Lawyers in Hair Relaxer Cancer Lawsuits Fail To Reach Agreement on Bellwether Plan

Court has given the parties until January 3 to submit their competing plans for hair relaxer lawsuit bellwether trial protocols.

As the U.S. District Judge presiding over all federal hair relaxer lawsuits works to establish a bellwether trial program to help gauge evidence that will be repeated throughout thousands of claims brought by women diagnosed with uterine cancer, endometrial cancer and ovarian cancer, the parties reported last week that they have been unable to reach an agreement on the process for selecting the 16 cases that will be prepared to go before juries.

There are currently nearly 10,000 product liability lawsuits pending in the federal court system against manufacturers of popular hair relaxer products, including Dark & Lovely, Just For Me, ORS Olive Oil and others, each raising similar allegations that users were not adequately warned about risks associated with endocrine disrupting chemicals contained in the hair straightening products.

The litigation emerged after the publication of a study in October 2022, which highlighted a link between hair relaxers and cancer, finding that women who regularly used the products face a 156% increased risk of uterine cancer compared to women who did not use them. Other studies have also found that exposure to the chemical hair straighteners may cause ovarian cancer, as well as other injuries.

Given common questions of fact and law presented in complaints brought by women throughout the U.S., the lawsuits have all been centralized in the Northern District of Illinois as part of a hair relaxer lawsuit MDL, or multidistrict litigation, where U.S. District Judge Mary Rowland is presiding over coordinated discovery and pretrial proceedings.

Early in the litigation, Judge Rowland indicated that the Court will establish a “bellwether” process, where a small group of representative claims will be prepared for early test trials, to help determine how juries may interpret certain evidence and testimony that will be repeated throughout a large number of claims.

In November 2023, Judge Rowland ordered the parties to propose competing hair relaxer lawsuit bellwether trial plans, outlining a process for selecting a group of representative cases to go through case-specific discovery in preparation for early trial dates. However, the parties were unable to agree on several key points regarding the process for selecting representative claims, as well as when the bellwether trials should get underway.

In advance of a status conference scheduled for January 9, the parties recently submitted a report (PDF) indicating that they have met and conferred several times, but remain unable to reach an agreement on several issues regarding the selection of 16 bellwether claims, or a briefing schedule.

“[T]he bellwether selection process has effectively been in limbo since the parties’ prior briefing and the status conference regarding the same on January 25, 2024,” according to the plaintiffs’ position statement outlined in the report. “The 11-month delay has, in large part, been due to Defendants’ representations that they needed to receive and review a significant percentage of ‘substantially complete’ [Plaintiff Fact Sheets] before they could select their 8 bellwether pool cases (of the agreed to 16 cases).”

In contrast, the manufacturers seek further delays in the bellwether process, indicating that plaintiffs are attempting to “force an immediate selection” of cases for trial, before discovery is complete and they have had a reasonable opportunity to review and process the totality of information that has been provided in each case. The defendants proposed that the court extend deadlines for considering the issue until after the “December-January holidays,” proposing that the parties submit simultaneous briefs no earlier than January 23, 2025.

In a Docket Entry (PDF) entered on December 13, Judge Rowland rejected that proposed timeline, ordering the parties to submit briefings by January 3, 2025, not only regarding the selection process for the 16 bellwether cases, but also the timing for completing discovery in those claims.

The Court indicates that it intends to issue a “comprehensive bellwether protocol,” which addresses additional issues beyond the process for selecting the individual hair relaxer cases that will go through case-specific discovery and preparations for early trial dates.

While the outcome of the early bellwether trials held in the MDL will not have any binding impact on other claims being pursued, the average hair relaxer lawsuit payouts awarded by juries may have a substantial impact on settlement negotiations and the amount manufacturers may need to pay to avoid each individual claim going before a jury in future years.