Kost v. Avon Products Inc.
Expert testimony can be required to establish a prima facie case under the Connecticut Product Liability Act, if the alleged product defect is not clearly within the knowledge of an ordinary consumer. Allegedly, the plaintiff, Kathleen Kost, purchased Avon skin cream products, "Anew Ultimate Contouring Eye System" and "Anew Ultimate Age Repair Elixir," and a skin irritation developed. The skin irritation persisted, and Kost consulted dermatologists. Eventually, within a year, Kost's skin improved. Kost sued Avon Products, alleging that the skin cream was defective and unreasonably dangerous, and any warnings provided were inadequate, in violation of the Connecticut Product Liability Act, Connecticut General Statutes §52-572m. Kost's complaint alleged that her skin suffered from acne, redness, cysts, the appearance of Milia and scarring, and she suffered emotional distress. The defendant moved for summary judgment, arguing that expert testimony is required to establish product defect and causation. To prevail, the plaintiff must prove: 1.) the defendant was in the business of selling the subject product; 2.) the product was defective; 3.) the product defect caused the plaintiff's injury; 4.) the product defect existed at the time of sale; and 5.) the product was expected to and reached the consumer without substantial change. Connecticut state courts have permitted plaintiffs to establish product defects without expert testimony only if a product defectsuch as an airbag that does not deploy during a collisionis clearly within the knowledge of the ordinary consumer. The issue of whether a skin cream is unreasonably dangerous is beyond the ordinary knowledge of judges and jurors. The plaintiff failed to produce evidence that the skin cream was unreasonably dangerous to an ordinary consumer, as opposed to the plaintiff. A claim that requires knowledge about the chemical composition of a skin cream is not clearly within the knowledge of the judge and jurors. "Because expert testimony is necessary to establish the essential element of product defect in this case," wrote the court, "and because Plaintiff has failed to disclose an expert, she is unable to establish a claim under the CPLA." The court granted the defendant's motion for summary judgment.