1

HELENE CURTIS INDUSTRIES, INC. and Cosmair, Inc., Appellants, v.

Edd PRUITT and Marjorie Ann Pruitt, Appellees. No. 22567.

United States Court of Appeals Fifth Circuit. Oct. 20, 1967.

Rehearing Denied Jan. 2, 1968.

84

Elmer H. Parish, Wichita Falls, Tex., W. Page Keeton, Austin, Tex., H. Dustin Fillmore, Fillmore & Fillmore, Wichita Falls, Tex., for appellants.

Jimmy Castledine, Wichita Falls, Tex., for appellees.

Before RIVES, THORNBERRY and AINSWORTH, Circuit Judges.

THORNBERRY, Circuit Judge: This appeal is from a judgment of the United States District Court for the Northern District of Texas in favor of Appellee for personal injuries sustained while using a mixture of Appellants' cosmetics.

Appellee, Marjorie Ann Pruitt, sustained third-degree chemical burns on her scalp and right ear resulting from the application to her hair of a mixture of two products designed for bleaching purposes'"Helene Curtis New Blue Bleach," manufactured by Appellant Helene Curtis, and "L'Oreal Greme Developer," manufactured by Cosmair. The products were purchased from a beauty parlor in Terrell, Oklahoma, by a friend, Mrs. Hendren, who applied them to Mrs. Pruitt's hair at Mrs. Hendren's home in Terrell.

In response to special issues, the jury found that the Blue Bleach and Cosmair mixture "contained ingredients that were not suitable and reasonably fit for the purpose for which said products were used when used in combination with the other," and that such ingredients were a proximate cause of the injury. Both products were found to have contained corrosive substances" (defined as "any ubstance which in contact with living issue will cause destruction of tissue with chemical action") which were a proximate cause of the injury. Mrs. Pruitt was found to have followed the directions which accompanied the products and was found not to have been negligent in mixing or applying them. A verdict was returned in favor of Appellee in the amount of $64,500.00.

Appellants allege several grounds of error: (1) That the trial judge erred in not granting the motion for a directed verdict or motion for judgment notwithstanding the verdict since the evidence was insufficient as a matter of law to establish a defect in the mixture; (2) that the trial judge erred in not granting a directed verdict or judgment notwithstanding the verdict since as a matter of law Mrs. Pruitt was without the class of persons who could invoke the doctrine of strict liability against Appellants; (3) that the trial judge erred in submitting the special issues on corrosiveness; and (4) that the verdict was excessive. We agree with Appellants that as a matter of law the jury could not have rationally inferred that

the mixture was defective for its intended use. Alternatively, we hold that Appellee was without the scope of the duty which the doctrine of strict liability has imposed on Appellants. Only these two points will be discussed.^{Footnote 1}

I. The Applicable Law

The mandate of Erie R.R. Co. v. Tompkins, 1938,  304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, once again plunges this Court into the vexing and revolutionary field of products liability. The multi-state nature of the transaction necessitates a choice-of-law analysis. It is well settled that a federal court uses the substantive law of the state in which it sits and that under Klaxon Co. v. Stentor Electric Mfg. Co., 1941,  313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477, substantive law includes the conflict-of-law rules. Although most courts in tort problems are moving away from the vested rights and territorial approach, Texas still follows the traditional lex loci delictus rule. Marmon v. Mustang Aviation, Inc., 416 S.W.2d 58 (Tex.Civ. App.'Austin 1967, no writ). Here no injustice results from the application of this rule because there is no real conflict. George v. Douglas Aircraft, 2d Cir. 1964,  332 F.2d 73, 76; Comment, 78 Harv.L.Rev. 1452 (1965). Both Texas and Oklahoma recently extended the scope of strict liability to encompass all products that are unreasonably dangerous. The Texas Supreme Court, relying on the Restatement of Torts § 402A, adopted the tort theory of strict liability. Shamrock Fuel & Oil Sales Company, Inc. v. Tunks, 416 S.W.2d 779 (Tex. 1967); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967), noted in 45 Texas L.Rev. 790 (1967). The basis for the Oklahoma decision, Marathon Battery Co. v. Kilpatrick,  418 P.2d 900 (Okl.1966), is not clear, but the decisions relied on justify the conclusion that Oklahoma will also adopt the theory of strict liability in tort.

