LITTLE ROCK, Ark. (Legal Newsline) - An Arkansas Supreme Court justice, in a recent dissenting opinion, said she worries her peers have contributed to a trend that is eroding a citizen's constitutional right to a trial by jury.
16, Justice Josephine Linker Hart said she disagreed
with her peers' decision to dismiss Lakeshia Chandler and Jasmine
Davis v. Wal-Mart Stores Inc., L’Oreal USA Inc. and
L’Oreal USA Products Inc.
Hart argues in her dissenting
opinion that the court's decision to grant a summary judgment despite
the presence of clearly disputed facts and matters of witness
credibility constitutes a failure of the judiciary to do its job.
the case, the plaintiffs assert Davis, 13, applied a
product called Garnier Fructis Sleek and Shine Anti-Frizz Serum to
her hair and then began to comb it with a metal comb that had been
heated up using a gas stove. Almost immediately after the comb came into contact with
her hair, her head, arms and upper body were engulfed in flames.
their complaint, the plaintiffs claimed the hair product contains
two primary ingredients, cyclopentasiloxane and dimethiconol, which
are known to be flammable. Further, the complaint alleged testing had shown that when a hot comb was used on hair treated with
the product, the hair began to smoke. For this reason, they asserted
that Garnier Fructis Sleek and Shine Anti-Frizz Serum
was defective and that the defendants had failed to adequately warn
consumers about the danger.
defense countered by providing excerpts from Davis' own deposition in
which she said her hair had ignited after roughly one hour of
applying the hot comb, presenting a picture of the comb's charred
wooden handle and excerpts from the deposition of the plaintiff's
medical expert stating he had not seen or inspected the charred
comb or the gas stove used by Davis.
notes in her dissent that both the state Supreme Court and the trial
court dismissed Davis' claims on the basis that her expert witness,
Dr. Harold Ziegler, admitted he failed to eliminate every other
possible cause of the fire that lead to her injuries, and decided
this admission warranted dismissal of the case on summary
her response, Hart criticized this decision.
who have actually tried a lawsuit know, or should know, that a line
of questioning of an expert witness in which he or she is confronted
by other possible theories that he or she likely has not considered
is nothing more than an impeachment technique to be used in
cross-examination," the judge wrote. "Again, while these
alternative theories may have undermined the credibility of Dr.
Zeliger, whether to believe him should still remain the province of
pointed to the court's 1998 decision in Wallace v. Broyles as establishing a legal
precedent that summary judgments should only be used in cases that
required a drastic remedy.
Hart said just as in Wallace, the judges in the current case have
usurped the plaintiff's rights to a trial by jury.