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Testimony on Allegedly Defective Product Should Not Have Been Excluded as Hearsay – Wright v. Farouk Systems Inc.

By December 7, 2012July 16th, 2019Burn Injuries, Product Liability

As a Missouri product liability lawyer, I was interested to see a case involving a rare reversal of a district court’s summary judgment. In Wright v. Farouk Systems Inc., Amber Nicole Wright sued the maker of a hair-bleaching product, alleging it was defective because it contains “hot spots” of high concentration that can burn the user, and also fails to warn users that it can burn the skin. Wright was burned in a Georgia salon in 2005, and alleged physical, mental and emotional pain. A Georgia district court granted summary judgment to Farouk Systems, refusing to hear evidence it felt was hearsay from the owner of the salon where Wright was burned. However, the Eleventh U.S. Circuit Court of Appeals found it wasn’t hearsay and thus, it was an abuse of discretion to exclude it.
Wright was 13 years old when she visited a salon in Carrollton, Georgia to get highlights for her hair. The cosmetologist used two Farouk products, a bleach powder and a peroxide solution, saw no problems when she mixed them as directed, and applied them to sections of hair that were wrapped in foil to protect the scalp. Wright was placed under a hair dryer to wait for the bleach to work, but complained of a burning scalp after four minutes. Salon employees saw no burns, but stopped the treatment early. Nine days later, Wright was diagnosed with a full thickness burn to her scalp, ultimately requiring a skin graft. Her lawsuit alleged negligence, strict liability and failure to warn against Farouk. In opposing Farouk’s motion for summary judgment, Wright noted that evidence supporting her case included an affidavit from a salon owner who claimed Farouk’s chairman had told her one of the products tended to separate, not just her expert’s testimony. Nonetheless, after excluding Wright’s expert, the court granted summary judgment to Farouk.
Wright appealed, arguing that the district court should have considered the affidavit before granting summary judgment on the grounds that she hadn’t presented enough evidence. The Eleventh Circuit agreed. The affidavit was submitted in writing by the salon owner, who was reporting on a conversation with Farouk’s chairman, Farouk Shami. Shami was clearly an agent of the company, and the court found that his statements were made about a matter within the scope of his relationship with the company—problems with the bleaching product. Thus, the court found, the statement was not hearsay, but an admission by a party opponent and thus admissible, according to the Federal Rules of Civil Procedure. Shami argued that the court should not have considered the statements because Wright never disclosed the salon owner as a witness. The trial court never considered this issue, so the Eleventh Circuit directed it to investigate and document the issue on remand.
As a St. Louis defective product attorney, I notice that none of these issues are about whether the product was actually defective. Though it’s common for courts to get bogged down in issues unrelated to the merits of the case, I find it disappointing, because the most important part of any defective products case is whether the product is a danger to the public. If Shami’s statement is correct that the bleaching product carries a risk of severe burns—and is being re-formulated as a result—that’s strong evidence to support Wright’s lawsuit. Discussing it in open court could not only help Wright, but also protect other potential victims by giving them notice of the risk. In my work as a southern Illinois product defects lawyer, I am proud to be able to help clients and the public in this way.

Carey, Danis & Lowe represents clients who were seriously injured or lost a loved one in an accident that was no fault of their own—including encounters with unreasonably dangerous products. To tell us your story and learn more about your rights, call us today at 1-877-678-3400 or send us a message through our website for a free consultation.
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