Coratti v Wella Corp.

[*1] Coratti v Wella Corp. 2006 NY Slip Op 52409(U) [14 Misc 3d 1204(A)] Decided on December 15, 2006 Supreme Court, New York County Tolub, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 15, 2006
Supreme Court, New York County

JOHN CORATTI and SHARON CORATTI, Plaintiffs,

against

THE WELLA CORPORATION, WELLA CAPITAL, INC., THE WELLA CORPORATION, also known as WELLA CAPITAL, INC., L'OREAL USA PRODUCTS, INC., L'OREAL USA SALES, INC., COSMAIR, INC. and L'OREAL USA PRODUCTS, INC., also known as L'OREAL USA SALES, INC. and COSMAIR, INC., Defendants.



106168/01

Walter B. Tolub, J.

In this products liability/toxic tort action, defendants The Wella Corporation, Wella Capital, Inc and The Wella Corporation also known as Wella Capital, Inc. (collectively "Wella") and L'Oreal USA Products, Inc., L'Oreal USA Sales, Inc., Cosmair, Inc and L Oreal USA Products, Inc., also known as L'Oreal USA Sales, Inc. and Cosmair, Inc (collectively "L'Oreal") move, by separate motions, for summary judgment dismissing the instant complaint on the ground that plaintiffs cannot establish, through competent medical testimony, that John Coratti's injuries were caused by occupational exposure to defendant's hair coloring products.

BACKGROUND

John Coratti, a hair dresser and part owner of John Josef Hair & Colour Group located in Poughkeepsie, New York, alleges that from 1990 through 2000 he spent the majority of his work day coloring hair with products manufactured by L'Oreal and Wella. In 1998, Mr. Coratti began experiencing physical symptoms which included nausea, headaches, chest pains, muscle spasms, rashes and disorientation. In November, 1998, Mr. Coratti consulted Dr. Carol Miyake and Dr. Gabriel Wolfsberger. Both doctors opined that Mr. Coratti's symptoms were "possibly" caused by the hair dye (8/22/06 Thomas Gannon Aff. Ex. C & D). In 1998, Mr. Coratti installed a ventilation system in the salon in an attempt to clean the air, and he moved his work station upstairs to try to avoid exposure to the fumes from the products. The remedial measures, however, did not relieve his symptoms. [*2]

In February, 2000, Mr. Coratti stopped working, and presently complains of Multiple Chemical Sensitivity ("MCS"), Inclusion Body Myositis ("IBM"), an inflammatory muscle disease, and Chronic Obstructive Pulmonary Disease ("COPD") all of which he claims were caused by his occupational use of the Wella hair dyes Koleston Perfect, Color Touch and Color Perfect and the L'Oreal hair dyes Majirel and Majiblond. Plaintiffs' complaint asserts causes of action against Wella and L'Oreal for negligent failure to warn, negligent manufacture or sale, breach of warranty, strict liability and fraudulent misrepresentation. The complaint also contains a derivative claim for loss of services on behalf of Sharon Coratti, John Coratti's wife.

The Worker's Compensation Claim

The Worker's Compensation claim filed by Mr. Coratti in 2000 has had a tortured history of reversals and remands. Most recently, on May 24, 2006, the Worker's Compensation Board found that based on the testimony of his treating physicians, Dr. Compain and Dr. Chiam, and evidence of the specific chemicals Mr. Coratti was exposed to at work namely, aminophenols, toluene[FN1], and resorcinol, "that the claimant's symptomology is causally related to this exposure, . . . ." (cite).The panel then reversed a March 2006 decision, stating, "the case is established for multiple chemical sensitivity . . . ." (8/22/06 Thomas Gannon Aff, Ex. A, p.3). Mr. Coratti's employer has appealed the May 24 decision.[FN2]

Social Security Disability

In March, 2002, Administrative Law Judge Henry U. Shavley granted Mr. Coratti's application for Social Security Disability benefits based on information supplied by his treating physicians that Mr. Coratti was suffering from multiple chemical sensitivities and several other conditions. The judge noted that, "(e)xamining physicians in 1998 concluded that the claimant's symptoms were likely related to hair-coloring preparations used in claimant's occupation" (8/22/06 Thomas Gannon Aff, Ex. B).

