Anna Chester v. Deep Roots Tatoo & Body Modification

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
ANNA CHESTER,
No. 73225-1-1
Appellant,
DIVISION ONE
v.
DEEP ROOTS ALDERWOOD, LLC, PUBLISHED OPINION
A WASHINGTON CORPORATION;
AND BONNIE GILLSON
Respondents. FILED: April 4, 2016
Spearman, C.J. —Anna Chester suffered an adverse reaction after being
tattooed with ink that appears to have been contaminated with bacteria when the
tattoo artist received it from the distributor. Chester brought negligence claims
against the tattoo artist and the tattoo parlor, arguing that they had a duty to use
sterile ink. The trial court dismissed her claims on summary judgment and
Chester appeals. We affirm, because neitherthe regulations governing the tattoo
industry nor the common law impose a duty to use sterile ink.
FACTS
Bonnie Gillson, a tattoo artist, applied a tattoo to Anna Chester at Deep
Roots Alderwood, LLC, a shop specializing in tattoos and body piercing. For the
black portion of the tattoo, Gillson used One brand tattoo ink. One was a popular
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ink that Gillson had used for about a year and a half without problem. She
ordered the ink from Kingpin, a distributor from whom she ordered many tattoo
supplies.
A few weeks after applying Chester's tattoo, Gillson learned that several of
her clients were experiencing adverse reactions to the black ink portions of their
tattoos. An investigation by King County Public Health traced the reactions to a
particular bottle of One brand black tattoo ink. The investigation indicated that the
ink had likely been contaminated during manufacture. Gillson contacted every
client she tattooed during the period oftime she used the contaminated bottle of
ink. Most clients suffered only a minor skin irritation that did not require medical
treatment.
Chester, however, suffered a serious reaction to the contaminated ink.
She consulted a doctor who diagnosed a bacterial infection at the tattoo site and
prescribed a course of antibiotics. The infection did not respond to the prescribed
treatment. Chester's kidney function declined rapidly. In the opinion of Chester's
doctor, the bacterial infection aggravated an underlying chronic kidney disease.
Chester was eventually referred to an infectious disease specialist, Dr. Warren L.
Dinges. Dinges successfully treated the infection. But before the infection was
brought under control Chester's kidneys had failed, requiring her to begin
dialysis.
No. 73225-1-1/3
Chester brought product liability and negligence claims against Gillson
and Deep Roots.1 To support her negligence claims, Chester relied on two
declarations from her medical expert, Dinges. Gillson and Deep Roots moved to
strike Dinges's second declaration. The trial court granted the motion in part.
Gillson and Deep Roots moved for summary judgment. Chester conceded
dismissal of her product liability claims, but opposed the motion as to her
negligence claims. The trial court found as a matter of law that Chester's
evidence failed to establish the essential elements of negligence and granted
summary judgment for Gillson and Deep Roots. Chester appeals.
DISCUSSION
Chester argues that the trial court erred in finding that she did not show
the elements of negligence. We review a decision on summary judgment de
novo, engaging in the same inquiry as the trial court. Camicia v. Howard S.
Wright Constr. Co., 179 Wn.2d 684, 693, 317 P.3d 987 (2014). To survive
summary judgment on a negligence claim, Chester had the burden to produce
evidence that the respondents owed her a duty of care and breached that duty.
Hurley v. Port Blakelv Tree Farms LP.. 182 Wn. App. 753, 773, 332 P.3d 469(2014) review denied, 189 Wn 7d 2008 (2015V (citing Crowe v. Gaston, 134
Wn.2d 509, 514, 951 P.2d 1118 (1998)). She also had to show that the breach
resulted in injury and was the proximate cause of that injury. Id.1 Chester also brought product liability claims against Kingpin and one of Kingpin's
suppliers. These claims were not dismissed on summary judgment and are not before this court.
