Court Considering Proposal That Limits Discovery to Link Between Hair Relaxers and Cancer

As the coordinated pretrial proceedings for all federal hair relaxer lawsuits get underway, lawyers representing women diagnosed with uterine cancer, ovarian cancer and other injuries are urging the Court to reject a proposal by the manufacturers to bifurcate discovery, indicating that it will cause lengthy and unnecessary delays in the litigation.

Given common questions of fact and law raised in a growing number of Dark & Lovely lawsuits, Just For Me lawsuits and other claims brought against the manufacturers of widely used chemical hair straighteners, a federal multidistrict litigation (MDL) was established last year before U.S. District Judge Mary M. Rowland in the Northern District of Illinois.

Judge Rowland is now working with the parties to establish a schedule for coordinated discovery and determining when a series of early bellwether trials may be ready to begin, which will help gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation.

Thousands of Hair Relaxer Cancer Lawsuits Expected

There are currently about 125 complaints pending in the federal MDL, each raising similar allegations that women were not adequately warned about the link between use of hair relaxer and cancer, as well as other injuries linked to prolonged exposure to the endocrine disrupting chemicals.

However, lawyers anticipate thousands of additional cases will be brought in the coming weeks and months, given the widespread use of the hair relaxers and perms, which have been specifically marketed as safe for women in the Black community to use for decades.

The litigation emerged after a study was published in October 2022, identifying a strong link between uterine cancer and hair relaxer products that are typically applied directly to the scalp every few months.

In findings published in the Journal of the National Cancer Institute, researchers found that women who frequently used hair straighteners more than 4 times a year faced a 156% increased risk of developing uterine cancer, with African American women disproportionately affected.

As part of the MDL proceedings, it is expected that Judge Rowland will establish a “bellwether” process where a small group of representative claims will go through full discovery and be prepared for early trial dates. While the outcome of these bellwether trials would not be binding on other plaintiffs, they would be closely watched and the average hair relaxer lawsuit payouts would likely influence the amount of any settlements the manufacturers may offer to resolve individual claims.

Bifurcated Discovery Plan Proposed By Manufacturers

In response to the growing number of lawsuits, the manufacturers of hair relaxer products have requested that the court bifurcate discovery before preparing any individual claims for trial. This would require the parties to limit discovery to information relevant to general causation on the link between hair relaxers and cancer, and stay all discovery on other matters, including the liability of the manufacturers for failing to warn, when they learned about the risk, and the extent of damages women may be entitled to receive.

In a brief (PDF) filed on June 5, plaintiffs outlined their strong opposition to this plan, indicating it would cause substantial delays in the litigation, dramatically increases costs and has been shown to be “incredibly inefficient” in reaching a resolution or settlement.

“Although Defendants characterize their proposal as ‘targeted discovery’, their suggested approach would severely prejudice Plaintiffs and burden the Court,” according to the filing. “At best, the parties will engage in substantial disputes and predictable motion practice regarding the demarcation line between general causation discovery and remaining discovery. At worst, Defendant’s approach will ensure a discovery process that is exponentially longer and more expensive, all while delaying the possibility of resolution for women (or their survivors) who are suffering from serious cancers or have died.”

Lawyers point out that many of the plaintiffs are facing grave health consequences from uterine cancer, endometrial cancer, ovarian cancer and other side effects from hair relaxers, and many may not live through a lengthy bifurcated discovery process to have their day in court.

Plaintiffs also argue that the manufacturers have failed to show any good cause for bifurcating the process, which is contrary to standard practice in multi-district litigation, and repeatedly been found to be highly inefficient, costly and impede resolution.

“Defendants’ only purported basis for staying normal discovery here is their hope that they will win summary judgment on general causation – an assumption they assert before any discovery or motion practice has occurred, and despite the fact that Plaintiffs’ allegations are based on multiple scientific studies that Defendants’ hair relaxer products cause cancer,” according to the brief. “Plaintiffs claims are not so ‘utterly frivolous’ to justify the high costs of Defendants’ proposed deviation from standard discovery process.”

If the defendants fail to convince the court to entirely dismiss the litigation after general causation discovery, plaintiffs point out that the first bellwether trial could be four or more years away, since the parties will need to go through two complete rounds of pre-trial discovery and litigation.

Judge Rowland is expected to discuss the proposed discovery plan during the next status conference scheduled for July 6, 2023.