DEFENDANTS' ARGUMENTS

In support of their motions for summary judgment, Wella and L'Oreal argue that the complaint must be dismissed in its entirety because there is no generally accepted competent medical or scientific evidence to establish that occupational exposure to professional hair dye products can cause MCS, IBM and/or COPD[FN3] .

Defendants' Expert Testimony

Wella and L'Oreal submit the opinions of three medical experts. The first expert, Dr. Howard Kipen, a physician specializing in environmental and occupational medicine, has [*3]authored more than thirty articles in peer reviewed journals on the topic of "multiple chemical sensitivities" and, as a member of the American College of Occupational and Environmental Medicine's ("ACOEM") Environmental Medicine Committee, he participated in the preparation of the ACOEM position paper on "multiple chemical sensitivity". Dr. Kipen reviewed Mr. Coratti's medical records, the pleadings herein, Worker's Compensation records, relevant medical and scientific literature and materials relating to the hair coloring products at issue, and opined, to a reasonable degree of medical certainty, that there is no reliable medical or scientific evidence that Mr. Coratti's symptoms, diagnosed as MCS, IBM and COPD, can be caused by exposure to any of the chemical ingredients, either alone or in combination, which are present in the professional hair care products Koleston Perfect, Color Perfect, Color Touch, Majirel and Majiblond (6/14/06 Curry Aff, Ex. B, paras. 4 & 5). Moreover, Dr. Kipen notes, that, " MCS, as a diagnosis has not gained general acceptance in the medical community" (Kipen Aff. Para. 7).

Defendants' second expert, Dr. Abba Terr, a physician specializing in allergy and immunology, has authored numerous book chapters and articles on topics including allergy and multiple chemical sensitivity. He was principal author of the official position statement of the American Academy of Allergy, Asthma and Immunology ("AAAAI") on multiple chemical sensitivity. The position statement reflects the generally accepted view in that medical community that MCS does not refer to a clinically defined disease and it lacks definitive studies on its causation and etiology. In addition, Dr. Terr states:

As part of my review of the relevant records in this case

I evaluated the list of chemical ingredients in Wella's

products, Koleston Perfect, Color Perfect and Color Touch

and L'Oreal's products Majirel and Majiblond. None of

the chemical ingredients of these hair dye products is known

to cause the complex of complaints made by Mr. Coratti

and which have been diagnosed by his physicians as MCS.

(6/14/06 Curry Aff., Ex. A, para. 20).

Dr. Terr further opines that there is no credible, valid scientific evidence that exposure to hair color, including the ingredients of the Wella and L'Oreal products that Mr. Coratti says he used, can cause COPD or IBM (Terr Aff. Paras. 34 & 42)

Defendants' third expert, Dr. Jerome Block, a specialist in neurology and neuromuscular disorders, states that Mr. Coratti's claim of IBM, or a related illness called polymyositis, is not supported by his medical records or the objective tests conducted by his treating physicians, but, even if he did have those diseases, no scientific evidence exists that supports Mr. Coratti's claim that occupational exposure to hair dyes caused him to develop IBM or polymyositis. (6/14/06 Curry Aff., Ex. C, paras. 26, 27, 28 and 29)

PLAINTIFFS' ARGUMENTS

In opposition to the summary judgment motions, plaintiffs argue that objective testing and medical reports from Mr. Coratti's treating physicians, as well as expert opinion, substantiate that Mr. Coratti's physical injuries and symptoms are causally related to his exposure to hair dyes.

a.. John Coratti's Treating Physicians

1) In February, 2000, Dr. Gabriel Wolfsberger prepared a report for the Worker's [*4]Compensation Board that states that Mr. Coratti's injury occurred because of "exposure to toxic chemicals at work. Namely, hair dyes. Patient has been exposed during years but over past year has developed intolerance" (8/22/06 Thomas Gannon Aff, Ex. C, Question 1).

2) An office visit note dated November 2, 1998, from Dr. Carol Miyake states that Mr. Coratti was seen for a skin rash over his upper back and leg that developed about 24 hours after he first started using a new hair color preparation (8/22/06 Thomas Gannon Aff, Ex. D).

