Competing Plans For Hair Relaxer Lawsuit Bellwether Trials To Be Submitted by Parties in MDL

Early test trials will help gauge how juries may respond to evidence that will be repeated in thousands of hair relaxer lawsuits being pursued by women diagnosed with uterine cancer, ovarian cancer and other injuries.

After the parties were unable to agree on a plan for selecting and preparing a group of representative cases to serve as early bellwether test trials, the U.S. District Judge presiding over all federal hair relaxer lawsuits has directed the parties to submit their respective proposals by Monday.

Nearly 10,000 women throughout the United States are currently pursuing product liability claims against the manufacturers of popular hair straighteners, such as Dark & Lovely, Just for Me, ORS Olive Oil and other products widely used among African American women, each raising similar allegations that application of the chemicals resulted in the development of uterine cancer, ovarian cancer, endometrial cancer, uterine fibroids and other injuries.

The litigation emerged late last year, following the publication of a study that highlighted a link between use of hair relaxer and uterine cancer, finding that women who regularly used the products face a 156% increased risk compared to women who did not use hair relaxers.

Plaintiffs now seek financial compensation, indicating that manufacturers knew or should have known about the risks associated with endocrine disrupting chemicals in hair relaxers, but placed their desire for profits before the health and safety of African Americans and other women.

Given common questions of fact and law raised in hair relaxer lawsuits filed throughout the federal court system, the U.S. Judicial Panel on Multidistrict Litigation (JPML) established coordinated pretrial proceedings in the Northern District of Illinois under U.S. District Judge Mary Rowland in January 2023.

Early in the litigation, Judge Rowland indicated that the court will establish a bellwether process, where a small group of representative lawsuits involving different products and specific injuries will be prepared for early trial dates, to help the parties gauge how juries may respond to certain evidence that will be repeated throughout the litigation.

While the outcome of these test trials will not have any impact on other Dark & Lovely lawsuits, Just for Me lawsuits and claims filed against the manufacturers of other products, the average amounts of jury awards may promote potential hair relaxer settlements that could avoid the need for thousands of individual claims to go to trial nationwide.

Hair Relaxer Bellwether Trial Plans

Last month, parties proposed draft hair relaxer lawsuit bellwether trial plans, which outlined a process for selecting potential bellwether cases and putting them through the discovery process. According to a plan proposed by plaintiffs, the first hair relaxer lawsuit bellwether trial would not begin until November 3, 2025, with a second trial starting on February 2, 2026.

On November 15, Judge Rowland issued a pretrial order directing the parties to meet and confer, and submit a proposed Bellwether Protocol by December 11. However, according to a joint motion (PDF) filed on December 8, the parties indicate they have been unable to come to an agreement on one unified plan, and asked for an extension of the deadline for submitting their competing proposals.

In a Notification of Docket Entry (PDF) posted this week, Judge Rowland granted the time extension, and directed each side to submit their respective Bellwether Protocols by Monday, December 18, 2023.

Following coordinated discovery in the MDL and any early bellwether trials, if the parties fail to negotiate hair relaxer settlements for individuals diagnosed with uterine cancer, ovarian cancer, uterine fibroids and other complications, Judge Rowland may later remand each individual lawsuit directly filed in the MDL back to the U.S. District Court where it would have originated for a separate trial.