United States District Court, D. Alaska
For Lisa Blake, individually and on behalf of her minor children, Plaintiff: Frank J. Schlehofer, Schlehofer Law Offices, P.C., Anchorage, AK; Michael Cohn, Phillip Paul Weidner & Associates, Anchorage, AK; Phillip Paul Weidner, Weidner & Associates, Anchorage, AK.
For Guthy-Renker, LLC, Guthy-Renker Partners, Inc., Defendants: Timothy M. Lynch, Lynch & Associates, Anchorage, AK.
ORDER RE MOTION FOR SUMMARY JUDGMENT
Sharon L. Gleason, UNITED STATES DISTRICT JUDGE.
Before the Court is a Motion for Summary Judgment filed by Defendants Guthy-Renker, LLC and Guthy-Renker Partners, Inc. (collectively " Guthy-Renker" ) on May 10, 2013. Plaintiff Lisa Blake opposed the motion on June 11, 2013, and Defendants replied on July 10, 2013. Neither party requested oral argument and this Court has determined that it was not necessary to resolve the motion. For the reasons set forth below, the motion will be granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
The facts, viewed in the light most favorable to Ms. Blake for purposes of this motion, are as follows: Guthy-Renker advertises, sells and distributes a product called Sheer Cover Nourishing Moisturizer SPF 15 (" Moisturizer" ). The Moisturizer appears to be intended for facial use. Guthy-Renker contracts with Corwood Laboratories to manufacture the product. On May 5-6, 2009, Guthy-Renker conducted its annual audit of Corwood Laboratories. Keith Nelson, Guthy-Renker's Quality Assurance Director, issued an executive summary of this audit on June 9, 2009. The audit found that microbiological testing results indicated high bacteria counts for certain Moisturizer batches. Further testing indicated that the batches contained pseudomonas putida and staphylococcus xylosus.
On May 5, 2009, Ms. Blake purchased through the mail a bottle of the Moisturizer from Guthy-Renker after seeing an infomercial about the Sheer Cover product line. She received the product on May 11, 2009. The product came with a letter, which stated " [y]ou're about to discover the secret to flawless-looking skin" and " you can simply brush imperfections away
in seconds."  The letter also stated that the " Sheer Cover is very different from other makeup you've tried," " [y]ou can experiment with coverage," and " [y]ou'll see how easy it is to have a natural, flawless look."  Ms. Blake began applying the product to her face.
In a letter dated August 27, 2009, Guthy-Renker informed its Moisturizer customers that some of the bottles of the Moisturizer " may have been contaminated with a very low level of common bacteria."  The mailing contained a toll-free telephone number for recipients to call and included a replacement bottle of the product. Ms. Blake received the letter in early September 2009.
Ms. Blake asserts that the Moisturizer has caused injuries to her face, infection, disfigurement, psychological distress, and impacted her employment. Ms. Blake supports her contention that the Moisturizer caused these problems with the testimony of Dr. Gary Richwald, who concluded that " [t]he likely source of Lisa Blake's initial facial infection was Guthy-Renker's Sheer Cover Nourishing Moisturizer Cream SPF 15" and " [t]his product was also the likely source of recurring infections up to the time Lisa Blake stopped using this product in September 2009."  Dr. Richwald also concluded that:
This approximately four-month time period from when Guthy-Renker was first notified of having distributed a contaminated cosmetic product to the time Guthy-Renker noti[fied] customers who had received this product, represents an unreasonable and dangerous delay from a health and safety perspective.
Dr. Richwald asserts that " [t]his delay was further extended by Guthy-Renker withholding the names of the specific bacteria involved in the contamination until Ms. Blake called . . . and demanded to know which bacteria were involved."  Dr. Richwald concluded that " [a]s a result of the delay in discovering the source of her recurrent skin infections, Lisa Blake's doctors were unable to properly diagnose her skin problems." 
Guthy-Renker vigorously disputes Ms. Blake's version of the facts, and instead contends that Ms. Blake's skin infection resulted from her pre-existing conditions including hypertrichosis, excessive hair growth with sores and scarring resulting from chronic picking or hair-plucking. Guthy-Renker references several incidents in Ms. Blake's medical history that contributed to her infection and disfigurement. Guthy-Renker contends that Ms. Blake has also been diagnosed with acne
several times, but has refused to follow the directions given by health care providers and take the medications prescribed.
Ms. Blake initiated this action against Guthy-Renker, LLC and Guthy-Renker Partners, Inc. in Alaska Superior Court on March 11, 2011. Guthy-Renker removed the action to federal court on the basis of diversity on April 8, 2011. Ms. Blake filed an Amended Complaint on January 4, 2012, which asserts claims for strict liability, negligence, implied warranty, express warranty, failure to warn/recall, misrepresentation/omissions, infliction of emotional distress, and violation of consumer protection laws. She also seeks punitive damages. Guthy-Renker seeks summary judgment on all claims.
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332.
A. Summary Judgment Standard.
Federal Rule of Civil Procedure 56(a) directs a court to " grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The burden of showing the absence of a genuine dispute of material fact initially lies with the moving party. If the moving party meets this burden, the non-moving party must present specific factual evidence demonstrating the existence of a genuine issue of fact. The non-moving party may not rely on mere allegations or denials. She must demonstrate that enough evidence supports the alleged factual dispute to require a finder of fact to make a determination at trial between the parties' differing versions of the truth. A party asserting that a fact cannot be or is genuinely disputed must support that assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
" The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate
references so that it could conveniently be found." 
When considering a motion for summary judgment, a court must accept as true all evidence presented by the non-moving party, and draw " all justifiable inferences" in the non-moving party's favor. To reach the level of a genuine dispute, the evidence must be such " that a reasonable jury could return a verdict for the non-moving party."  The non-moving party " must do more than simply show that there is some metaphysical doubt as to the material facts."  If the evidence provided by the non-moving party is " merely colorable" or " not significantly probative," summary judgment is appropriate.
Ms. Blake asserts that " [t]he Defendants have not . . . complied with the local rules to provide admissible evidence to meet their burden of proof. Defendants had supported their motion with the unverified reports of two defense experts, which is not n compliance with Local Rule 7.1(a)(4)[A]. Defendants have since rectified the deficiencies in this regard by appending the declarations of their experts attesting to the opinions set forth in the expert reports, and Plaintiff has suffered no prejudice from this ...