Mckenzie v. Scar Away/Perrigo

Background

Kellyann McKenzie, representing herself, sued Perrigo based on her use of ScarAway silicone scar sheets. She alleges that she purchased the product in July 2019 to improve the appearance of a facial scar. After using it, she experienced facial swelling and consulted a dermatologist, who advised her that she may have had an allergic reaction and a chemical burn. McKenzie also alleges permanent nerve damage on the right side of her face and a reduced sense of smell.

Perrigo removed the case from New York state court to the federal court. With the court’s permission, McKenzie filed a Second Amended Complaint, which was the operative pleading—the complaint governing the case at this stage.

Perrigo’s Motion

Perrigo moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that McKenzie had not alleged enough facts to put Perrigo on notice of her claims. A Rule 12(b)(6) motion tests whether a complaint states a legally sufficient claim, assuming well-pleaded factual allegations are true for purposes of the motion.

Court’s Analysis

Under New York law, a product may be defective because of a manufacturing defect, a failure to warn, or a design defect. Because McKenzie was representing herself, the court was required to read her complaint liberally and interpret it to present the strongest claims reasonably suggested by her allegations. The court treated her allegations that Perrigo produced a “faulty” or “defective” product that caused her injuries as asserting a manufacturing-defect claim.

To plead a manufacturing-defect claim under strict liability or negligence, a plaintiff must allege that the product was defective because of an error in the manufacturing process and that the defect proximately caused the injury. The court explained that, at the pleading stage, a plaintiff does not have to identify specific details about the manufacturing process.

The court concluded that McKenzie had sufficiently alleged a manufacturing defect based on the circumstances of her use of ScarAway and the facial injuries she says followed. The court also found it sufficient, at this stage, for her to allege that she used ScarAway on her face and suffered facial injuries as a result of the product’s defective manufacture. The court noted that medical opinion evidence may be needed later because the cause of these injuries is not necessarily within ordinary knowledge, but it did not require that evidence to be presented at the motion-to-dismiss stage.

Disposition

The court denied Perrigo’s motion to dismiss. Perrigo must file an answer to the Second Amended Complaint within 14 days. The ruling allows McKenzie’s manufacturing-defect claim to proceed; it does not determine whether Perrigo is ultimately liable or whether McKenzie will prevail.