United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, Senior Judge
matter is before the Court on motion in limine of
the Defendants Coty, Inc. and Coty, US, LLC (collectively,
“Coty”) to exclude evidence concerning prior
consumer complaints. (DN 55). Plaintiffs May Miller and
Timothy Miller (collectively, “Plaintiffs”) have
filed an omnibus motion in limine (DN
For the reasons set forth below, Coty's motion will be
granted in part and denied in
part. The Court likewise will deny
Plaintiffs' sixteenth motion in limine to
exclude evidence of the number of products sold by Coty.
Plaintiffs' remaining motions in limine will be
Evidence Concerning Consumer Complaints
seeks to exclude evidence concerning “consumer
complaints generated by Coty with regard to the Sally Hansen
Extra Strength All-Over Body Wax Kit and the Sally Hansen
Lavender Wax.” (DN 55, at 1). Coty argues that evidence
of these consumer complaints is irrelevant because Plaintiffs
“have failed their burden of establishing that those
complaints are substantially similar to the underlying facts
in this case.” (Id. at 5).
concede “any complaint that does not reference an
injury or any phrase or word that can be defined as
referencing ones [sic] bikini, vaginal, pubic or genital area
is irrelevant and inadmissible.” (DN 61, at 1).
However, Plaintiffs assert that certain prior complaints are
admissible “demonstrate Defendants were on notice of
consumers using their product in their bikini, vaginal, pubic
or genital area.” (DN 61, at 4).
Sixth Circuit provides the applicable standard:
As a threshold matter, prior accidents must be
‘substantially similar' to the one at issue before
they will be admitted into evidence. Koloda v. General
Motors Parts Div., General Motors Corp., 716 F.2d 373,
376 (6th Cir. 1983). Substantial similarity means that the
accidents must have occurred under similar circumstances or
share the same cause. See Brooks v. Chrysler Corp.,
786 F.2d 1191, 1195 (D.C. Cir.), cert denied, 479
U.S. 853, 107 S.Ct. 185, 93 L.Ed.2d 119 (1986)
(“[e]vidence of prior instances is admissible on the
issues of the existence of a design defect and a
defendant's knowledge of that defect only if a plaintiff
shows that the incidents ‘occurred under circumstances
substantially similar to those at issue in the case at
bar'”) (quoting McKinnon v. Skil Corp.,
638 F.2d 270, 277 (1st Cir. 1981)) … The Plaintiff has
the burden of proving the substantial similarity between
prior accidents and his own. Lewy v. Remington Arms
Co., 836 F.2d 1104, 1109 (8th Cir. 1988).
Rye v. Black & Decker Mfg. Co., 889 F.2d 100,
102 (6th Cir. 1989).
case, May Miller sustained an injury while using a
“Sally Hansen Extra Strength All-Over Body Wax
Kit” (“Product”). (DN 68, at 1).
Specifically, the injury occurred while Timothy Miller was
waxing May's pubic area. (Id. at 2).
Plaintiffs' response, Plaintiffs concede “any
complaint that does not reference an injury or any
phrase or word that can be defined as referencing ones [sic]
bikini, vaginal, pubic or genital area is irrelevant and
inadmissible.” (DN 61, at 1) (emphasis added).
Plaintiffs seem to suggest that “any complaint
referencing torn, ripped, or lacerated skin, as well as
bleeding, scabs or stitches” is “substantially
similar” to the incident at issue because plaintiff
“suffered a severe laceration from the use of
Defendants [sic] product…” (Id. at 3)
(emphasis added). Plaintiffs claim there are 268 complaints
which are associated with “ripped, torn or lacerated
skin, as well as bleeding, scabs and stiches.”
(Id. at 3). Of these 268 complaints, 120 complaints
are associated with the removal of the product “from
the consumers' bikini, central and vaginal areas,
including the vulva, labia and labia minora.”
(Id. at 3-4). To the extent Plaintiffs deem
admissible and relevant prior complaints referencing torn,
ripped, or lacerated skin without regard to body part, we
disagree. An injury sustained while waxing a different body
part - a leg or eyebrow for instance - would not have
“occurred under similar circumstances” as the
incident here. Consumer complaints involving an injury with
no reference to the consumer's bikini, vaginal, pubic, or
genital area will be excluded because they are not
substantially similar and would likely result in confusion of
the jury as to how that evidence should be used.
consumer complaints with regard to the Sally Hansen Lavender
Wax are not “substantially similar” to the
incident in this case because those complaints involve a
different product which has its own labeling and warnings.
Consumer complaints regarding the Sally Hansen Lavender Wax
Kit will be excluded because they are not substantially
similar and would likely result in confusion of the jury as
to how that evidence should be used.
more context, however, the Court cannot rule on the remaining
prior complaints. Accordingly, Plaintiff may proffer prior
complaints from (1) the Sally Hansen Extra Strength All-Over
Box Wax Kit, which (2) involved an injury (3) associated with
the removal of the product from the consumer's bikini,
vaginal, pubic, or genital area.
Evidence of the Number of Products Sold by Coty
ask the Court to exclude any reference “to the number
of products sold by the Defendants.” (DN 56, at 6). In
support of this motion, Plaintiffs rely upon ...