No. 73225-1-1/4
Chester first argues that the respondents were negligent per se because
they violated a statutory duty of care. Chester relies on RCW 5.40.050(3), under
which the breach of tattooing regulations related to the use of sterile needles is
negligence per se. She asserts that WAC 246.145.050(1), which requires that
tattoo artists use "sterile instruments and aseptic techniques at all times during a
procedure," imposes a duty to use sterile ink.
We review questions of statutory interpretation de novo. Pham v. Corbett,
187Wn.App. 816, 831, 351 P.3d 214 (2015) (citing State v. Wentz. 149Wn.2d
342, 346, 68 P.3d 282 (2003). In interpreting statutes, our aim is to discern and
implement the Legislature's intent. \± (citing State v. J.P.. 149 Wn.2d 444, 450,
69 P.3d 318 (2003)). We begin with the plain language of the statute. ]d. Where
the plain language is unambiguous and the legislative intent is apparent, we "'will
not construe the statute otherwise.'" Id. (quoting JP,, 149 Wn.2d at 450).
Legislative intent may be discerned from the statutory scheme as a whole. |d.
(quoting Dep't of Ecology v. Campbell &Gwinn. LLC. 146 Wn.2d 1, 11, 43 P.3d 4(2002)). The same principles apply to the interpretation of regulations as to the
interpretation of statutes. Silverstreak. Inc.. v. Washington State Dep't. of Labor
and Industries. 159 Wn.2d 868, 898, 154 P.3d 891 (2007).
The Legislature authorized the secretary of health to regulate the tattoo
industry and instructed the secretary to adopt rules "in accordance with nationally
recognized professional standards." RCW 70.54.340. The legislature further
directed the secretary to "consider the standard precautions for infection control,
as recommended by the United States centers for disease control." RCW
No. 73225-1-1/5
70.54.340. In compliance with these directives, the secretary of health adopted
chapter 246-145 WAC to regulate electrology, body art, body piercing, and
tattooing.
WAC 246-145-050 details 24 "universal precautions" applicable to tattoo
artists and body piercers. Three subsections include sterilization requirements.
Artists must use "sterile instruments and aseptic techniques at all times during a
procedure." WAC 246-145-050(1). They must use only presterilized single-use
disposable tattoo needles. WAC 246-145-050(2). Artists must obtain jewelry
used in body piercing presterilized or sterilize the jewelry on site prior to the
procedure. WAC 246-145-050(20). The regulation includes two provisions
concerning tattoo ink. Tattoo artists must use single-use ink containers for each
client to prevent contaminating the unused portion of ink. WAC 246-145-050(15).
Artists may not use inks that are banned or restricted by the FDA. WAC 246-145-
050(18).2
The next regulation, WAC 246-145-060, details the requirements for
"[s]terile procedures in body art, body piercing and tattooing." The
regulation repeats the requirement to use only single-use, presterilized
disposable needles. WAC 246-145-060(1 )(a). It requires artists to only reuse
instruments intended for multiple use that have been cleaned and sterilized
between clients. WAC 246-145-060(1 )(c). The regulation gives specific
2 The FDA does not require that tattoo inks be sterile. See Centers for Disease Control,
Morbidity and Mortality Weekly Report (MMWR), Tattoo-Associated Nontuberculous
Mycobacterial Skin Infections—Multiple States. 2011-2012 (August 24, 2012) Vol. 61, No. 33,
653-656 at http://www.cdc.gov/mmwr/pdf/wk/mm6133.pdf
No. 73225-1-1/6
requirements for sterilizing and storing reusable instruments. WAC 246-145-
060(1)(c)-(g). The regulation includes no requirements for ink.
There is no regulation that, by its plain language, creates a duty to use
sterile ink. The regulatory scheme as a whole indicates that the secretary
carefully considered sterilization as it applies to the tattoo industry. The
regulations require that some items be obtained presterilized and that others be
sterilized on site, according to detailed procedures. The secretary also
considered tattoo ink and issued rules concerning what ink may be used and how
ink must be dispensed.
