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Lawsuits Alleging Hair Relaxers Caused Cancer Should Be First Bellwether Trials Prepared in MDL, According to Plaintiffs
Lawyers involved in federal hair relaxer lawsuits will meet today with the U.S. District Judge presiding over the litigation, to review competing proposals for selecting early bellwether cases, as plaintiffs continue to push for the first trials to be limited to cases involving women diagnosed with ovarian, uterine or endometrial cancer.
Thousands of product liability lawsuits have been filed over the past year against manufacturers of popular hair relaxer products used by African American women, including Dark & Lovely, Just for Me, ORS Olive Oil, Optimum and others, each involving similar allegations that endocrine disrupting chemicals in the products caused women to develop certain cancers or other injuries.
The vast majority of the litigation involves either uterine cancer lawsuits or ovarian cancer lawsuits. However, a number of claims have also been filed over the development uterine fibroids or other non-cancerous growths.
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, where the parties have been focusing on common discovery that impacts all claims.
Judge Rowland also indicated early in the litigation 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.
Hair Relaxer Bellwether Trials Should Involve Cancer Claims: Plaintiffs
In November, parties proposed competing draft hair relaxer lawsuit bellwether trial plans, which outlined a process for selecting potential bellwether cases and putting them through case-specific discovery in preparation for early trial dates. However, the parties have been unable to agree on several key points regarding the bellwether selections, as well as when the first trials should begin, and how big a factor general causation should play in the early phases of the litigation.
Today, the parties will meet with Judge Rowland for a case management conference and attempt to iron out some of the differences, according to a Joint Status Report (PDF) submitted by the parties on January 18. Just days before, on January 16, the sides submitted competing proposed bellwether protocols in an attempt to explain their respective positions regarding which cases should go to trial first.
Plaintiffs’ submission (PDF) calls for the first bellwether trials to consist of only cases involving women diagnosed with cancer from hair relaxers; specifically endometrial cancer, ovarian cancer and uterine cancer.
“The reason for this is simple: the overwhelming majority of the cases in this MDL are cancer cases, and addressing these three types of cancer cases first provides guidance on the viability and valuation of the vast majority of the docket,” plaintiffs wrote. “This approach will drive resolution.”
In a separate submission (PDF), Defendants urge the court to also include other injuries that have been raised in complaints. However, plaintiffs maintain this approach is “ill-defined”, and will substantially delay financial compensation for women diagnosed with cancer, while the parties dispute issues that will arise regarding the other injuries.
The plaintiffs also accuse the defendants of continuing to push a bifurcated approach to the discovery process, making general causation arguments an early part of the process, which Judge Rowland has already rejected in previous rulings.
“This Court has asked the parties for briefing on a proposed bellwether process—not another round of briefing on bifurcating or prioritizing general causation discovery,” plaintiffs noted. “Defendants’ insistence on effectively proposing the same “prioritization” under the guise of a bellwether plan should be rejected.”
Hair Relaxer Science Day, Discovery and Plaintiff Fact Sheets
Today’s status conference will also include discussions on holding a “Science Day” to educate the court about the scientific underpinnings of the litigation and how hair relaxer chemicals allegedly cause an increased risk of cancer and other injuries. According to the joint status report, the parties have also submitted competing submissions for how those hearings should be handled.
Such proceedings typically involve non-adversarial presentations by expert witnesses or parties, which are intended to educate the court about issues and concepts which will come up during the proceedings. The presentations are not part of the official record in the case, or subject to cross examination. However, information presented may guide the Court in any future rulings or motions about evidence to be presented in the hair relaxer lawsuits, including decisions about which expert witness testimony may be presented to juries.
The parties will also discuss proposed plaintiff fact sheets, delays in discovery proceedings and how class action hair relaxer lawsuits should be handled, as well as the bellwether process.
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.
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, endometrial 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.
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