APPEAL from a judgment of the Superior Court of Sacramento County, Loren E. McMaster, Judge. (Super. Ct. No. 04AS01547)
The opinion of the court was delivered by: Nicholson , Acting P. J.
CERTIFIED FOR PUBLICATION
Plaintiff Donna Hennigan sued defendant Alicia White, White's business, Dermatique Day Spa and Permanent Cosmetics, and Premier Pigments, claiming the defendants manufactured and injected defective permanent makeup into her eyelids and eyebrows, causing injuries to her face. She alleged causes of action for negligence and products liability. White moved for summary judgment, and the trial court granted her motion. The court also denied Hennigan's motion for reconsideration.
Hennigan appeals, claiming she established triable issues of material fact to defeat White's summary judgment motion, and she introduced sufficient new evidence to justify granting her motion for reconsideration. We disagree with Hennigan's claims and affirm the judgment.
Hennigan retained White to affix permanent makeup on her eyebrows and eyelids. According to White's opening brief, this is a tattooing procedure whereby pigment is implanted into the desired area. It obviates the need to apply regular cosmetic makeup.
Hennigan first met with White on April 19, 2003. She asked to have her eyebrows done. White used a pigment on Hennigan's eyebrows called Brown Suede. Defendant Premier Pigments (Premier) manufactured Brown Suede. It was part of Premier's True Color Concentrate product line. White had been using Premier's products since approximately 1994.
The label on the pigment bottle contained the following notice: "Warning: This pigment is highly concentrated. Spot testing is required." In her deposition, White stated she did not perform any kind of spot test, or patch test as she called it, on Hennigan's skin prior to applying the pigment. White said it was her practice to perform the patch test only on those customers who said they were sensitive or had allergies. Hennigan did not disclose any such sensitivity to White.
When she did perform patch tests, White did so by scratching the area right behind the ear and putting a little bit of pigment in that area. She chose this area because it was close to the lymphatic system, so if the person was allergic to the pigment, "we get a fairly quick reaction."
Hennigan, however, stated in her deposition that a patch test would not have prevented her injury. She said the test "would have come out as me being fine, and they would have done it [the tattooing procedure], because it took several months for the reaction to take place. And that's why I didn't believe that Dermatique had done anything -- or Alicia White had done anything, other than what she normally did."
About two months after receiving the pigment in her eyebrows, Hennigan returned to White's salon on June 14, 2003 for additional work. White touched up Hennigan's right eyebrow. White also affixed permanent makeup to Hennigan's eyelids. For this application to Hennigan's eyelids, White used another Premier True Color Concentrate pigment called Black Magic.
One month later, in mid-July 2003, Hennigan began experiencing adverse reactions in the area of her eyebrows. By August, she had developed granulomas and a bacterial infection in her eyebrows and eyelids.*fn1 Prednisone prescribed by her doctor helped alleviate some of the adverse effects on the eyebrows and eyelids, but it caused other adverse side effects. Ultimately, one of Hennigan's eyelids drooped to such an extent that she had to undergo surgery to repair it.
In July 2004, the federal Food and Drug Administration (FDA) issued a report called an "FDA Talk Paper" that alerted the public to reports of adverse reactions suffered by those injected with certain Premier pigments, including the Brown Suede and Black Magic pigments of Premier's True Color Concentrate line. The FDA did not order a recall of any product, but noted Premier had voluntarily recalled some of its other pigments. The FDA announced its investigation into the matters, alerted consumers about possible adverse reactions, and asked consumers to report any adverse reactions to tattoos and permanent makeup to the FDA and to state and local authorities.
Hennigan filed a civil complaint for damages in April 2004. She alleged causes of action for negligence and products liability. As for the negligence claim, Hennigan alleged White and the other defendants breached a duty of care "by injecting tainted, spoiled, contaminated pigments under Plaintiff's eyelids and eyebrows." She also alleged White utilized an "incompetent technique" to inject the pigments.
Regarding the products liability claim, Hennigan alleged the defendants manufactured, designed and sold "tainted pigments" which were injected beneath Hennigan's skin.
White filed a motion for summary judgment, or in the alternative, summary adjudication. She claimed Hennigan had failed to introduce any evidence establishing the elements of her negligence and products liability claims. Hennigan herself stated White had done nothing wrong. Also, Hennigan submitted no expert evidence establishing the pigments were defective. The fact that Hennigan suffered an allergic reaction to the pigments did not show the pigments were defective.*fn2
Regarding her failure to use a patch test on Hennigan before applying the pigment, White submitted an expert declaration as evidence that the omission of a patch test did not contribute to Hennigan's injury. The expert, Dr. Whitney D. Tope, professor of clinical dermatology at the University of California, San Francisco, stated allergic reactions to tattooing "commonly do not occur for years, even decades after the application of permanent pigments. Thus, patch tests prior to full application of tattoo/permanent ...