Court: United States District Court for the Southern District of Ohio, Eastern Division
Case Name: Kelly v. Bare Escentuals Beauty, Inc.
Citation: 2017 U.S. Dist. LEXIS 150060
The plaintiff was visiting the defendant’s cosmetics store to return a purchased item when a store employee asked if the plaintiff had time for a makeover. The plaintiff agreed to the makeover. According to the plaintiff, the makeup products applied during the makeover were kept open on the counter. These items were used both for makeovers and customer samples. The plaintiff claimed that the employee used non-disposable makeup applicators, some of which came from the employee’s makeup belt. When the employee applied a product, she either returned the applicator to the container and returned the product to its place on the counter, or put the brushes back in her belt. The employee also applied other products to the plaintiff’s face with her fingertips, without using hand sanitizer. Two days after the makeover, the plaintiff developed. Soon afterwards, the plaintiff tested positive for methicillin resistant staph aureus (MRSA). The plaintiff filed a lawsuit against the defendant cosmetics company seeking damages for her injury and retained two infectious disease expert witnesses to support her case.
The Infectious Disease Expert Witnesses
The first infectious disease expert witness was the plaintiff’s own infectious disease doctor who treated her MRSA infection. The expert had examined the plaintiff, consulted the plaintiff’s family history, checked her medical records, and heard about her makeover in the defendant’s store. Based on this information plus his experience in MRSA treatment, clinical management of the infection, and knowledge of its spread, the infectious disease expert concluded, to a reasonable degree of medical probability, that the makeover most likely caused the plaintiff’s MRSA.
The second infectious disease expert concurred with this opinion. The second expert reached his conclusion on the basis of his knowledge of MRSA transmission, consulting the relevant literature, reviewing the plaintiff’s medical history, and deposition evidence.
In reaching their opinions, the experts did not check the makeup samples or brushes. The defendant also argued that they would not have been able to do so because the samples used on the plaintiff would have been entirely used by the end of the shift and the brushes and applicators were cleaned. The defendant also asserted that since the plaintiff did not develop the sty for several days and did not tell the store about her MRSA for more than a month, all potentially MRSA-infected items would have been long gone.
The defendant claimed the infectious disease expert witnesses’ testimony failed to meet the Daubert standard because they depended “only on a superficial association between the plaintiff’s infection and her visit to the store, rather than investigating all possible causes of her MRSA exposure and undertaking a complete diagnostic examination.” Moreover, the defendant claimed that the conclusions of the experts were misleading because they neglected to recognize crucial evidence or possibilities such as the plaintiff’s multiple recurrences of MRSA despite undergoing “decolonization” medication, indicating that she was continuously subjected to MRSA by an undisclosed source. The defendant also argued the experts had not considered the plaintiff’s medical history which included around forty emergency room or hospital room visits in the two years prior to visiting the store, her YMCA membership, or her pets as possible carriers. The defendant also pointed out that the plaintiff was never tested for MRSA or decolonized appropriately as per her doctors’ recommendations and there was the possibility that the plaintiff was an asymptomatic MRSA carrier before getting this active infection.
The court noted that although the plaintiff’s expert witnesses were unable to obtain and evaluate the potentially infectious products for MRSA, they sufficiently relied on their expertise, experience, the plaintiff’s medical background, the nature of her exposure, and the contextual connection between her visit to the store and her outbreak. In the court’s opinion, the defendant did pose legitimate questions about details that the experts might not have known, though, this was a matter affecting reliability and not admissibility.
The defendant’s motion to exclude the plaintiff’s two infectious disease experts was dismissed.