Opinion
103034/05.
Decided March 15, 2006.
Upon the foregoing papers, it is ordered that: This action is brought by eleven plaintiffs who claim that a hair-straightening product, manufactured and sold by the defendant, caused damage to their hair and scalp. The product is called "Easy Straight Hair Straightening System." The plaintiffs allege that the defendant was aware that the Easy Straight product can cause damage to the hair and scalp but failed to warn them or other consumers of this possibility anywhere in its packaging or on its website. The complaint asserts seven causes of action, which include allegations of deceptive business practices, in violation of General Business Law §§ 349, 350, 350-a and 350-e, common law fraud and negligent misrepresentation. It also includes individual claims for the named plaintiffs for breach of warranty, negligence and strict products liability. The plaintiffs seek injunctive relief, attorney's fees and treble damages, pursuant to the GBL and CPLR article 9.
The plaintiffs now move for an order, pursuant to CPLR 902, certifying that this action shall be maintained as a class action. They seek the certification of two separate classes. The first class would consist of all persons who purchased, obtained or used the product after reading the product's packaging or the defendant's website, irrespective of whether their scalp or hair was damaged thereby. The second class would consist of all persons who suffered personal injury as the result of their use of the product.
CPLR 901(a) authorizes a class action if (1) the class is so numerous that joinder of all members is impracticable, (2) questions of law or fact common to the class predominate over any question affecting only individual members, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, (4) the representative parties will fairly and adequately protect the interests of the class and (5) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. See Friar v. Vanguard Holding Corp., 78 AD2d 83, 90-91 (2nd Dept 1980).
As a threshold matter, the court notes that on a motion for class action certification, judicial inquiry into the merits is limited to a determination as to whether on the surface there appears to be a cause of action which is palpably without merit. See Brandon v. Chefetz, 106 AD2d 162, 168 (1st Dept 1985). Here, the plaintiff has failed to persuade the court that a person who has not been injured by his or her use of the Easy Straight product has any viable cause of action against the defendant merely because the product may have damaged the hair or scalp of other users and the manufacturer or seller failed to disclose this fact or provide a warning. The court therefore declines to certify the first proposed class since its composition is based on the plaintiffs' argument that the mere purchase or use of Easy Straight is actionable even without any injury.
As to the second proposed class, the defendant opposes certification on the ground that this action does not present common questions of fact regarding the claims of the individual class members. The court agrees. In Rosenfeld v. A.H. Robins Co., Inc., 63 AD2d 11, 17-18 (2nd Dept 1978), a products liability and breach of warranty case in which the plaintiffs alleged that they were injured as a result of their use of an intrauterine device known as the Dalkon Shield, the Second Department denied certification on the ground that the question of causality had to be determined on a case-by-case basis. The court held that even if the Dalkon Shield were found to have been defectively designed, the alleged injuries of some of the proposed class members may nevertheless have resulted from a variety of factors completely unrelated to the use of the shield, reflecting their individual use or physical peculiarities. Id. at 17. The court also noted that the proposed class members had suffered different types of injuries.
In reaching its decision, the court in Rosenfeld favorably cited a commentator who had concluded that personal injury, as opposed to property damage, product liability cases are not amenable to class action treatment in view of the difficult questions of causation and the extent of injury. See Rosenfeld v. A.H. Robins Co., Inc., 63 AD2d at 15-16. Indeed, not one of the many CPLR article 9 class action cases cited by the plaintiff involved the use of a product which allegedly caused physical injury to the members of the class. Nor has the court found any such case.
Here, as with the Dalkon Shield, even if there is some ingredient in Easy Straight which can damage one's hair or scalp, it cannot be inferred that each and every person who suffered any such damage after using the product suffered this damage as a result of the presence of this ingredient. As the defendant points out, scalp or hair damage may reflect, in some instances, predisposing factors, such as an allergic or idiosyncratic response to certain stimuli, as well as the manner in which the product is used. Moreover, as with the Dalkon Shield, it appears that the proposed class members have allegedly suffered different types of injuries, ranging from merely dull hair to broken hair strands, to the loss of hair and to scalp injuries. Under the circumstances, the court is persuaded that the claims raised herein are not amenable to class certification and that plaintiffs' request for the certification of the second proposed class should also be denied. See Lieberman v. 293 Mediterranean Market Corp., 303 AD2d 560 (2nd Dept 2003).
Accordingly, the plaintiffs' motion for class certification is hereby denied in its entirety.
The parties shall appear before the court in Room 412, 60 Centre Street, New York, New York on April 11, 2005 at 10:30 a.m. for a preliminary conference.