by Sterling Anthony, CPP, expert witness in packaging, marketing, logistics, human-factors, and warnings.
Synopsis
A woman who wore contact lens purchased a Halloween Cat Makeup Kit that included false eyelashes and the adhesive for applying them. Her husband assisting, they applied the eyelash on the right but the one on the left would not stay affixed. During several tries, she began experiencing pain in the left eye. After flushing the eye with water, she gave up on the left eyelash and then removed the one on the right.
Over a matter of hours, the pain in the left eye increased, causing the women to go to the hospital. The contact lens in her left eye had become glued to her cornea and had hardened, such that it had to be scraped off. She incurred permanent damage to that eye, despite subsequent surgery.
The woman and her husband brought suit against the marketer of the Halloween Cat Makeup Kit and the retailer, alleging defective packaging and failure-to-warn.
I was retained by the attorney for Plaintiff.
My opinions
A common warning in the cosmetics industry is that contact lens wearers should not wear false eyelashes because the adhesive can damage the lens. Although that warning addresses damage to the lens and not to the eye, had that warning been given, it would have dissuaded the Plaintiff from using the false eyelashes.
Since there are 30 million contact lens wearers in the U.S., with two-thirds being female, it is reasonably foreseeable that, a Halloween Cat Makeup Kit that includes false eyelashes and adhesive, marketed to women, would be purchased by more than an incidental number of contact lens wearers.
It is reasonably foreseeable that not every wearer of contact lenses is a wearer of cosmetics, in general, or a wearer of false eyelashes, in specific; therefore, there was a need to warn, vis-à-vis the associated hazards.
There was a failure-to-warn because there was nothing that addressed the specific hazard of damage to the eye caused by adhesive on a contact lens.
There was a defective package design, in the form of a 0.5 oz. needle-nose metal tube, which did not allow controlled, consistent dispensing, increasing the possibility that adhesive could get into the eye.
The small size of the adhesive package limited its effectiveness as a medium for warnings; however, well-designed, conspicuous warnings could have, and should have, been provided on the carton that contained the kit and even on a leaflet placed inside the carton.
The promotional copy on the carton emphasized how easily and how quickly the consumer can transform herself into a sexy feline. A rational consumer would be justified in concluding that the kit posed no hazards, especially given the absence of warnings.
When adhesive gets into the eye, flushing with water is a reasonably foreseeable response; however, the adhesive can harden despite the flushing.
The adhesive is colorless; therefore, it can remain in the eye and on a contact lens, although the wearer might believe that flushing has removed it.
Result
The case settled.
Sterling Anthony, CPP, is located at 100 Renaissance Center-43176, Detroit Michigan 48243. Phone: 313-531-1875. thepackagingexpertwitness@gmail.com. www.thepackagingexpertwitness.com