Considering the detail of the regulatory scheme, the specific requirements
concerning sterilization, and the attention given to tattoo ink, it is not reasonable
to conclude that the secretary intended to require the use of sterile ink but
couched that duty within the requirement to use sterile instruments and aseptic
technique. We conclude that the plain language ofthe regulation is not
ambiguous and the legislative intent is clear. There is not a regulatory
requirement to use sterile ink.
Chester next argues that the definition section of RCW 70.54.330 is an
independent basis for finding the respondents negligent perse. RCW
70.54.330(4) defines "tattooing" as an indelible mark "introduced by insertion of
nontoxic dyes or pigments into or under the subcutaneous portion of the skin."
Chester contends that this section creates a duty to use only nontoxic ink and
that the respondents breached this duty by using contaminated ink. The
No. 73225-1-1/7
respondents argue that the section does not apply to the negligence per se
statute, RCW 5.40.050(3). We agree with the respondents.
RCW 5.40.050 establishes negligence per se for the breach of a duty
created by statute or rule relating to "(3) sterilization of needles and instruments
used by persons engaged in the practice of body art, body piercing, tattooing, or
electrology, or other precaution against the spread of disease, as required under
RCW 70.54.350." The referenced statute, RCW 70.54.350 states, "[a]ny person
who practices electrology or tattooing shall comply with the rules adopted by the
department of health under RCW 70.54.340." The negligence per se statute thus
applies to the breach ofany tattooing regulation having to do with precautions
against the spread of disease. The definition of tattooing in RCW 70.54.330(4) is
not such a regulation.
This reading is in harmony with other statutory and regulatory provisions
defining tattooing. RCW 18.300.010, which became effective at the same time as
the tattoo regulations, explicitly states that its definitions apply to RCW 5.40.050,
the negligence per se statute. The statute defines "tattooing" as "to pierce or
puncture the human skin with a needle or other instrument for the purpose of
implanting an indelible mark." RCW 18.300.010(8). The regulations also use this
definition. WAC 246-145-101(25). Neither the statutory nor the regulatory
definition encompassed by the negligence per se statute includes the word
"nontoxic."
At oral argument and in a statement of additional authorities, Chester also
asserted that the respondents were negligent per se because they violated the
No. 73225-1-1/8
Federal Food, Drug, and Cosmetic Act (FDCA). Chester argued that the
respondents violated 21 U.S.C. § 331, which prohibits introducing or receiving in
interstate commerce any adulterated cosmetic. This argument is without merit
because the FDCA does not create a private right of action. 21 U.S.C. § 337.
Furthermore, the Act does not impose penalties on retailers who deliver
adulterated cosmetics in good faith. 21 U.S.C. § 333(c).
We conclude that Chester has not shown the existence of a statutory duty
to use sterile ink and we reject her claim of negligence per se.
Chester argues in the alternative that she established the elements of
common law negligence. Chester asserts that even if the respondents owed only
a duty of reasonable care, they breached that duty by not using sterile ink or
confirming that the ink was not contaminated.
Chester does not assert that sterile ink is the industry standard. But she
argues that even if sterile ink is not routinely used, the risks associated with using
contaminated ink far outweigh the burden of using sterile ink. She argues that the
respondents thus breached a duty of reasonable care by failing to ensure the ink
they used was sterile.
Chester relies on Helling v. Carey, 83 Wn.2d 514, 519 P.2d 981 (1974), in
which the Supreme Court quoted Judge Learned Hand and followed his cost-
benefit analysis. \± at 519. In Helling, a 32-year-old patient became partially
blind due to undetected glaucoma. \± at 516. The defendant ophthalmologists
presented evidence that glaucoma is uncommon in young patients and the
industry standard was to administer routine glaucoma tests after the age of 40.
