The Eleventh Circuit Court of Appeals has determined that a lower court erred in excluding non-hearsay statements about a hair dye product in a personal injury lawsuit. Wright v. Farouk Sys., Inc., No. 12-10378 (11th Cir., decided November 29, 2012). So ruling, the court remanded the matter for the district court to consider other objections the defendant made to the wrongly excluded affidavit that contained the admissions of a party opponent.

The issue arose in a case involving a 13-year-old who had blond highlights added to her hair with a hair bleaching system that allegedly burned her scalp and led to a skin graft. She asserted claims for negligent design and manufacture, negligent failure to warn, strict liability, and strict liability failure to warn. After her expert witness was excluded, a ruling she did not appeal, and the party-opponent admissions were excluded as hearsay, the district court granted the defendant’s motion for summary judgment.

The party-opponent admissions were contained in a salon owner’s affidavit recounting a conversation with the company chair. He had allegedly said that the product separates during transport and that shaking it, as the hairdresser here had done according to label instructions, does not adequately re-homogenize the product thus making an untoward or accelerated chemical reaction possible. The district court will decide on remand whether the plaintiff timely disclosed the salon owner as a witness, and if she did not, whether that failure was substantially justified or harmless.