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Miller v. Coty, Inc.

United States District Court, W.D. Kentucky, Louisville

February 20, 2019

MAY MILLER and TIMOTHY MILLER PLAINTIFFS
v.
COTY, INC. and COTY US, LLC DEFENDANTS DN 116-1, PageID# Bates ID Complainant

          MEMORANDUM OPINION AND ORDER

          Charles R. Simpson III, Senior Judge.

         I. Introduction

         This matter is before the Court on Plaintiffs' proffer of consumer complaints in compliance with the Court's December 12, 2018 Order (DN 98). DN 116. The Defendants responded to Plaintiffs' proffer of consumer complaints (DN 120), to which Plaintiffs replied (DN 125). Following an extensive review, the Court will allow Plaintiffs to offer some consumer complaints at trial on the grounds that the complaints are “substantially similar” to the injury in this case, while excluding others.

         II. Background

         On December 12, 2018, this Court ruled on a motion in limine of Defendants Coty, Inc. and Coty, US, LLC (collectively, “Coty”) to exclude evidence concerning prior consumer complaints. In its December 12, 2018 Memorandum Opinion, the Court detailed the Sixth Circuit standard for evaluating the admissibility of consumer complaints:

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).

         In this case, May Miller sustained an injury while using a “Sally Hansen Extra Strength All-Over Body Wax Kit.” DN 68, at 1. Specifically, the injury occurred while Timothy Miller was waxing May's pubic area. Id. at 2. The injury occurred while Timothy was waxing a section of hair on May's left labia majora. Timothy explained that he applied the wax to May's left labia majora, held the skin taut, and pulled the strip. DN 53, Ex. 1, 16-18. As he pulled the strip, the skin on May's labia majora tore and May started bleeding. Id. at 18; DN 53, Ex. 2, 40. Immediately following the injury, May experienced bruising and swelling around the injury site. DN 53, Ex. 2, 42.

         Based on the “substantially similar” standard, the Court excluded consumer complaints a) involving an injury with no reference to the consumer's bikini, vaginal, pubic, or genital area; and b) regarding the Sally Hansen Lavender Wax Kit. DN 98. The Court also held that, without more context, it could not rule on the remaining consumer complaints. Accordingly, the Court ordered Plaintiffs to proffer any of the remaining consumer complaints if they wished to introduce the complaints at trial. However, in keeping with the “substantially similar” standard, the Court provided parameters for the remaining consumer complaints. Thus, the Court's December 12, 2018 Order permitted Plaintiffs to proffer prior complaints from (1) the Sally Hansen Extra Strength All-Over Body 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. Id.

         III. Discussion

         Plaintiffs' proffer contains individual adverse event reports, in addition to a spreadsheet containing thousands of complaints wherein Plaintiffs highlighted the complaints they wish to admit at trial. Coty has briefed their objections utilizing a table. The Court finds that method is also appropriate to organize its analysis of the complaints. The adverse event reports contain the full names of the complainants, while the spreadsheet contains only first names. The Court will use the complainants' initials instead of the full name to identify the complaint, but will use the first name where only the first name is given.

         A. Consumer Complaints from the Lavender Spa Wax Kit

         Plaintiffs acknowledge the Court's Order precluding introduction of consumer complaints concerning the Lavender Wax Kit. DN 116. Plaintiffs state that “Coty insufficiently segregates consumer complaints based on wax types, ” and Plaintiffs “specifically omitted Lavender Wax complaints which were unambiguous based on consumer reference.” Id. (emphasis added). Purportedly this means Plaintiffs proffered complaints that were ambiguous regarding which product the consumer used.

         The proffered complaints contain three different Item/UPC codes: 1) “Sally Hansen Spa Wax Hair Removal Kit for Body;” 2) “SH Brazilian Extra Strength Wax Hair Removal Kit for Body;” and 3) “SH Brazilian Extra Strength All-Over Body Wax Kit.” Compare for example DN 116-1, at PageID# 1168 and DN 116-1, at PageID# 1165 and DN 116-1, at PageID# 1192. Coty objects to admission of any complaint containing the “Sally Hansen Spa Wax Hair Removal Kit for Body” Item/UPC code, asserting that those complaints are from the Lavender Wax Kit and are in violation of the Court's Order. DN 120, at 2 (citing Exhibit 3). In Plaintiffs' Reply, Plaintiffs “[u]pon ...


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