The mere adoption of strict liability for all products, however, does little to facilitate a solution to the issues posed by this appeal. These issues are the nature and quantum of proof necessary to establish liability; a proper understanding of the concept of a defective product; and the scope of the maker's duty to the consumer. Thus, as in Putnam v. Erie City Manufacturing Company, 5th Cir. 1964,  338 F.2d 911, 917, we must consider "all the available data," including the restatements of law, treatises, law review commentary, and the majority rule.

8

Hopefully, our "Erie prediction" will be indicative of what Oklahoma will do in the future and will not be easily erased. Ford Motor Company v. Mathis, 5th Cir. 1964,  322 F.2d 267, 3 A.L.R.3d 1002.

II. Policy Considerations

Initially, we review the policy considerations behind strict liability. With the technological revolution and modern marketing practices of this Century, Americans now enjoy the conveniences of many modern and beneficial products. These benefits to the many, however, have come at a high cost to a few. To combat the serious injuries

HELENE CURTIS INDUSTRIES, INC. v. visited on this minority, the law has reexamined its traditional reasons for imposing liability. This "rethinking" has caused many courts to abandon the traditional negligence analysis and impose liability without fault on the maker who puts the product into the stream of commerce.^{Footnote 3} The justification for rejecting privity is based on the realization that our technological society, with its proliferation of products and mass advertising, demands judicial protection of the consumer who has neither the capacity nor opportunity to discover latent dangers in products. Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960); Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791 (1966). Several reasons have been advanced to justify this judicial pioneering: The maker impliedly represents that his product is fit for its intended use; consumer expectations are frustrated by harmful products; strict liability will make manufacturers more careful; and manufacturers are superior risk-bearers because they have the capacity to distribute the losses of the few to the many by the price mechanism. Wade, Strict Tort Liability of Manufacturers, 19 Sw.L.J. 5 (1965). Thus the risk of personal injury has become a cost of doing business. The more recent decisions have adopted a tort rather than a warranty approach, reasoning that recovery should not depend on the complex law of sales. E.g., Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal. Rptr,. 896, 391 P.2d 168 (1964); McKisson v. Sales Affiliates, Inc., 416 S.W. 2d 787 (Tex.1967). These decisions find the tort theory more appropriate because liability is imposed by law and because the maker should not be permitted to define the scope of its responsibility for defective products. PRUITT

Comment, Products Liability'Proceeding Apace, 33 Tenn.L.Rev. 341 (1966).

The particular market involved in this case is the cosmetics industry. In no other way can one glean a better conception of our "consumer perspective" than by considering the advertisements which constantly encourage women to beautify themselves. See 3 Frumer & Friedman, Products Liability § 2901 (1965); Cahn, Law in the Consumer Perspective, 112 U.Pa.L.Rev. 1 (1963). It is therefore understandable that courts have imposed strict liability on the cosmetics manufacturer who has bombarded the consumer with his impersonal merchandising techniques. Cowan, Some Policy Basis of Products Liability, 17 Stan.L.Rev. 1077 (1965). The mere imposition of strict liability on cosmetics makers dees not, however, as the trial court's charge assumed, mean that the maker is liable for any harm to anybody under any circumstances. In fact, the ambit of responsibility is more circumscribed. The maker is not an absolute insurer who is responsible for all physical hurts occurring in the course of using the product. Traynor, The Ways and Meaning of Defective Products and Strict Liability, 32 Tenn.L.Rev. 363 (1965); Freedman, "Defect" in the Product: The Necessary Basis for Products Liability, in Tort and in Warranty, 33 Tenn. L.Rev. 323 (1966). The question facing courts today is what doctrine will replace fault as a means of delimiting liability. The chief limitation (which was accepted by the Oklahoma Supreme Court in Marathon) is the requirement that the product be defective for its intended use. The Restatement of Torts § 402A provides a lucid definition: "One who sells any product in a defective condition unreasonably dangerous to the user or consumer * * * is subject to liabil-

ity for physical harm thereby caused to the ultimate user or consumer."