3) Two reports from Dr. David Permutter, a board certified neurologist (12/21/01 and 2/27/03) state that Mr. Coratti suffers from multiple chemical sensitivities (8/22/06 Thomas Gannon Aff., Ex. E).

4) Dr. Compain's July 14, 2000 report states that Mr. Coratti is under his care for Environmental Chemical Sensitivity and Neurotoxicity and that his condition was triggered by exposure to chemicals probably from hair dye in his place of business (8/22/06 Thomas Gannon Aff, Ex. F). In addition, Dr. Compain's February 27, 2003 letter states:

Mr. Coratti has been under my care since May 1998 for a

severe syndrome of neurologic respiratory and musculoskeletal dysfunction. His symptoms began at a time when he was

working as a hairdresser and exposed to numerous potentially

toxic compounds such as aminophenols, toluene,

and resorcinol. These compounds are well known

to cause neuro-cognitive dysfunction, respiratory

symptoms, muscle pain and inflammation. There

is no question that Mr. Coratti's condition has been

caused by these compounds and that this has been a

source of ongoing and progressive disability for him.

(8/22/06 Thomas Gannon Aff., Ex. L).

5) A March 11, 2003 letter from Dr. Hana T. Chiam states:

Mr. Coratti who has never smoked has been under my

care since August 20, 2001 for severe COPD and

polymyositis affecting respiratory and musculskeletor

function. His symptoms began at a time when he was

working as a hairdresser and exposed to numerous

potentially toxic compounds such as aminophenols,

toluene and resorcinol. These compounds are well

known to cause neuro-cognitive dysfunction,

respiratory symptoms, muscle pain and inflammation.

there is no question that Mr. Coratti's condition has

been caused by these compounds and that this has

been a source of ongoing and progressive disability

for him.

(8/22/06 Thomas Gannon Aff., Ex. M). [*5]

6) Plaintiff also cites to the testimony of Drs. Compain and Chiam before the Worker's Compensation Board (6/14/06 Curry Aff., Ex. X & Ex. OO) and their affidavits dated August 18, 2006 and August 22, 2006, respectively, (8/22/06 Thomas Gannon Aff., Exs. R & S) which testimony and affidavits basically restate the information contained in their February 27, 2003 and March 11, 2003 letters.[FN4]

b. Plaintiffs' Expert Testimony

Plaintiffs submit the August 22, 2006 affidavit of William R. Sawyer, Ph. D., a board certified toxicologist who reviewed the affidavits of Drs. Terr, Kipen and Block and conducted laboratory testing and analysis of the products at issue in this case and, based on that testing and analysis, Dr. Sawyer identified specific chemicals, namely phenylenediamaine and/or resorcinol, contained in those products. Dr. Sawyer states that it is well documented in the medical and toxicological literature that those products are skin sensitizers with specific toxicological effects[FN5] (8/22/06 Thomas Gannon Aff., Ex. T, para. 8). Dr. Sawyer cites to the "Textbook of Clinical Occupational and Environmental Medicine"and human epidemiological studies that have found that phenylenediamaine has been noted to sensitize the respiratory system and is associated with asthma and that both chemicals are potent contact allergens positively associated with dermatitis in hairdressers (8/22/06 Thomas Gannon Aff., Ex. T., paras 9 & 10). Dr. Sawyer also points to a study that found rhabdomyolysis, a disintegration of striated muscle fibers, to be a generally accepted toxicological effect of phenylenediamine (8/22/06 Thomas Gannon Aff., Ex. T., para 12). Resorcinol is listed by NIOSH with recognized primary target organ toxicity including eyes, skin, respiratory system, blood, spleen and liver (8/22/06 Thomas Gannon Aff., Ex. T, para. 13).

Dr Sawyer opines that, "Mr. John Coratti was heavily exposed to defendants' products containing phenylenediamine or resorcinol . . . . His exposures included dermal contact, residual buildup of phenylenediamine and resorcinol upon surfaces, instruments and containers as well as direct inhalation or ingestion of aerosols and mists generated during various spray, rinse and cleaning procedures which he performed on an occupational basis" (8/22/06 Thomas Gannon Aff., Ex. T, para. 13).