8
No. 73225-1-1/9
jd. But the court held that, given the severity of glaucoma and the availability of a
simple and harmless test to detect the disease, the doctors breached a duty by
failing to administer the test. jd. at 519.
Chester's argument falls short because she glosses over the burden of
using sterile ink. In Helling, it was undisputed that the ophthalmologists could
easily administer a simple glaucoma test. Helling, 83 Wn.2d at 519. Chester
asserts that using sterile ink is similarly easy as "Gillson can simply order sterile
rather than non-sterile ink " Br. of Appellant at 23. She further argues that the
respondents had not only a duty to purchase ink advertised as sterile, but also a
duty to ensure that ink was in fact sterile. However, Chester has not shown that
sterile ink was widely available at the time in question, that claims of sterility were
reliable, or that tattoo artists had the means to test ink for contamination and
sterilize it on site.
Chester presented evidence that Intenze brand tattoo ink was advertised
as sterile about the time that Gillson purchased the One brand ink. She also
produced the article Microbial status and product labelling of 58 original tattoo
inks (2011) as evidence ofthe association between tattoo ink and bacterial
infection. The article reports on a study of 58 inks for sale in the European
market. Concerning those inks claiming to be sterile, the authors found that none
of the claims could be verified and some were demonstrably false. The authors
found that Intenze black ink, advertised as sterile, contained a high level of
bacterial contamination.
No. 73225-1-1/10
The record includes a further example of an unreliable claim of sterility. At
some point prior to March 2012, the One brand website claimed that its ink was
sterile. An inspection determined that, although the manufacturer was having the
ink treated with gamma radiation, the dosage of radiation was not sufficient to
support the claim of sterility.
Chester has not shown that sterile ink was readily available or that claims
of sterility were reliable. She offered no evidence that tattoo artists have the
means to test ink for contamination or sterilize ink received from distributors. We
conclude that Helling is distinguishable. Chester has not established that the
respondents' duty of reasonable care required them to use sterile ink.
Chesteralso argues that the trial court erred in striking one paragraph of
Dinges's second declaration and in considering another paragraph only as
medical opinion. She argues that the court should have considered the
declaration in its entirety and that the declaration is evidence that the
respondents had a duty to use sterile ink.
The de novo standard applies to evidentiary rulings on admissibility. Keck
v, Collins. 184 Wn.2d 358, 368, 357 P.3d 1080 (2015) (citing Folsom v. Burger
King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998)). Affidavits in support of a
summary judgment motion must contain facts that would be admissible in
evidence. CR 56(e). Statements in an affidavit are not inadmissible because they
"embraced an ultimate issue to be decided by the trier offact." ER 704. However,
a witness may not draw "conclusion[s] of law." Everett v. Diamonds, 30 Wn. App.
787, 791, 638 P.2d 605 (1981). Statutory interpretation is the province of the
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No. 73225-1-1/11
court, and is not a proper subject of testimony. kL at 792 (citing Ball v. Smith, 87
Wn.2d 717, 722-723, 556 P.2d 936 (1976)).
In his second declaration, Dinges comments on the use of "sterile
instruments and aseptic technigues at all times during a procedure" as required
by WAC 246-145-050(1). Dinges states:
Regardless of the credentials of the person performing the
injection, the requirement to "use sterile instruments ...at all times
during a procedure" seems unambiguous to me. The only meaning
that I can attach to that rule is that, if a tattoo artist inserts into a
customer, by way of an instrument, understood to be a needle used
to penetrate the surface of the skin, ink that is contaminated with
bacteria, then clearly "sterile instruments" were not used at all times
during the procedure because the instrument, meaning the
instrument used to penetrate the customer's skin, was
contaminated with bacteria.
Clerk's Papers (CP) at 369.
Chester asserts that the trial court erred in striking this passage as legal
opinion. She argues that the statement that the tattoo needle was not"sterile" is
a statement of fact, not a legal opinion. Chester further argues that this
paragraph contains only explanations of the regulatory terms.