Demanding that the defect render the product unreasonably dangerous reflects a realization that many products, such as cosmetics, have both utility and danger. James, Products Liability, Texas L.Rev. 114 (1955). Since, in the instant case, there was no evidence of any miscarriage in the production and no foreign substance was found in either product, we are confronted with what has been termed a design problem: The product was exactly as intended and yet harm still occurred. See Wade, supra.* For the design to be unreasonably dangerous, it must be so dangerous that a reasonable man would not sell the product if he knew the risks involved. Id. at 10. This definition demonstrates that the only change from the traditional negligence analysis is that the maker cannot be excusably ignorant of the defect; however, courts must still weigh the utility of the product against the risk of harm created. Id. at 16. The trial court's submission of strict liability ignores these principles.

III. Federal Test for the Sufficiency of the Evidence

It should be evident from the foregoing definition of a defect that the test for the sufficiency of the evidence is of paramount importance. This Court recently reaffirmed in Planters Manufacturing Co. v. Protection Mutual Insurance Co., 5th Cir. 1967,  380 F.2d 869, the principle that although state law governs the elements of a cause of action, the sufficiency of the evidence is a matter of federal law. ^{Footnote 5}

This doctrine has been formulated to protect the seventh-amendment right to a jury trial by demanding uniformity in the exercise of the power of the trial judge to grant directed verdicts. 2B Barron & Holtzoff, Federal Practice and Procedure § 871.1 at 18 (Wright ed. 1961). Accordingly, since the federal policy favors jury trials, we must approach Appellants' complaint that the trial judge erred in not granting these motions with the realization that they should be granted sparingly. Id. at 375. ^{Footnote 6}

The test employed by the Fifth Circuit is that a fact issue must be submitted to the jury if reasonable men could differ on the conclusions to be reached from the evidence presented. Isaacs v. American Petrofina, 5th Cir., 1966,  368 F.2d 193; Wells v. Warren, 5th Cir. 1964, 328 F.2d 666. We must view the evidence and all reasonable inferences most favorably to the party against whom the motion is made. Moreover, only the evidence and the reasonable inferences which support Appellee's theory may be considered. Wilkerson v. McCarthy, 1949,  336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Berry v. United States, 1941, 312 U..S 450, 61 S.Ct. 637, 85 L.Ed. 945. Indeed after Planters our sole function is to ascertain if there is a rational basis in the record for the jury's verdict. The Plant-

HELENE CURTIS INDUSTRIES, INC. v. ers decision, however, provides no explicit help in determining which inferences are rational. The polar ends of this problem may be stated as follows: Planters holds that an inference may be reasonable though based partly on conjecture;' it is not, however, unconstitutional to direct a verdict for the defendant, Galloway v. United States, 1943,  319 U.S. 372, 63 S. Ct. 1077, 87 L.Ed. 1458, and it seems well settled that an inference is unreasonable if it is at war with uncontradicted or unimpeached facts. See Parker v. Wideman, 5th Cir., 1967,  380 F.2d 433; 2B Barron and Holtzoff, supra, at 390. The proper blending of these two polar positions can only be accomplished by understanding that the basic question is one of policy: How far is the court willing to let the jury speculate? Comment, Directed Verdicts and the Right to Trial by Jury in Federal Courts, 42 Texas L.Rev. 1053, 1063 (1964).

