PHILADELPHIA – Along with its co-defendant, CVS is seeking a confidential protective order in litigation filed by a Delaware County man, who alleged he suffered permanent vitiligo from using the products he purchased at one of its local pharmacy stores.
Timothy Moore and Jean Moore first filed suit in the Delaware County Court of Common Pleas on Jan. 20 versus Combe Incorporated of White Plains, N.Y. and CVS Health Corporation of Woonsocket, R.I.
“Defendant Combe markets Just For Men hair dyes for application to hair on the scalp, moustache, and beard, with the intent of improving and/or altering hair and facial hair color. Just For Men products contain multiple ingredients, including a chemical known as p-Phenylenediamine. When PPD comes in contact with the skin, there are certain known health risks, including irritation, soreness, redness, itching and burning, as well as allergic reactions,” the suit said.
“In 2017, plaintiff, Timothy Moore, began using Just For Men products to reduce the greying of his hair. Plaintiff Moore would purchase the Just For Men products from defendant CVS at various locations throughout Delaware County, where defendant regularly sold Just For Men products in its retail stores. From 2017 through 2020, plaintiff Moore began noticing the patches of vitiligo and/or skin depigmentation spread across his scalp and his body.”
Over that three-year time period, Moore estimated he used Just For Men products between 50 and 75 times. Not until October 2020, when he ordered the products online through CVS’s website, the suit says, did Moore learn that using the products came with a risk of developing vitiligo and/or skin depigmentation.
The plaintiff believed the defendants failed to properly warn of the risks associated with using the Just For Men products.
“Neither plaintiff Moore, nor any of his medical providers, suggested or learned that the Just For Men products were the cause of his vitiligo until October of 2020. It is believed, and therefore averred, that the vitiligo experienced by plaintiff Moore is permanent,” the suit stated.
Combe Incorporated filed to remove the case to federal court on Jan. 25, citing that this is “a civil action between citizens of different states in which the amount in controversy exceeds the sum of $75,000, exclusive of costs and interest.”
“Plaintiffs allege that they are citizens of Pennsylvania. Combe is now and was at the time plaintiff commenced this action, a Delaware corporation with its principal place of business in White Plains, N.Y. Upon information and belief, CVS is a Rhode Island corporation with its principal place of business in Woonsocket, R.I. Accordingly, there is complete diversity between plaintiffs and all defendants under 28 U S C Section 1332(a) because no defendant is a resident of the same state as either plaintiff,” the removal notice said.
“It is obvious from a common sense reading of the complaint that plaintiffs are alleging damages in excess of $75,000. Each plaintiff seeks damages ‘in excess of $50,000, and plaintiff Timothy Moore seeks economic and non-economic damages for ‘serious and permanent injuries’ and ‘disfigurements that he sustained to his scalp and body, and for which he may continue to require future medical care and treatment.’ Accordingly, the amount in controversy is satisfied here, rendering this matter properly removable pursuant to 28 U.S.C. Section 1332 and 1441(b).”
On Feb. 11, Combe Incorporated answered the complaint, admitting that while one component of the product in question is an allergen, the product’s label contained proper warning of that fact. The company denied all of the remaining allegations.
“Combe admits only that PPD, an ingredient in Just For Men products, is a known allergen, and that at all times relevant to this lawsuit, Just For Men products included warnings that some consumers may be allergic to or may develop an allergy to the product,” the answer stated.
“These warnings are prominently displayed and included with the product packaging of every Just For Men product. Combe denies all remaining allegations both factually and as containing conclusions of law to which no response is required in paragraph 10 of plaintiffs’ complaint.”
Combe Incorporated also provided 31 separate affirmative defenses in response to the complaint.
“The complaint fails to state a cause of action upon which relief can be granted against Combe. Any injuries and/or damages sustained by plaintiffs, as alleged in the complaint herein, were caused in whole or in part by the contributory negligence and/or culpable conduct of plaintiffs and not as a result of any contributory negligence and/or culpable conduct on the part of Combe. Plaintiffs are guilty of comparative culpable conduct and plaintiffs’ respective recoveries, if any, should be diminished in proportion to their relative amount of comparative fault,” the defenses read, in part.
“If plaintiffs sustained the injuries alleged in the complaint, said injuries were the proximate result of plaintiffs’ misuse or abuse of the product at issue herein. Plaintiffs failed to follow the instructions for use, including failing to properly follow instructions for performing the Skin Allergy Patch (Alert) Test. If plaintiffs sustained the injuries alleged in the complaint, there was an intervening or superseding cause or causes leading to said injuries, and therefore, any action on the part of Combe was not the proximate or competent producing cause of plaintiffs’ injuries. The events complained of in plaintiffs’ complaint resulted from the actions of other parties, the plaintiffs, or non-parties, none of whom are under the control, supervision, or direction of Combe. Combe reserves the right to specifically identify any person or entity.”
CVS also filed an answer to the complaint on March 21, putting forth 31 identical affirmative defenses to that of its co-defendant.
UPDATE
The defendants motioned for a confidential protective order on June 16, to cover proprietary and other information which may cause commercial harm if given wider disclosure.
“Defendants Combe Incorporated and CVS Health Corporation, and with the consent of plaintiffs, hereby move the Court for entry of the attached stipulated confidentiality order. Pursuant to the Court’s pre-trial procedures, the parties’ stipulated confidentiality order states good cause for entry of the order, including but not limited to defendants’ anticipation that they may disclose documents containing confidential trade secret information and other information which, if disclosed, could cause commercial harm to defendants,” the motion stated.
For counts of negligence, strict liability, breach of warranty and loss of consortium, the plaintiffs are seeking damages, individually, jointly and/or severally, against defendants in an amount in excess of $50,000, together with interest, costs of suit, delay damages, any and all other relief this Court deems necessary, appropriate and just, in addition to a trial by jury.
The plaintiffs are represented by Matthew J. Bilker of Eckell Sparks Levy Auerbach Monte Sloane Matthews & Auslander, in Media.
The defendants are represented by Molly C. Reilly of Reilly McDevitt & Henrich in Philadelphia, plus James Emanuel and Stephen G. Strauss of Bryan Cave Leighton Paisner, in St. Louis, Mo.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-00320
Delaware County Court of Common Pleas case CV-2022-000401
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com