Dr. Sawyer opines, with a reasonable degree of toxicological certainty, that Mr. Coratti's dermatological condition, rhabdomyolysis[FN6], respiratory impairment including decreased strength in asthma, chest pain and fatigue are causally related to his chronic phenylenediamine and resorcinol exposures (8/22/06 Thomas Gannon Aff., Ex. T, para. 22).

DISCUSSION

A motion for summary judgment must be granted if, upon all the papers and proof submitted, the cause of action in issue has no merit. CPLR 3212(b). Once the movant has made a prima facie showing of entitlement to summary judgment, the opposing party must lay bare its [*6]proof and demonstrate, by admissible evidence, the existence of a factual issue requiring a trial of the action (Zuckerman v. City of New York, 49 NY2d 557 [1980]). Without such evidence the motion will be granted (Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 NY2d 1065 [1979]).

Causation is an essential element of every cause of action in a products liability case, whether the claims are plead in strict products liability, negligence, breach of warranty, fraud or something else (Sita v. Danek Med. Inc., 43 F. Supp. 2d 245 [E.D.NY 1999]; Tardella v. RJR Nabisco, Inc., 178 AD2d 737 [3rd Dept. 1991]). The burden of proving proximate causation rests squarely on the plaintiffs ( see Jerry v. Borden Co., 45 AD2d 344 [2nd Dept 1974]). Plaintiffs must tender admissible evidence demonstrating both "general causation", that the product at issue is capable of causing the type of injury alleged, and "specific causation", that the exposure actually caused the alleged injury (Heckstall v. Pincus, 19 AD3d 203, 204 [1st Dept 2005]). Testimony proffered to show specific causation is irrelevant and unreliable if general causation can not be demonstrated (Raynor v. Merrell Pharms., Inc., 104 F.3d 1371, 1376 [D.C. Circuit 1997]).

None of the parties here has requested a Frye hearing (Frye v. United States, 293 F. 1013 [D.C.C. 1923]) to test the admissibility of plaintiffs' expert opinions, but plaintiffs dispute defendants' assertion that plaintiffs' expert opinions must be analyzed under Frye.

It is clear to this court that not only must plaintiffs' experts opinion be scrutinized under Frye, but additional consideration must be made of the recent and much debated Court of Appeals holding in Parker v. Mobil Oil Corporation (7 NY3d 434 [2005]).[FN7]

In New York, evidence based on novel scientific theories or techniques is considered admissible only upon a showing of general acceptance within the relevant scientific community (People v. Wesley, 83 NY2d 417 [1994]). To prove causation under New York law, a plaintiff must refer "not only to court opinions, but texts, laboratory standards or scholarly articles, as well, in an effort to determine whether a particular concept has been generally accepted by the relevant scientific community" (DeMeyer v. Advantage Auto, 9 Misc 3d 306, 315 [Sup. Ct. Wayne Co. 2005]; see also Lewin v. County of Suffolk, 18 AD3d 621 [2nd Dept 2002]). Once a party has made a prima facie showing that the proposed expert opinion is not reliable or generally accepted, the burden shifts to the proponent to demonstrate the general reliability and acceptance of the proffered testimony (DeMeyer, supra at 320).

In this case, defendants have made a prima facie showing, based on the opinions of Drs. Terr, Kipen and Block, that plaintiffs' theory of causation is not generally accepted within the relevant scientific and medical communities. There are no scientific studies, reports in the [*7]literature, lawsuits or other court proceedings which suggest that occupational exposure to the chemicals contained in L'Oreal's Majirel and/or Majiblond and Wella's Koleston Perfect, Color Perfect and/or Color Touch cause MCS, IBM and or/COPD. Accordingly, the burden now shifts to plaintiffs to establish the reliability and acceptance of their theory of causation (Cameron v. Knapp, 137 Misc 2d 373 [Sup. Ct. New York Co. 1987]).

