Proposals for Hair Relaxer Bellwether Selection Protocol Submitted to MDL Judge

After lawyers failed to reach an agreement on a hair relaxer lawsuit bellwether plan in the federal MDL (Multidistrict Litigation), each side submitted their competing proposals late last week, outlining how they believe the Court should select and prepare a group of representative claims brought by women diagnosed with cancer from hair relaxer products for early trial dates.

The plans were requested by U.S. District Judge Mary Rowland, who is presiding over  pretrial proceedings in more than 9,000 hair relaxer lawsuits brought throughout the federal court system, which are currently centralized in the Northern District of Illinois as part of a hair relaxer MDL.

The claims have been filed against the manufacturers of several different popular hair relaxer products widely used by African American women, including Just For Me, Dark & Lovely, Optimum and others, each raising similar allegations that users developed uterine cancer, endometrial cancer or ovarian cancer from endocrine disrupting chemicals contained in 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.

Early in the litigation, Judge Rowland indicated that a series of bellwether trials will be held to help the parties gauge how juries may respond to certain evidence that will be repeated throughout thousands of claims brought by women nationwide.

While the outcome of these early trials will not be binding on other women presenting a claim, the average hair relaxer lawsuit payouts awarded by juries may drive negotiations to settle large numbers of claims, and avoid the need for each claim to be remanded back to various different U.S. District Courts for individual trials in the coming years.

Parties Submit Separate Hair Relaxer Bellwether Plans

Judge Rowland initially asked the parties to jointly propose hair relaxer lawsuit bellwether trial plans in November 2023, outlining a process for selecting a group of representative cases to go through case-specific discovery in preparation for early trial dates. However, after the hair relaxer lawyers were unable to agree on a selection process, she called for defendants and plaintiffs to each submit a proposed protocol for identifying 16 cases that will be prepared for early trial dates.

The Plaintiffs’ proposal (PDF) was submitted on January 3, calling for the parties to select representative claims from all lawsuits filed and served by February 1, 2024. They also recommend the selections be made from cases with plaintiff fact sheets deemed “substantially complete” by December 31, 2024.

Under the plaintiffs’ plan, each side would select eight cases from the pool, limiting those selections to cases involving uterine, endometrial or ovarian cancer by February 28, 2025. Those cases would then go through core discovery for seven months, completing that phase of preparation by September 30, 2025.

The defendants’ plan (PDF), submitted on the same day, includes a number of additional steps, however. First the plan calls for the candidate cases to include any claim filed by February 1, 2024, and not just those with substantially complete plaintiff fact sheets. Instead, defendants want the court to select a random sample of 300 cases from a pool of about 6,700 claims that would be eligible by March 7, 2025.

They then call for plaintiffs and defendants to each choose 12 cases, for a total of 24 potential bellwether pool claims. Each side would then strike four of the cases, ending with 16 cases by May 6, 2025. These cases would go through case-specific discovery for another eight months, which would not result in any individual case being trial ready until early 2026.

From these two potential plans, Judge Rowland has indicated the court will issue a comprehensive bellwether approach to address additional issues beyond the selection process.

The outcome of these future bellwether trials will be closely watched by lawyers involved in the litigation, and may have a substantial impact on the timing and average amounts of any hair relaxer settlements offered to women diagnosed with uterine cancer, endometrial cancer and ovarian cancer in future years.