Justices struggle with ‘awkward’ Georgia law in hair relaxer cases

A ruling by the justices in Burroughs’ case is likely to set a precedent for all product liability cases in Georgia with respect to the state’s 10-year time limit, known in legal terms as a statute of repose.

“The way the statute is drafted is awkward to say the least in trying to capture the idea of cumulative exposure of a commercial product,” Justice Sarah Hawkins Warren said Tuesday. “We don’t have (prior) cases that so clearly deal with cumulative exposure.”

Credit: Miguel Martinez

Credit: Miguel Martinez

The justices must interpret the statute’s language of “first sale for use or consumption of the personal property causing or otherwise bringing about the injury.”

Darren Summerville, an attorney for Burroughs, said the Court of Appeals ruling means plaintiffs like Burroughs can only succeed if they file a lawsuit within 10 years of first using a product, even if that is before they know they’re injured or have any information about the product’s toxicity.

“We think the Court of Appeals got that wrong because the statute of repose follows the product, not the purchaser,” Summerville said Tuesday. “Every time there’s a new sale as new to a consumer of a particular unit or a particular type of product, that triggers that unit’s statute of repose.”

Burroughs alleges she was 6 when she started chemically straightening her hair in 1995 and that she filed her complaint when she first learned in 2022 about hair relaxers’ link to increased rates of tumors and other health problems. She alleges she stopped chemically straightening her hair in 2014 when she was 25, then was diagnosed four years later with uterine fibroids.

Hawkins Warren said under Burroughs’ theory of timing, there is no end to the period in which a manufacturer can be liable for their product.

“If last (use of a product) is always the first, it never closes” she said.

Justice Verda Colvin suggested Burroughs’ case is more convincing if she alleges her injury started from her first use of hair relaxers, though the injury wasn’t evident until later. She suggested Burroughs’ argument about the statute of repose may “swallow the rule” on timing.

“If we accept what you’re saying, then it seems like to me we’re in some ways rewriting the actual statute,” Colvin said to Summerville.

Credit: Arvin Temkar/AJC

Credit: Arvin Temkar/AJC

Justice Andrew Pinson probed Burroughs’ theory that she can allege her injury is from cumulative use of hair relaxer products over time while also tying liability to each unit of product she bought and used.

“No single unit did anything to cause the injury,” Pinson said, summarizing Burroughs’ claims. “And so how do you get to the idea that the personal property causing or bringing about the injury is just some unit within the statute of repose, rather than the whole set of units?”

Justices also highlighted issues with manufacturers’ interpretation of the law.

Justice Charles Bethel questioned the companies’ argument that the first sale of a product triggers liability tied to any subsequent sale of the product.

“The way the Court of Appeals suggests, if I sell you something today and then I sell you something tomorrow, the statute of repose actually is nine years and 364 days for the thing I sell you tomorrow,” Bethel said. “But I didn’t sell you those things today, I sold you to them at some point later.”

Bethel said under the companies’ argument, a manufacturer could have no liability for products it repeatedly sells to long-term customers, while being liable for products sold to new customers. He said Burroughs’ contrasting theory seems more consistent with how business is done.

Credit: Arvin Temkar/AJC

Credit: Arvin Temkar/AJC

“To me, the personal product is the actual thing that is sold, not a previous iteration of that,” Bethel said. “You have insurance for liability for what you’ve actually sold off the shelves, not future sales.”

More than 500 injury cases have been filed in Georgia in recent months against the makers of hair relaxers. Most of the lawsuits are in DeKalb and Chatham counties, where some of the defendant companies are based.

Other Georgians are among the more than 9,000 plaintiffs whose cases against hair relaxer manufacturers have been consolidated in a federal court in Illinois.

Dennis Ellis, an attorney for L’Oreal, said Georgia’s time limit on product liability claims is clear.

“It may be unyielding and it may be absolute but this (court) is a body that interprets statutes and this one is not ambiguous,” he told the justices Tuesday. “The legislature was trying to minimize and put boundaries on liability in the insurance context for product liability. It decided that 10 years was long enough.”

John Elwood, an attorney for Strength of Nature, said Burroughs’ theory on timing turns the state’s 10-year limit upside down.

“An ordinary speaker of language would say, ‘That’s not a first-sale rule but a last-sale rule,’” he said Tuesday.

The companies are supported in Burroughs’ case by the Georgia and U.S. chambers of commerce as well as Avlon Industries, which filed briefs urging the justices to uphold the lower court’s ruling.

Avlon said it is fighting more than 100 cases in Georgia alleging injury from its hair relaxer products.

The chambers said manufacturers need stability and predictability in injury litigation in order to obtain necessary liability insurance. They said manufacturers are not supposed to be the underwriters of their products in perpetuity.

Credit: Arvin Temkar/AJC

Credit: Arvin Temkar/AJC

The justices indicated Tuesday there may be a way for cases like Burroughs’ to survive a defendant’s earliest dismissal bid, depending on how the allegations are framed.

“Our pleading standard in Georgia is quite liberal and it allows you to get past the motion to dismiss, really if there’s any set of facts that could be proven that would entitle the plaintiff to relief,” Pinson said.

It is not clear when the justices will issue their decision.