In the stricken paragraph, Dinges does not merely explain the term
"sterile" or state that a tattoo needle is no longer sterile after it has come into
contact with contaminated ink. Dinges states that it "seems unambiguous" that by
requiring "'sterile instruments'" the regulation prohibits the use of any non-sterile
ink. (Quoting CP at 369). Dinges then draws the conclusion that, in the
circumstances of the present case, "clearly 'sterile instruments' were not used."
The paragraph both construes the regulation and reaches the legal conclusion
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No. 73225-1-1/12
that the respondents violated the regulation. Conclusions of law and statutory
interpretation are not proper subjects for testimony. Everett. 30 Wn. App. at 791.
Chester next argues that the statement is admissible as Dinges's
understanding of the standard of care and a breach of that standard. Chester
quotes White v. Kent Med. Ctr.. Inc.. P.S.. 61 Wn. App. 163, 171, 810 P.2d 4(1991), for the proposition that the standard ofcare and a breach of that standard
"'ordinarily must be shown by expert medical testimony.'" White, however, is
inapposite because it involved a claim of medical negligence, jd. Expert
knowledge of the profession at issue is necessary to testify to the standard of
care within that profession. Young v. Kev Pharmaceutical. Inc.. 112Wn. 2d a
216, 227-230, 770 P,2d 182 (1989) (pharmacist not qualified to testify that
physicians breached their standard of care). Dinges does not claim to be a tattoo
artist or an expert in tattooing. His testimony is therefore not admissible to
establish the standard of care for tattoo artists. The trial court did not err in
striking the paragraph as legal opinion.
Chester also argues that the trial court erred in considering the following
paragraph of Dinges's declaration only as medical opinion:
In my opinion the absolute minimum that is required for a
tattoo artist (or any person intending to inject a substance into a
person) to be able to claim the use of sterile instruments and
aseptic technique at all times during the procedure is that the artist
only use ink that is in fact sterile. In this case, the artist did not use
ink that was in fact sterile because the black ink in Ms. Chester's
tattoo was contaminated with bacteria.
To ensure sterile instruments and aseptic technique
throughout the procedure, the procedure has to start with sterile
tattoo ink.
12
No. 73225-1-1/13
CP at 370.
Chester argues that the legislature directed the secretary of health to
"consider the standard precautions for infection control, as recommended by the
United States centers for disease control" (CDC). RCW 70.54.340. She asserts
that this directive indicates that medical doctors and the secretary of health share
the same understanding of sterility, and Dinges is qualified to testify to that
shared understanding. She argues that the trial court erred in not considering the
challenged paragraph to establish the elements of negligence.
Chester's argument fails because, while Dinges is qualified to testify to the
meaning of the term "sterile," his statement goes beyond explaining the term.
The challenged statement includes Dinges's opinion that the regulation requiring
the use of sterile instruments and aseptic technique includes an unstated
requirement to use sterile ink. To the extent Dinges interprets the statute, his
statement is inadmissible because statutory interpretation is the province of the
court. To the extent Dinges testifies to the standard of care, his testimony is
inadmissible because he is not an expert in tattooing.
Chester's argument concerning the CDC does not change this result. The
legislature instructed the secretary to adopt rules "in accordance with nationally
recognized professional [tattoo] standards" and to "consider the standard
precautions for infection control, as recommended by the United States centers
for disease control." RCW 70.54.340. This instruction to the secretary does not
impose CDC or other medical standards on tattoo artists. The secretary of health
and medical professionals may share an understanding of sterility, as Chester
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No. 73225-1-1/14
asserts, but the secretary did not promulgate regulations imposing medical
standards on tattoo artists. Dinges is a medical expert. We conclude that the trial
court did not err in considering his statement as medical opinion, but not as
evidence of duty and breach within the tattoo industry.
Affirmed.
5« •4_A-^( s~\4~—
7
CX
WE CONCUR:
CD
14