United States District Court, W.D. Kentucky, Louisville
MEMORANDUM OPINION AND ORDER
Charles R. Simpson III, Senior Judge.
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.
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
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.” 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.
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.
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.
Consumer Complaints from the Lavender Spa Wax Kit
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.
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 ...