Read the label: part N in a series

A Fayette County, Pennsylvania woman whose use of a hair relaxer left her partially bald admitted that she hadn’t read the instructions, but said Optimum Salon Care Defy Breakage No-Lye Relaxer is in any case too dangerous to be allowed on the market. Judge Thomas Hardiman, writing for a Third Circuit panel, rejected her contentions that the product was defective or, in the alternative, that a reasonable consumer would not have heeded the label warning and directions for use. [Matt Miller, PennLive; Nicholas Malfitano, Penn Record; Chandler v. L’Oreal]


  • The result is correct, but why did this suit get to an appellate court. It should have died when the plaintiff’s lawyer told her she had no case.

    • Plaintiffs lawyers bills by the hour. Unless the client is looking for a contingency fee deal, it’s not in their best interests to tell the client they have no case.

      • Surely most plaintiff’s lawyers prefer to bill on contingency for a products liability claim, no? Although a client willing to burn money might be able to find one to agree to work on hourly.

        • “Surely most plaintiff’s lawyers prefer to bill on contingency for a products liability claim, no?”

          I would think no. They’ll do it because most clients can’t afford to pay hourly up front. However, given a client that has the resources to pay up front, I would think that every lawyer would prefer getting paid up front to a contingency deal no matter how good the client’s case is.

    • SCotUS has upheld medical verdicts against manufacturers who have done absolutely nothing wrong.
      Wyeth was an open-and-shut malpractice case, but the clinic responsible for destroying the patient’s arm had no malpractice insurance. (My own preference is for Federal and/or State backstops for practitioners without malpractice insurance, perhaps financed in part by a levy on jackpot verdicts).)

      Perhaps this plaintiff looked less sympathetic because she had performed the malpractice on herself.

      • Followup. SCOTUS just clarified what constitutes clear evidence regarding FDA labeling of drugs for State Law preemption claims.

        As I’m not a lawyer, I won’t tell you what it means, but its unanimous and not uninteresting reading. Also, its NOT my area of relative expertise.

        Maybe HSC or another, better qualified than I, can provide the cliff notes for those not of a legal bent?

        • At some point I will post a link or two on the decision in Merck v. Albrecht. However, aside from both cases having to do with labeling of products, it was decided on the basis of legal issues remote from those in play here.

        • @CarLitGuy– You are more up to date on this law than I am: I had missed the Merck-Sharp-Dohme case. (IANAL, either.)

  • Thanks Hugo, I’ve always been impressed by your grasp, simply assumed you were a lawyer.

    and I’m “up to date” only because this is the time of year I start my mornings with a cup of coffee, Overlawyered, Volokh, the stock markets for a bit, and then (if its the right day of the week) ScotusBlog to read the livestream of court announcements. Became furious, years ago, w/ TV reporting on decisions and have made a habit of reading them for myself ever since.

    Had it not been so very recent, I’d likely have forgotten it myself.

    As a Policy Matter, I didn’t care for the outcome in Wyeth, and MSD seemed like a “well, duh!” decision to me.