April 30, 2010
Botched hair treatment costs salon $500,000
By ANDREW BERGH
Special to the Journal

Not all hair weaves are alike.

Just ask Marie Duvivier, who paid $120 for a botched “quick weave” that she didn't even want. But the hair salon ultimately paid a much steeper price, as a Massachusetts appeals court recently affirmed a $500,000 verdict for its customer.

Duvivier lives about 20 miles south of Boston in Brockton, Mass. To prepare for an upcoming business trip to Florida, she traveled to Beantown for a hair appointment at Kay's Hair Salon that was arranged by her daughter. Duvivier, then nearing 60 and with thinning hair, intended to have a “sewn weave,” which thickens the customer's hair by sewing additional natural hair through it with a needle.

Duvivier's daughter had scheduled the appointment at Kay's with an experienced stylist named Sonia, who had performed many sewn weaves in the past. But when she arrived on the appointed day in late October 2004, Duvivier was told Sonia had already left and that she would instead see Nicky.

Nicky had other plans, however, as she proceeded to do a “quick weave,” which is a totally different procedure involving the use of glue.

When Duvivier asked why she was using glue, Nicky replied that she knew what she was doing and continued the procedure. But Nicky, sorry to say, didn't know what she was doing, as she neglected to put a stocking cap over Duvivier's head to protect it from the glue. (When done correctly, a quick weave is essentially a custom-made wig, as the customer's scalp is covered by the cap and glued-on hair extensions.)

In Florida two days later, Duvivier developed a “painful burning sensation” in her scalp. When she sought advice a few days later, a Florida hairdresser told her to return to the salon where she'd been treated and get the glue removed. But after Duvivier abandoned her trip on account of the scalp pain and tried to do exactly that, the staff at Kay's offered no help.

About one month after the weave, Duvivier sought treatment at a medical clinic and was given pain medication. At the next visit four days later, her head was shaved so the stocking cap pieces still glued to her scalp could be removed. Fortunately, her painful scalp pain also went away.

Duvivier later sued Kay's for damages for her emotional distress. When the case went to trial in early 2009, her hair still hadn't grown back to its preweave condition, and she had “continuing baldness” where the stocking cap pieces had been removed.

Liability was uncontested at trial, as Kay's conceded that Nicky wasn't properly trained to do hair weaves in 2004, and that she should've placed a stocking cap over Duvivier's head at the outset of the treatment to prevent glue from reaching her scalp.

On the issue of damages, Duvivier used photographs to depict both her preweave appearance and her condition following the treatment at the medical clinic. She testified that she always wore a wig whenever she left her house, and that she had so far spent $3,000 on wigs. Plus, she displayed her head to the jury without a wig. What Duvivier admittedly didn't present, however, was any medical testimony that her ongoing baldness was caused by the quick weave, or that her condition was permanent.

In its defense, Kay's tried to argue that Duvivier's hair was thin to begin with, that her baldness was somehow related to her preexisting diabetes condition, and that maybe even the Florida hairdresser was somehow at fault. In short, nothing even remotely persuasive, as a Plymouth County jury awarded Duvivier exactly $500,000 for her emotional distress. (Though I can't describe them for want of space, it looks like some of the trial tactics by Kay's defense counsel also may have contributed to the size of the verdict.)

In the ensuing appeal, the salon raised numerous arguments as to why the award should be overturned. Its main claim? That the $500,000 verdict should be tossed out because Duvivier presented no medical evidence regarding the cause or permanency of her baldness.

But Kay's struck out on both fronts.

Given the circumstances of the injury, said the appeals court, it was “not speculative” for a jury to infer that the quick weave caused the baldness. A finding of permanency was also “proper,” said the court, because at the time of trial, the condition of Duvivier's hair and head had remained the same for four years.

The appeals court likewise rejected the rest of Kay's claims, including its assertion that a new trial should've been granted because the damages award was excessive. Though “somewhat startling,” said the court, the amount wasn't so “disproportionately high” that the verdict should be set aside.

In short, Duvivier should soon receive half a million bucks from the salon. While that unfortunately won't restore her hair, it should definitely cover her wig budget for a long while.