Dr. Compain

Dr. Compain offers no reliable testimony regarding general causation. His conclusory statement that "(h)airdressers are notorious for having this type of problem . . . ." (6/14/06 Curry Aff, Ex. X, p. 7, li 2-4) is vague, speculative and completely unsubstantiated by any citations to scientific or medical literature. Moreover, his reference to discussions with other environmental physicians regarding undisclosed "case reports"[FN8] regarding chemical sensitivities in hairdressers, electricians, people working in the food processing industry and people working in lumber mills fails to meet the Frye standard of reliability because case reports are not generally accepted in the scientific community on questions of general or specific causation (Heckstall v. Pincus, 19 AD3d at 204). In Casey v. Ohio Medical Products (877 F. Supp 1380, 1385 [N.D. Call 1995]), the court rejected expert testimony on general causation that relied principally upon four case reports and a compilation of case studies, finding:

Such case reports are not reliable scientific evidence of causation,

because they simply described the reported phenomena without

comparison to the rate at which the phenomena occur in the general

population or in a defined control group; do not isolate and exclude

potentially alternative causes; and do not investigate or explain the

mechanism of causation. Even if some credibility were given to the

study, it does not have the degree of clarity required for a validation

of its results or its methodology which is sufficient for objective and

independent peer review.

The case reports Dr. Compain refers to appear to encompass a wide range of chemical sensitivities in a diverse group of occupations that have no connection to hair dye exposure. Thus, any proffered case reports are speculative and unreliable to establish general causation in this matter.

In Pauling v. Orentreich Med. Group (14 AD3d 357 [1st Dept 2005]), lv. denied, 4 NY3d 710 [2005]), the court affirmed the dismissal of causes of action alleging that facial silicone injections over a long period of time caused a systemic disease that plaintiff's expert called "silicone toxicity". The expert's testimony, based on his own observational studies, was completely unsupported. The expert failed to offer any supporting medical literature into evidence and could not point to a scientific organization or national board that has recognized a causal relationship between silicon and systemic disease.

Here, Dr. Compain's opinion is similarly unsupported. His opinion, based on his personal observations, is insufficient to establish that occupational exposure to defendants' hair [*8]dyes can cause MCS, COPPD and or IBM and therefore must be excluded.

Dr. Chiam

Dr. Chiam, a family practitioner, also fails to present any evidence regarding general causation.Dr. Chaim's opinion that Mr. Coratti's symptoms and complaints "may be" related to his workplace exposure, speaks only to specific causation and is based solely on Mr. Coratti's reporting that he feels better when he is not at work. Dr. Chaim's opinion, which is not based on scientific literature or consensus in the medical community is insufficient as a matter of law to establish general causation.

Dr. Sawyer

Although well credentialed, Dr. Sawyer, a toxicologist, does not state that it is generally accepted in the relevant medical community that hair dye can cause MCS, COPD and IBM. Rather, he refers to scientific and peer reviewed studies that have established that phenylenediamaine and resorcinol are potent sensitizers, or allergens, capable of causing dermatitis and respiratory problems and then opines that Mr. Coratti's exposure to phenylenediamaine and resorcinol caused his dermatological condition, rhabdomyolysis, respiratory impairment including decreased strength in [sic] asthma, chest pain and fatigue. There is nothing contained within the scientific and medical literature or, for that matter, Dr. Sawyer's own affidavit, that states that the chemicals in defendants' hair dyes can cause the specific ailments Mr. Coratti complains of here. Dr. Sawyer's expert opinion therefore fails to meet the reliability criteria required under Frye. Moreover, Dr. Sawyer's opinion is excluded for failure to cite any study in the fields of occupational and environmental medicine or allergy, immunology, neurology or virology that establishes that the chemicals phenylenediamaine and resorcinol in defendants' hair dye cause MCS, COPD and/or IBM.

In addition, even if the Frye conditions had been met on the issue of general causation, plaintiffs' experts failed to offer reliable "specific causation" opinions because they have not provided information regarding the amount of the chemicals phenylenediamaine and resorcinol required to cause Mr. Coratti's alleged illnesses and they have failed to quantify Mr. Coratti's exposure (Parker v. Mobil Oil Corporation, 7 NY3d 434 [2005]). It is well established that an opinion on causation should set forth the plaintiff's exposure to the toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation) (Id. at 448; McClain v. Metabolife Intl., Inc., 401 F3d 1233 [11th Cir 2005]; Wright v. Williamette Indus., Inc., 91 F3d 1105 [8th Cir 1996]). The Parker court stated that it is not always necessary for a plaintiff to quantify exposure levels precisely as long as "whatever methods an expert uses to establish causation are generally accepted in the scientific community" (Parker, 7 NY3d 434 at 448).