In deciding how much the jury can speculate it is well settled that an appellate court cannot weigh the evidence or the credibility of the witnesses. Wells v. Warren, supra. The line of demarcation which we are required to walk is ephemeral: We must conclude that an inference is unreasonable without falling into the trap of weighing all the evidence and deciding that while the jury's inference is reasonable, the evidence shows that another inference is just as reasonable, if not more so. 2B Barron & Holtzoff, supra at 392. It is only to that limited extent that all the evidence is considered. PRUITT

IV, Proof Required for Recovery Under Strict Liability The doctrine of strict liability only removes the requirement of privity of contract; it does not prove Appellee's case. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791, 840 (1966). Since there was no direct evidence of an identifiable defect, we must decide the meaning of a rational inference in a products liability case which rests entirely on circumstantial evidence. The breach of duty which the jury would have had to infer was that the New Blue Bleach and L'Oreal were unreasonably dangerous for their intended use. As stated, in order to justify that finding the jury must have concluded that the products were so dangerous that a prudent maker would never have marketed the products had he known of their condition. Such a conclusion would be reasonable only if the jury could have concluded that the mixture was defective ; that the products were intended to be mixed; that the application by Mrs. Hendren comported with professional standards; and, finally, that Appellee's scalp was not hypersensitive. We have not considered the issue urged by Mrs. Pruitt that she was inadequately warned of danger. The jury found that the warnings to Appellee for use were inadequate, but that this failure was not the proximate cause of the injuries. Since Appellee failed to move for a directed verdict in the trial court, she cannot now challenge the sufficiency of the evidence. See 2B Barron & Holtzoff, supra at 424.

A. Appellee's proof about the mixture.

First, we consider the proof offered by Appellee on the dangerous qualities of the mixture. Appellee elicited testimony that the directions accompanying the Helene Curtis bleach were followed. ^{Footnote 8}

HELENE CURTIS INDUSTRIES, INC. v.

Most important is the fact that Mrs. Hendren checked Appellee's scalp and found no cuts, .eruptions, abrasions, or other abnormal conditions which rendered the hair unsuited for bleaching; that the hair had not been shampooed, brushed or massaged in the twenty-four hours prior to treatment; that a preliminary strand test showed no harmful effects to the hair by the mixture; and that the proper proportions of the products were used. Appellee also had evidence about the nature of the bleaching process. It was shown that the mixture of the two products produced a liberation of oxygen from the hydrogen peroxide. This process burned the hair pigment until it was colorless. It also had the potential for causing harm if the mixture was too toxic or left on the hair too long. Mr. Anderson, an analytical chemist, testified about the chemical qualities of the mixture. He had conducted experiments on the products to ascertain the active ingredients. ^{Footnote 9}

He admitted that there was a chemical burn, but he was unable to say what caused the burn. He did testify that the mixture would have had to be much stronger than the ones he tested to cause Appellee's burn. His conclusions were based on the fact that the concentration of the peroxide, which he thought was the dangerous ingredient, was normal. Finally, he stated that he did not think a bobby pin or cut on the head could have increased the activity of the products enough to cause this burn.

Appellee also obtained the statement from Mr. Dieter, a cosmetic chemist for Helene, that in order to produce such a burn the products either had to be defective or the directions not followed. Dr. Majors, Appellee's personal physician, testified that in his opinion the burn happened suddenly. By this statement he meant about fifteen minutes. It was PRUITT shown that the solution was on Mrs. Pruitt's head about fifteen to twenty minutes before the burning started. Dr. Majors also testified that he did not believe a cut could produce this burn. His subsequent testimony is the most interesting. He stated that he thought one of two things happened: There was either some mislabeling of one of the bottles so that the solution or the powder was not what was usually in the products, or the directions were not followed properly. He concluded that it was his opinion that this "chemical burn was produced by the application of the bleaching substance she told me she used on her scalp."

