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Court Renews Burn Suit Against Hair Dye Maker

ATLANTA (CN) - The 11th Circuit offered a new shot at relief to a woman who says she needed skin grafts on her scalp after she tried to go blonde at age 13.

"Bob Dylan's recognition that '[b]ehind every beautiful thing there's been some kind of pain' might seem painfully ironic to Amber Wright," according to the opinion authored by Judge Edward Carnes. "Her quest for what she deemed to be more beautiful hair allegedly led not just to pain but also to emotional 'scars that the sun didn't heal,' all of which led to this lawsuit."

Wright went to a salon in Carrollton, Ga., for blonde highlights when she was 13 in February 2005. A licensed master cosmetologist used a Farouk Systems hair-bleaching powder named Blondest Blonde to lighten sections of Wright's hair, court records show.

The cosmetologist, who testified that she was familiar with the product and experienced in its application, did not notice anything unusual while mixing or applying the powder, even though Wright complained that "her head was burning" after a few minutes under a hair dryer.

Nine days after Wright had her hair colored, she went to the emergency room and was diagnosed with a second- and third-degree burn to her scalp. Surgeons later placed a skin graft over a full thickness burn found on Wright's scalp.

The doctor who diagnosed Wright testified that chemical burns like the one she suffered develop over time, so Farouk's product could be responsible.

Wright sued Farouk Systems, alleging that Blondest Blonde was defective, and that Farouk had failed to warn users that the product could cause scalp burns. She retained an expert who testified that Blondest Blonde contains isolated areas of high reactivity, which he called "hot spots."

Those hot spots can generate unintentional heat through a chemical reaction during the mixing process, thus causing burns, the chemist said.

A federal judge granted Farouk summary judgment on all claims and agreed to exclude the chemist's testimony.

The court found that Wright had abandoned her negligent design and manufacture claims, and that the rest of her evidence was inadmissible.

Wright had submitted an affidavit from a salon owner who said that Farouk chairman Farouk Shami had told her in 2006 that it was "highly likely" that Blondest Blonde could separate during transport, potentially causing an "untoward or accelerated chemical reaction."

Though the trial court excluded this testimony as hearsay, Wright argued it was admissible as an admission by a party opponent - a statement made by the company's agent or employee within the scope of his relationship with the company.

A three-judge panel of the 11th Circuit agreed Thursday, finding that exclusion of this evidence constituted an abuse of discretion.

Since Shami was involved in all aspects of the development and marketing of Farouk products, including Blondest Blonde, his alleged statement was within the scope of his employment.

The appeals court declined to say whether the statement could also be excluded because Wright allegedly failed to timely disclose the salon owner as a witness.

Since the trial court did not reach this argument the first time around, it must do so on remand, the appellate judges ruled.

"In exercising its discretion on that issue, the District Court should make findings of fact and explain its ruling, which will enable us to review the ruling for an abuse of discretion if it is appealed," Carnes wrote.

"Even if the District Court concludes that Weiner's affidavit should be excluded under Rule 26, the court should also alternatively rule on Farouk's motion for summary judgment as though that affidavit were not excluded," he added. "That will enable us to decide the case in one appeal, if there is an appeal, and will avoid the risk that another remand might be required."

The judges affirmed summary judgment on the failure-to-warn claims, noting the trial court's decision on this point had been "thorough and well-reasoned."

They also agreed that Wright could not use allegations from other lawsuits against Farouk as evidence.

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