EAST ST. LOUIS – Two experts failed to connect Nivea firming hydration lotion to a consumer’s skin damage, U.S. District Judge David Dugan ruled on March 23.
He granted summary judgment against Mahogany Bolden of St. Clair County on March 23, finding no evidence of a defect in formula or design.
“At best, plaintiff speculates that something in the lotion caused her skin to react in such a way as to cause her injuries,” Dugan wrote.
“However, speculation, guess or conjecture is insufficient to avoid summary judgment.”
He found neither of Bolden’s experts, dermatologist Porcia Love or psychologist Ilene Zackowitz, provided an opinion as to what was wrong with the lotion.
He indicated in a footnote that if the case had gone to trial he would have granted a motion to exclude them.
Brian Wendler of Edwardsville filed suit for Bolden at St. Clair County circuit court in 2020, against Wal-Mart and lotion maker Beiersdorf Inc.
Wendler claimed that in 2018, Bolden bathed and applied lotion to her legs, buttocks, stomach, and breasts.
He claimed she felt a burning sensation on her breasts within seconds, and she washed it off with soap.
He claimed she continued to experience flares and she took over the counter medication for them.
Wal-Mart and Beiersdorf removed the complaint to district court, asserting diverse citizenship as businesses in Arkansas and Connecticut.
Wal-Mart and Bolden stipulated to dismissal last year.
Beiersdorf moved for summary judgment, relying on testimony of research manager John Volpe and quality manager Laura Santos.
Volpe said two clinical tests indicated the lotion was well tolerated and marketable.
He said an exaggerated test, attempting to trigger a response, showed it didn’t irritate and was skin tolerant.
He said Beiersdorf sold more than a million and a half bottles of it per year.
Santos said Beiersdorf received 54 formal complaints in four years.
She said formal complaints result in providing questionnaires for customers to return with records and samples.
In Beiersdorf’s view, 54 complaints from six million bottles represented success.
In Bolden’s view, 54 complaints proved Nivea needed to warn buyers.
In Dugan’s view, he couldn’t find a defect.
He wrote that in Illinois, a faultless product is not rendered defective if it injures “certain individuals who because of hypersensitivity or other peculiarity of makeup suffer an allergenic or idiosyncratic reaction.”
He quoted Seventh Circuit precedent that a consumer who suffers an allergic reaction to a product without any identifiable defect may not invoke the doctrine of strict liability.
“Plaintiff has presented no evidence indicating that the lotion posed a risk of harm to the ordinary consumer beyond her specific reaction,” Dugan wrote.
He found dermatologist Love was unable to identify an ingredient that caused the reaction or to give an opinion on the lotion’s safety for an average consumer.
He found no indication that she extrapolated her opinion from identifiable or reliable information.
He found she based her opinion “on her assumption that because plaintiff suffered an injury, the lotion was a contributing cause.”
He found Love didn’t negate the possible secondary causes, and he quoted Bolden’s testimony that she applied other products near the time of her reaction.
He found psychologist Zackowitz focused on human factors in the effectiveness and efficiency of work systems.
He found she opined that consumers needed to know about reactions to products and had a right to understand everything they could about products they buy.
He quoted from her deposition that counsel asked what caused the hazard and she said, “Exposure to the product, presumably.”
Counsel asked what in the product caused that and she said, “That’s outside of my area of expertise.”
Counsel asked if it was true that she didn’t know what in the formula caused skin irritation, and she said that was correct.
Dugan found neither Love nor Zackowitz furnished an opinion on whether label warnings were sufficient under law or regulation or within the cosmetic industry.
In a footnote he stated it was unnecessary to address the question of barring the experts, but he held them to that standard anyway.
He found neither of them suggested their theories and analyses were generally accepted in the relevant scientific, technical or professional community.
“Both offer little in the way of methodologies and principles that support their opinions and express nothing more than a bottom line,” he wrote.