On the basis of this testimony, Appellee asserts that the defect in the mixture speaks for iteslf. Although the trend has certainly been to allow more and more circumstantial evidence to serve as the basis for liability, we believe that in this instance a finding of a defect was unwarranted. The evidence about the character of the mixture and its propensities for harm does not suggest a defect. The cornerstone rule in products liability is that proof of mere injury furnishes no rational basis for inferring that the product was defective for its intended use.¹*

Appellee has attempted to skirt that principle by invoking the doctrine of res ipsa loquitur. Certainly this doctrine has produced the most situations in which the jury has been allowed to infer negligence from an unexplained accident. Several elements must be present before the doctrine is applicable: The accident must be one which would not ordinarily occur without the presence of negligence; the plaintiff must show that the product was properly handled after it left the maker's possession; and, finally, plaintiff must prove that the product has not been substantially altered after leaving the mak-

er's control. ^{Footnote 11}

Generally, the plaintiff is required to exclude these other causes by a preponderance of the evidence. Dement v. Olin-Mathieson Chemical Corp., 5th Cir. 1960,  272 F.2d 76; Ozark v. Wichita Manor, Inc., 5th Cir. 1958,  252 F.2d 671. This preponderance-of-the-evidence test was employed because the courts looked to state law for the applicability of the doctrine. Since this state rule conflicts with the federal test, this Court will no longer rely solely on state law to determine the applicability of res ipsa loquitur. See 2B Ban-on & Holtzoff, supra, at 18. All that is in issue is the sufficiency of the evidence to infer a defect in a product. ^{Footnote 13}

The factors considered in deciding whether the doctrine applies are still relevant; the only thing that has changed is the quantum of proof necessary to negate the other explanations of the injury. 13

We agree with Appellants' assertion that when circumstantial evidence is the only proof, courts have infrequently inferred negligence (here a defect) simply from the accident and proof of careful conduct by the plaintiff, and then only in instances where the accident is the type which, standing alone, points an accusing finger at the maker. Furthermore, in all these cases the chance of mishandling is improbable. ^{Footnote 14}

It is a matter of common knowledge that cosmetics can never be made completely safe for all users and can cause injuries for many reasons other than a defect in the product. Since injuries can be caused by the toxicity of the chemicals, contact with other products, the method of application, or an allergic condition, the circumstances do not point an accusing finger at the manufacturer. See Ravo v.

Lido, 17 A.D.2d 476, 236 N.Y.S.2d 135 (1962).

In the instant case Appellee has failed to prove that it was the toxicity of the products which caused the injury rather than the other factors just enumerated. The testimony about the burning quality of the products is patently inadequate. This burning quality resulted from the oxidation process which occurred when the bleach and peroxide were mixed. No liability can be based on this burning potentiality since the very process of bleaching hair involves a chemical reaction or oxidation process by which the color in the hair is destroyed. It takes a powerful chemical to accomplish the decolorization. As one court observed, the sale as a bleaching fluid of a product that did not bleach would itself constitute a breach of warranty. Thus

the very ingredient and quality which makes the fluid harmful if improperly used is the ingredient and quality which makes it fit for the purposes for which it was purchased. Landers v. Safeway Stores, Inc., 172 Or. 116, 139 P.2d 788 (1943). When products contain dangerous ingredients which are natural or inherent, courts have usually held that the product is not defective. Zorger v. Hill- she has not presented enough facts to man's, 287 Ill.App. 357, 4 N.E.2d 900 constitute a cause of action in strict (1936). It is only when the manufactur- liability. Cf. Fidelity and Casualty Co. er could not reasonably expect the con- of New York v. Funel, 5th Cir. 1967, sumer to discover the natural substance in the final product that liability has resulted. Bennett v. Pilot Products Co., 120 Utah 474, 235 P.2d 525, 26 A.L.R.2d 958 (1951); Betehia v. Cape Cod Corp., 10 Wis.2d 323, 103 N.W.2d 64 (1960). In the instant case we cannot say that Appellee did not know that the bleaching process and its natural ingredients were intended to decolor her hair.