In Parker, the defendants moved to exclude expert testimony that plaintiff's leukemia was caused by his 17 year occupational exposure to gasoline containing benzene. The Court of Appeals affirmed the First Department's holding that the expert testimony was not admissible because that testimony failed to demonstrate that exposure to benzene caused plaintiff's leukemia, stating:

Dr. Goldstein's general, subjective and conclusory assertion based

on Parker's deposition testimony that Parker had far more exposure

to benzene than did the refinery workers in the epidemiological

studies' is plainly insufficient to establish causation. It neither states [*9]

the level of the refinery workers exposure, nor specifies how Parker's

level exceeded it, thus lacking in epidemiologic evidence to support

the claim.

Dr. Landrigan's submissions are likewise insufficient. He reported

that Parker was frequently' exposed to excessive' amounts of

Gasoline and had intense exposure . . . in both liquid and vapor

Form' which . . . cannot be characterized as a scientific expression

of Parker's exposure level.

Parker, Id at 449

Here, Drs. Sawyer, Compain and Chiam failed to present any evidence as to the dose or concentration of phenylenediamaine and resorcinol that would be necessary to cause Mr. Coratti's alleged MCS, IBM and COPD, the amount of those chemicals in the hairdyes and the possible dose or exposure Mr. Coratti may have had to the chemicals. Dr. Sawyer notesbased on Mr. Coratti's testimony that Plaintiff was "heavily exposed" to defendants' products and that the chemicals in hair dye reached "toxic levels". Dr. Sawyer's vague assertions regarding Mr. Coratti's exposure and toxicity are purely speculative and do not constitute scientifically reliable proof of specific causation.

Based on the above, the court need not reach the alternative arguments the defendants have presented.

Accordingly, because the court finds that plaintiffs have failed to present reliable or admissible expert opinion evidence that exposure to the chemicals in Wella's hair coloring products Koleston Perfect, Color Perfect and Color Touch and L'Oreal's hair coloring products Majirel and Majiblond can cause MCS, IBM and COPD, defendants' motions pursuant to CPLR 3212 for summary judgment dismissing the complaint are granted.

It is therefore

ORDERED that the clerk is directed to enter judgment dismissing the complaint.

This decision constitutes the decision and judgement of the court.

DATE________________________

_____________________________

Hon. Walter B. Tolub, J.S.C. Footnotes

Footnote 1:Toluene is not an ingredient in defendant's hair dye.

Footnote 2:The court notes that the defendants here are neither parties nor in privity with parties in the Worker's Compensation or Social Security Disability proceedings. Accordingly, collateral estoppel does not apply and they are not bound by the determinations made in those proceedings as they did not have a full and fair opportunity to contest the issues in those proceedings (Martin v. Reedy, 194 AD2d 255 [3rd Dept 1994]).

Footnote 3:Defendants assert that a diagnosis of MCS is not recognized by the courts in this state and has not gained acceptance in the medical community. They also contend that Mr. Coratti's alleged COPD and IBM have not been established by objective medical tests.

Footnote 4:Dr. Chiam's August 21, 2006 affidavit and Dr. Compain's August 18, 2006 affidavit and their Workers' Compensation testimony are also considered by the parties, as expert opinions.

Footnote 5:U.S. Department of Health and Human Services National Institute for Occupational Safety & Health (NIOSH), June 1997, pgs. 248-249 (Sawyer Aff, Ex.1).

Footnote 6: Mr. Coratti does not claim to be suffering from rhabdomyolysis.

Footnote 7: New York Law Journal, November 21, 2006, Letters to the Editor, Gatekeeping Message of Parker' Is Clear, p.2, col. 5.

New York Law Journal, November 17, 2006, Letters to the Editor, A Second Interpretation of the Parker' Ruling, p.2, col. 5.

Hoenig, Michael, Parker': A New Era for Gatekeeping Experts?, New York Law Journal, November 13, 2006, Products Liability, November 13, 2006, p.3, col. 1.

Footnote 8:A case report is typically a report by a physician, in a professional journal or at a professional conference, about one or a small number of patients