Glued hair precipitates lawsuit talk, problem of liability exposure when products are misused

Trevor Noah and Dulcé Sloan had some fun on The Daily Show this week with TikToker Tessica Brown, who is considering suit against Gorilla Glue after using it on her hair sent her to the hospital.

I have some Gorilla Glue right on my desk.  I love the stuff, except how it hardens in the bottle before I can use it all, an apparently intractable malady of super glues.  I got out my reading glasses, and the tiny print on mine says:

WARNING: BONDS SKIN INSTANTLY.  EYE AND SKIN IRRITANT.  MAY PRODUCE ALLERGIC REACTION BY SKIN CONTACT.  Do not swallow.  Do not get in eyes.  Do not get on skin or clothing.  Do not breathe in fumes.  KEEP OUT OF REACH OF CHILDREN.  Wear safety glasses and chemical resistant gloves.  Contains ethyl cyanoacrylate.  FIRST AID TREATMENT: If swallowed, call a Poison Control Center or doctor immediately.  Eyelid bonding: see a doctor.  Skin binding: soak skin in water and call a Poison Control Center.  Do not force apart. For medical emergencies only, call 800-....

 Image by RJ Peltz-Steele CC BY-SA 4.0
with no claim to underlying content

No mention of hair, so I guess the warning label will have to be longer now.  The hair incident prompted a Twitter response from Gorilla Glue, lamenting the misuse and wishing Brown well.

Whether and when to acknowledge an unapproved use of a product always has been an intriguing problem in the practice of product liability defense.  Foreseeability is a key part of the product liability test in many states, so a maker with actual knowledge of an off-label use is sometimes wrangled into having to warn against the absurd.  That leads to some funny results, as evidenced by the label collection that my friend Prof. Andrew McClurg has maintained since before the internet was a thing, now a feature on his legal humor website.

In the analog days, a sharply worded letter might have been an adequate response to the customer who wrote in with helpful intention to suggest how effective oven cleaner might be for mole removal.  Woe be to the product maker whose goods turned up in a book such as Uncommon Uses for Common Household Products, which taught people how to MacGyver products to exceed their design intentions.  (And there's a small but fascinating sub-genre of publisher-defense cases at the intersection of product liability and First Amendment law.)  At that point, it was time to update the warning label, if not issue an affirmative press release, because it would no longer be plausible to argue lack of foreseeability to a jury.  The anticipatory defense would have to shift focus to other theories, such as unavoidable dangerousness and consumer responsibility.

The democratization of mass communication through the internet and social media has accelerated the timeline.  So now we see quick responses to individual incidents, such as Gorilla Glue's on Twitter.

The instant case is not firmly in the genre of unintended uses, because Brown intended at least to use the glue for its adhesive property.  Still, I'll go out on a reasonably secure limb and say that any lawsuit arising from the instant incident, at least upon the facts as reported so far, would be frivolous.  More likely, the TikToker in question has accomplished her mission by being the talk of the electronic town.

UPDATE, Feb. 13, 2021: Princess Weekes at The Mary Sue cautions us not to be manipulated by defense tort reformers into too readily siding against Brown, like in the Hot Coffee case.  I don't think I've been so co-opted, but such an admonition is always well advised.