Legally Speaking: "Warning: This Underwear May Land You in Court"

The SE Texas Record Jul. 8, 2008, 7:10am

The sexy, delicate lingerie sold by Victoria's Secret is supposed to be barely legal and eye-catching – just not literally eye-catching.

Recent lawsuits filed against the prominent panty purveyor have me convinced that before long, Victoria's Secret and their models like Gisele Bündchen and Adriana Lima are going to need some full-time legal help (Gisele – call me. I'm available, even though my wife might not be too thrilled).

In June, Victoria's Secret was sued by 52-year-old Los Angeles traffic cop Macrida Patterson. According to Ms. Patterson, she was injured by what she contends is a defective thong (the "Sexy Little Thing" low-rise V-string, to be precise), a tiny piece of blue fabric with a rhinestone heart comprising part of the waistband, and connected to the fabric via metal links.

In May 2007, while changing in her locker room at work, says Ms. Patterson, "I was putting on my underwear from Victoria's Secret, and the metal popped into my eye. It happened really quickly."

Despite what she describes as "excruciating pain," Ms. Patterson drove home although she went to the hospital the next morning. According to her attorney, Jason Buccat, Ms. Patterson suffered three cuts to her cornea which "left some severe damage" and which required treatment with a topical steroid.

Patterson claims that she contacted Victoria's Secret the day of the injury, and that company representatives asked her to send them the thong. However, on the advice of her attorney, she declined to do so.

"We were actually happy for them to view the thong, but…we were not going to relinquish that item to them altogether," said attorney Buccat.

Yes, that's right – within mere hours of this incident happening, and apparently before she even went to a hospital, Macrida Patterson consulted a personal injury attorney, and elected not to let Victoria's Secret examine the supposedly defective thong.

According to Buccat, the case is not about money – yet when pressed, the attorney talks about his intent "to make Macrida fully redressed for her grievous injury," something that he says will take more than $25,000.

Buccat claims that the thong has "obvious defects" in both its design and manufacture. He says that not only did Victoria's Secret choose "to put a decorative piece with sharp points and metal gear on its underwear," but they placed it on a "natural stress point."

I've seen Ms. Patterson talking about her lawsuit on television (Victoria's Secret has had no comment on the recently-filed lawsuit), and I have to agree with her lawyer on one thing. The 52-year-old Ms. Patterson is a woman whose proportions definitely put that thong under a lot of stress. I just don't know whether attempting to wear something that may or may not be appropriate for one's bodily dimensions automatically renders the garment defective (if so, then get ready for my lawsuit against Speedo).

Of course, that's not the only lawsuit facing Victoria's Secret. In 2005, Jessica Lang, an aspiring model from Greenville, S.C., sued the lingerie company over an exploding bra.

According to the lawsuit, Ms. Lang bought a bra from the Haywood Mall Victoria's Secret and 13 days later began to feel some breast discomfort. When she tried to remove the bra, the brassiere "malfunctioned, lacerating the plaintiff's chest nearly 3 inches by one-quarter inch deep, resulting in scarring."

Because Victoria's Secret "negligently and carelessly designed, manufactured, constructed, assembled, inspected, and sold the brassiere that…was dangerous and unsafe for its intended uses," the bra broke, allowing the underwire to come through and cut Lang's breast. Lang is seeking "lost wages, pain and suffering, future disability, loss of prospective business relations, and medical expenses," as well as unspecified actual and punitive damages.

In response, Victoria's Secret has removed the case to federal court in Greenville (Victoria's Secret is a Delaware corporation, with its principal place of business in Ohio). The undergarment maker denies any wrongdoing, and says that Lang's injuries were caused by her own negligence. Furthermore, Victoria's Secret maintains it had no duty to warn about possible dangers or hazards that it did not and could not have known about.

And these aren't the only product defect lawsuits facing Victoria's Secret. In a New York case, Ramos v. Victoria's Secret Stores, a Bronx woman also claims to have suffered "severe personal injuries" while wearing one of the company's bras.

Meanwhile, in Ritter v. Victoria's Secret Stores, a woman from Parma, Ohio, is seeking to certify a class action composed of plaintiffs who have suffered "adverse physical effects" from wearing undergarments and intimate apparel that caused allergic reactions, contact dermatitis, blistering, itching, hives, rashes "and other health concerns."

Not every lawsuit brought against Victoria's Secret is the byproduct of a wardrobe malfunction. In April, a New York woman filed suit against Victoria's Secret and its parent company (Limited Brands Inc.), claiming that they infringed a patent she obtained when they came out with their Very Sexy 100-way strapless convertible bra.

According to Katerina Plew, a 38-year-old single mother who works as a paralegal, she "went crazy looking for a bra where the straps wouldn't show." When she couldn't find one in stores or catalogues, Plew invented her own, investing about $12,000 to patent her idea and develop a prototype bra.

Because of the high costs to manufacture and market the product, she started contacting companies. In April, 2006, she mailed a copy of her patent along with a DVD with pictures of a model wearing the bra to Victoria's Secret, and was elated when a Victoria's Secret executive scheduled a meeting with her. However, the meeting was abruptly cancelled. One year later, Plew was in a Victoria's Secret store when she became aware of the alleged infringement.

"I walked into a Victoria's Secret and there was my bra up on the wall… I actually cried," she said. Both Plew's patented bra and the "VS-Bra" have straps that detach along with numerous eyelets and hooks that permit the bra to be worn in 100 different ways, according to the lawsuit pleadings. Plew is seeking unspecified damages.

Did Victoria steal Katerina Plew's secret? Does Victoria's Secret sell exploding bras and thongs that are both literally and figuratively eye-catching, or does the responsibility rest with some female consumers who engaged in the fashion equivalent of pouring six pounds in a four pound sack? Only time, and the juries, will tell. Victoria's Secret may have its angels, but as the saying goes, the devil is in the details.

John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at:

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