The other proof on the character of the mixture is just as equivocal. See e. g., Rexall Drug Co. v. Nihill, 9th Cir. 1960,  276 F.2d 637; Benavides v. Stop & Shop, Inc., 346 Mass. 154, 190 N. E.2d 894 (1963). The two statements that the products were either defective or misapplied do nothing to exclude each other. Dr. Major's statement that the "application of the bleaching solution" caused the burn is the most interesting. In Zampino v. Colgate-Palmolive Peet Co., 8 A.D.2d 304, 187 N.Y.S.2d 25 (1959), the plaintiff obtained a similar statement from a doctor to show that the aluminum sulfate in Veto deodorant was harmful. The court held that the statement amounted to no evidence of the fact that some ingredient in the product was harmful. Of course the application of the bleaching solution in the instant case caused the injury. The only circumstance in which this statement could conceivably support recovery would be one in which res ipsa loquitur was applicable. the Cosmair bottle said: "For tinting Here, however, it provides no basis for or bleaching, use Oreor exactly as you the inference that it was the nature of the mixture rather than the method of the applier which caused the burn. Hanrahan v. Walgreen Co., 243 N.C. 268, 90 S.E.2d 392 (1955).

Nor do all the statements stand alone. We present the following discussion as additional support for our holding that as a matter of law these products were not in a defective condition which was unreasonably dangerous for their intended use. Appellee's problem is that

 383 F.2d 42. In all the other cases considered, the proof presented by the plaintiff was sufficient to make out a cause of action, despite conflicting evidence. Dick v. New York Life Ins. Co., 1959,  359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.

2d 935; Berry v. United States, 1941,  312 U.S. 450, 61 S.Ct. 637, 85 L.Ed. 945.

Our approach does not weigh the evidence or the credibility of the witnesses; we simply assert that the evidence about the characteristics of the mixture is not sufficient to constitute a cause of action in strict liability.

B. The Intended Use Doctrine: The Illegal Mixture.

In the first place, Mrs. Pruitt has not established a cause of action because she has not shown that the mixture of these products was intended. This fact had to be established because a product is not defective unless injury occurred during an intended use. Lartigue v.

R. J. Reynolds Tobacco Co., 5th Cir. 1963,  317 F.2d 19; Spruille v. Boyle-Midway, Inc., 4th Cir. 1962,  308 F.2d 79. The directions on each package suggest that the mixture was not intended. The "New Blue Bleach" said: "Do not mix Helene Curtis New Blue Bleach with anything except Helene Curti3 Creme Developer (or a good-grade or fresh 20 volume hydrogen peroxide)." It is undisputed that Cosmair peroxide is a cream rather than hydrogen peroxide. The label on would use 20-volume peroxide with Imedia Petite, Imedia Petite Excellence, Imedia Creme, Super Blue Creme Oil Light-

ener." It is undisputed that Helene's product is none of the above.

