When I first read about Louisiana resident, Tessica Brown spraying Gorilla Spray Adhesive on her hair, my first instinct was to say “unbelievable”. But then a friend, making conversation, asked me, as a lawyer specializing in accident and injuries matters in New York, would I pursue her case if she called. That prompted me to do some research and I concluded that if this happened in New York, I would. Yes, those against tort reform will immediately object and say “those darn lawyers will sue anyone to make a buck”, but let me explain my analysis.
This company makes a product that is glue – it is permanent – it is flammable – it causes major skin irritations and eye irritations.
And yet, their bottle looks more like it contains suntan lotion or bubbles. It is bright orange with a playful gorilla. It’s inviting. But most important, it doesn’t say the word “glue”. It is called “Spray Adhesive”. It says it is “multi-purpose”. It says “easy to use”. And the warning at the bottom says “highly flammable”, not “super sticky”. If you really read the small lettering on the back (and let’s face it, nobody does), then you find out that you shouldn’t get it in your eyes or swallow it and that it causes skin irritations. But it never tells the user not to put it in their hair.
A company that sells products to the general public needs to put warning labels that both the smartest and dumbest person in the world could follow. Not everyone in the world knows what this product does. Just because it is sold at places like Home Depot, doesn’t mean the user was the purchaser. Keep in mind that a child could get access to this product, so they need to scream to adults: “hey this is super dangerous – put it somewhere that your kids can’t access it”. Yet, Gorilla Glue buried this in the fine print.
To emphasize this point, financial papers say that Gorilla Glue sells between $200-400 million dollars in product each year and employs over 500 people. Is anyone going to believe that a company this size doesn’t have an in-house lawyer, and an outside legal team (probably one of the world’s largest corporate law firms) reviewing their labeling and telling them what warnings to place to insulate them. Somebody in corporate, or engineering, or legal, probably made a big mistake calling this an adhesive and limiting the warnings.
So, at the end of the day, their failure as a company has led to this woman gluing her hair. Gorilla Glue is getting bad press every day. Everybody is talking about Tessica around the water cooler (although waters coolers are now virtual). The powers that be at Gorilla Glue will need to weigh the defense costs, expert costs and attorney costs to defend this matter. More important, they will need to weigh the costs of continued bad press, and settle this case . . . and they might need to overpay. Because last I read, Tessica was being flown out to Los Angeles to have a world class plastic surgeon help her. I wouldn’t be surprised, in these times, if I turn on the TV next year and she has her own talk show. For Gorilla Glue, this isn’t going away too soon.
This line of products liability cases is called “failure to warn” and it includes “failure to adequately warn”. That is my theory as a lawyer and yes, I have to prove my case and show that a better label design could be developed and the harm could have been ameliorated. I think I can prove my case. But I think this will settle very quickly and I won’t have to.
So, yeah, I’d pursue this case . . . but that’s just one lawyer’s opinion.