Jim Porter: Liability for a tattoo gone bad?
Special to the Sun
TAHOE/TRUCKEE and#8212; Iand#8217;m not a tattoo guy. When I see a tattoo like and#8220;I love Brendaand#8221; enclosed in a heart, I canand#8217;t help but think that while the tattoo is permanent, Brenda may not be. If Brenda dumps you, itand#8217;s not easy to find another Brenda to match the tattoo. Limits your options. Either that or have the name changed, which is painful. Like Brenda.
What happens if the tattoo artist causes you harm? Like you have an allergic reaction or get an infection?
Donna Hennigan went to Dermatique Day Spa and had owner Alicia White tattoo permanent makeup on her eyebrows. (Permanent makeup saves women from having to apply regular cosmetic makeup on their way to work in the morning).
White applied Premierand#8217;s Brown Suede pigment on Henniganand#8217;s eyebrows. The label on the bottle contained the following notice: and#8220;Warning: This pigment is highly concentrated. Spot testing is required.and#8221; White only did spot testing when customers said they were sensitive or had allergies, so no spot testing was done. Hennigan was so pleased she returned two months later to have Premier Black Magic permanent makeup applied to her eyelids. The honeymoon with Brown Suede and Black Magic didnand#8217;t last long.
About a month after having her eyelids tattooed, Hennigan began experiencing adverse reactions in the area of her eyebrows and eyelids, ultimately one of her eyelids drooped so much she had surgery to repair it. Wait, there is one more fact.
FDA Talk Paper
Right afterward, the federal Food and Drug Administration issued a report, an and#8220;FDA Talk Paper,and#8221; that alerted the public to reports of adverse reactions suffered by those injected with Brown Suede and Black Magic and other pigments manufactured by Premier. No recall was ordered, but Premier pulled some of its pigments and ultimately filed bankruptcy.
Tattoo artist sued
Hennigan filed a lawsuit for negligence and products liability, claiming she was injured by Whiteand#8217;s injecting and#8220;tainted, spoiled, contaminated pigments under her eyelids and her eyebrows.and#8221; White challenged the lawsuit by filing what is called a Summary Judgment motion (just like last weekand#8217;s case). She presented a Declaration from a dermatologist at U.C. San Francisco who stated that allergic reactions to tattooing generally does not occur for years and sometimes decades after application, so a patch test would not have revealed Henniganand#8217;s severe allergic reaction to the permanent pigments.
The trial court threw out Henniganand#8217;s suit. She appealed to the Court of Appeal in Sacramento.
Hennigan claimed that if White had performed the patch test, her unknown allergy would have become apparent and she wouldnand#8217;t have undergone the tattoo treatment.
The Court of Appeal, like the trial court, ruled against Hennigan relying on the dermatologistand#8217;s Declaration that allergic reactions to tattoo pigments do not occur spontaneously and a patch test likely would not have disclosed her allergy to the pigment. No negligence.
Hennigan also claimed the pigment product was defective. By analogy the Court of Appeal discussed a case where a consumer suffered a severe allergic reaction to glue she used to apply artificial fingernails. Boy, use of cosmetics can be dangerous to your health.
The Court of Appeal agreed with the ruling in the glue case, finding: and#8220;A product, faultlessly manufactured and containing no impurities, is not rendered defective and#8230; by the mere fact that it causes injury to certain individuals who, because of hypersensitivity or other peculiarity of makeup (interesting choice of word), suffer an allergenic or idiosyncratic reaction when exposed thereto.and#8221; (Judges and lawyers love to throw in and#8220;theretos.and#8221;)
In other words there was no evidence the pigment was defective, only that Donna Hennigan was allergic to tattoo pigment and#8212; and that doesnand#8217;t amount to negligence or products liability. The result might have been different if the tattoo artist did something wrong such that the tattoo became infected.
A risk Iand#8217;m not going to have to worry about.
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firmand#8217;s website http://www.portersimon.com.
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