Mr. Dieter, the cosmetic chemist for Helene, compared the peroxides. He stated that hydrogen peroxide has the viscosity of water while the cream peroxide is similar to hand lotion. The cream peroxide contains additives which thicken the product and also provide some emollients or conditioning actions when used on the hair. He stated further that there was definitely a physical difference between the products, but his company had no way of ascertaining the chemical differences since the formula for the Cosmair product was a trade secret. Because of the uniqueness of cream peroxide, Mr. Dieter stated that Helene recommended that a hydrogen peroxide be used when Helene's own Cream Developer was not used, since there is nothing unique about a hydrogen peroxide. Cosmair's expert agreed that the trade secrets made it impossible to know about the products' compatibility; that the directions were meant to be followed; and that he did not recommend that the products be used together. Appellee has suggested that these directions jjgrve both commercial and safety ends. ^Although they may have a dual nature, the decisions demonstrate that a failure to follow directions cannot support a finding of a defect. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791, 824 (1966). Indeed, instructions accompanying cosmetics are an integral part of tlie, warranty and are to be strictly followed! E. I. DuPont De Nemours & Co. v. B$xldon, 8th Cir. 1934, 73 F.2d 26. This principle is particularly applicable to a bleaching product which has the inherent danger of burning the scalp or hair if misapplied in any way. Furthermore, directions become more important when products are to be mixed. All the relevant decisions presented evince a hesitancy to hold the maker responsible when mixtures are involved. No doubt many of the plaintiffs' problems in these cases stem from the requirement that the other possible causes be negated by a preponderance of the evidence. But aside from the preponderance-of-the-evidence approach, which we have rejected, these decisions reflect the valid policy concern for the potential abuses of jury speculation when mixtures are the cause of injury. What these decisions justifiably demand is that there be a rational basis in the record from which the jury can make a selective choice between the products before the manufacturer can be held responsible for the harm caused by his product or the mixture. See Bathory v. Procter & Gamble Distributing Co., 6th Cir. 1962,  306 F.2d 22; Sheptur v. Procter & Gamble Distributing Co., 6th Cir. 1958,  261 F.2d 221; Harrod et al. v. Edward E. Tower Co., 346 Mass. 532, 194 N.E.2d 392 (1963). This requirement is all the more warranted when the products involved were never meant to be used together. Unlike the case of Ozark v. Wichita Manor, Inc., 5th Cir. 1958,  252 F.2d 671, in which component parts were used to produce a final product, it is clear in the instant case that the products involved were not marketed for that purpose.

Nor can it be said that Appellants should have foreseen the mixture, since the trade secrets of one maker prevented any safety tests on the product of the other. Manufacturers cannot be responsible for a combination which they did not recommend and which they had no way of guarding against at the manufacturing stage. Lartigue v. R. J. Reynolds Tobacco Co., 5th Cir. 1963,  317 F.2d 19. Moreover, the mixing of these products amounted to an abnormal handling or substantial alteration which, because it was uintended and unforeseen, excuses the makers from responsibility for any harm. Noel, Manufacturers Negligence of Design or Directions for Use of a Product, 71 Yale L. J. 816 (1962); Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791 (1966).

C. The Intended Use Doctrine: The Intended User.

Appellee has argued that she did not know the difference between hydrogen and cream peroxide. This

HELENE CURTIS INDUSTRIES, INC. v. argument reveals her second misconception about proof of a defect. Mrs. Pruitt has assumed that this product was made for her use and has argued that the directions were inadequate for the ordinary consumer. The uncontradicted evidence, as subsequently shown, confirms, however, that these products were intended to be used by a professional beautician. Since the decisions indicate that the maker is liable only to those whom it can reasonably expect to use its product, Mrs. Pruitt cannot recover. Merrill v. Beaute Vues Corp., 10th Cir. 1956,  235 F.2d 893; Bronson v. J. L. Hudson Co., 376 Mich. 98, 135 N.W.2d 388 (Mich.1965).

Appellee's counter argument reveals the final fallacy in her position. Mrs. Pruitt asserts that a professional beautician in Terrell had mixed these two products and that the professional beautician who testified had done the same. Before these facts can become important. Appellee must show that Mrs. Hendren's method of application met professional standards. Our requirement that Appellee prove that Mrs. Hendren applied the mixture as a professional is justified by the conclusion that these were not over-the-counter products, nor was Mrs. Pruitt the intended user. Accordingly, evidence which shows that harm was suffered when th; products were used by a layman does not necessarily demonstrate that the products would have been defective if applied by a professional.; Parker v. State, 201 Misc. 416, 105 N.Y.S.2d 735, 741 (1959). This proposition is valid since it is well settled that a product cannot be