on the tape." Id. at 196. Moreover, because the tape had been made by a consulting company, not the defense expert, it was not authenticated and no foundation was laid for its introduction at trial. Id. at 194-96. Finally, although the tape was never moved into evidence, the jury was given no limiting instruction and was left to consider the videotape as any other piece of evidence. Id. at 194. The circumstances here are entirely distinguishable. Plaintiff had pretrial notice of the videotape's existence, the opportunity to depose defendant's expert, and was allowed to create and introduce her own expert's videotaped experiments.

 
In conclusion, although exclusion of defendant's videotape also might have been supportable, we are constrained to find that the decision to admit defendant's videotape was not an abuse of discretion. Ultimately, the jury had the opportunity to see and hear the testimony of both plaintiff's and defendant's expert witnesses, and to see videotapes of the experiments each performed. The jurors had a full opportunity to compare the contradictory positions of each expert. In the final analysis, the jury accepted defendant's expert's opinions that the product was not defective by virtue of being flammable or by failing to warn a foreseeable user not to smoke while using the product. We cannot find that plaintiff's case was unfairly prejudiced by the videotape.

Affirmed.

Plaintiff did not explicitly allege the Products Liability Act, N.J.S.A. 2A:58C-1 to -11, which has been described as creating "one unified, statutorily defined theory of recovery for harm caused by a product . . . ." Dreier, Keefe & Katz, New Jersey Products Liability & Toxic Torts Law 1:2-1 (Gann 2005).

On cross-examination, Glassman admitted to some differences in the contents of these products as compared to the Luster product.

The product's primary ingredients are deionized water (62.7%) and mineral oil (24.3%). The other ingredients are lanolin, beeswax, petrolatum, sodium borate, panthenol (Vitamin B5), tocopherol (Vitamin E), sorbitan oleate, ethylhexyl dimethyl PABA, methylparaben, propylparaben, imidazolidinyl urea, fragrance, and D&C red #33.

Brois admitted, however, that some of the ingredients of the Luster product had flashpoints below the heat associated with a cigarette lighter (800 degrees Fahrenheit).

The court denied plaintiff's counsel's request to recall her psychiatric expert to rebut Sostowski's testimony on this issue, on the ground that plaintiff had had Dr. Sostowski's report in advance of trial and could have offered her own witness's contrary opinion on her direct case.

(continued)

(continued)

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A-6894-03T5

 

September 25, 2006