by Attorney Jeff Keiser
Hair Straightener Litigation
One of the hottest cases sweeping the country today is the hair straightener litigation, and lawsuits are being filed in federal court due to a new study that effectively proves that hair straighteners increase the risk of uterine cancer, uterine fibroids, breast cancer and endometriosis.
A 2022 National Institutes of Health (“NIH”) study shows an increased risk of uterine cancer in women who used the product. The study is commonly referred to as the “Sister Study”, and its results were clear – frequent use of chemical hair relaxers (over 4 times per year) over long-time periods increased the risk of uterine cancer by as much as 150%.
Plaintiff lawyers argue that the Sister Study is a definitive link between use of the product and uterine cancer.
Hair straightener products have also been linked to breast cancer, uterine fibroids and endometriosis.
Chemical hair straightener brands named as defendants include: Dark and Lovely, Just for Me, L’Oréal, Motions, Namaste, Olive Oil Girls, Optimum, Soft & Beautiful, Strength of Nature Global LLC and TCB Naturals.
Lawsuits claim that these products were heavily marketed to African American women, who are more likely to use chemical hair straighteners.
Massive Plaintiff Pool
As of December 2022, plaintiffs have moved to centralize the litigation, but the JPML has not heard oral arguments. I expect these arguments will be heard at the next JPML hearing in Miami, Florida on January 26, 2023.
As of December 2022, plaintiffs have moved to centralize the litigation, but the JPML has not heard oral arguments. I expect these arguments will be heard at the next JPML hearing in Miami, Florida on January 26, 2023.The case certainly makes sense for centralization, but until the JPML speaks, there will be no progress on that front. I expect we’ll have an answer by February.
The first case was filed in federal court in Chicago and many more have been filed since then. To date, all filed lawsuits have been uterine cancer cases, but now that we have an MDL, I expect breast cancer, uterine fibroids, and other cases to follow shortly.
The size of the potential plaintiff pool in this litigation is massive. Your intake form should start from a relatively simple place; any woman who regularly used hair relaxer and was later diagnosed with uterine cancer is a potential plaintiff.
Over 60,000 uterine cancer cases are diagnosed each year, and even though only a small proportion of those will be linked to hair straighteners, this MDL has immense value.
So how much are these cases worth? Some plaintiff firms have already started estimating settlement amounts, but until the MDL is established and some progress is made, I’d stress the ‘approximate’ nature of these values.
That being said, some of these estimates are substantial, making these cases highly desirable.
The Sister Study
Causation evidence connecting hair relaxer use to uterine cancer (the “Sister Study”) is very strong, making these cases more valuable than others. After all, uterine cancer is a more severe injury, and the first estimates I’ve seen range from $300,000 to $1,750,000.
As to endometriosis, these cases will have lower values. The causation evidence is not nearly as strong as for uterine cancer, and the condition itself is less severe than uterine cancer. Lawsuits involving endometriosis as the primary injury could have a settlement payout value of around $110,000 to $300,000.
Uterine fibroid cases are also secondary in terms of settlement estimates, with at least one law firm claiming these cases will be worth $150,000 – $500,000.
Breast cancer cases remain uncertain. The causation evidence is there to support a causal link between hair relaxer use and increased breast cancer rates, but specificcausation is far more challenging. Depending on how the causation issue works out, breast cancer cases could have a settlement compensation range between $180,000 to $750,000.
These cases are bound to be hot as we enter 2023, but marketing for them may require a more delicate touch.
Due to the demographics of the plaintiffs, the plaintiff base, even if large and growing, may also be regional in nature.
Logically, there are going to be more of these cases in the South or the Northeast than in Utah. From what I’ve seen in this case, I believe we’ll see an MDL in February of 2023, and from there, it will all come down to the MDL judge.
Another new case we’re following closely is the Tylenol/Acetaminophen litigation, where the JPML just centralized an MDL claiming Costco, Walmart and other major retailers failed to appropriately warn that acetaminophen during pregnancy can cause autism and ADHD.
The panel has sent 64 cases to the newly created litigation as of this week, but that number is bound to grow exponentially now that we have an MDL (and attorney advertising).
The MDL is focused on the retailers rather than the manufacturers of the drug. The JPML found that all of the cases involved common questions of fact, including whether acetaminophen can cause autism spectrum disorder or ADHD, whether the sellers knew or should have known of the danger and whether they properly warned consumers.
The primary injuries from taking acetaminophen during pregnancy are autism and ADHD, but some law firms are pursuing others, including Asperger’s Syndrome, Kanner’s Syndrome, Childhood Disintegrative Disorder, and Pervasive Developmental Disorder.
Multiple studies have found an increased risk for the disorders in children whose mothers used the drug. Some studies linked the risk to exposure over time, but only with more substantial use of the drug.
In October 2019, a study published in JAMA Psychiatry found children with the highest levels of acetaminophen metabolites in their blood at birth had the highest risk of these disorders.
According to additional research published in the European Journal of Epidemiology (June 2021), children exposed to Tylenol during pregnancy were 19% more likely to have autism spectrum disorders and 21% more likely to have ADHD symptoms compared to non-exposed children.
Because of these potential acetaminophen pregnancy risks, researchers from Columbia University warned that doctors should re-evaluate the role of the pain medication for pregnant women after finding that prenatal exposure may lead to impaired neurodevelopment in the fetus, way back in 2020.
There have been links between baby food and autism for years, and for years, lawyers have thought the baby food cases would be easier to prove. But now, armed with these new scientific studies, it appears these acetaminophen cases will be far easier. In addition, women’s medical records are replete with instructions from doctors to take acetaminophen for aches and pains, making the connection even easier to prove.
On the other hand, there won’t be any prescription records for acetaminophen, so proving each plaintiff used the drug may be more difficult.
Not the Desired District
The JPML appointed District Judge Denise Cote to manage the growing litigation out of the Southern District of New York. The MDL will eventually work to streamline discovery and a hold a series of “bellwether” trials, but for now, the Court appears more focused on master complaints and short form complaints.
SDNY was not what either side wanted; defendants sought an MDL in New Jersey and plaintiffs lobbied for the Northern District of California or Minnesota. Ultimately, the panel passed on both suggestions. The most impactful decision Judge Cote has made in this case thus far is the use of a Short-Form Complaint.
As to scheduling, much remains uncertain as this is an infant when it comes to the MDL world. Plaintiffs have been asked to file two Master Complaints this month, one against the retailers and the others against Johnson & Johnson for users of brand-name Tylenol products.
The related Short Form Complaint will allow a plaintiff to adopt certain allegations from the Master complaint and present details about their family’s individual claim. This will reduce the delays and expenses associated with transferring the individual cases to the MDL, and back to the original court.
Judge Cote has scheduled a conference on January 6, 2023, where we expect to see a final decision on the Short Form Complaint.
Judge Cote also recently appointed lawyers to serve in various leadership roles in the MDL. In an order issued this week, the court appointed a total of 22 plaintiffs’ attorneys to leadership positions, including three co-lead counsel, one liaison counsel, a nine-member Plaintiffs Executive Committee (“PEC”) and 12 members of a Plaintiffs’ Steering Committee (“PSC”).
Given the widespread use of Tylenol and acetaminophen during pregnancy, it is ultimately expected that tens of thousands of claims may be brought over the coming weeks and months. This case is still a baby, so there is a lot we don’t know.
Settlements may be hard to come by, considering Johnson & Johnson’s recent history, but as to the other defendants, it will be an interesting thing to see.
Causation evidence is strong in this case, and unless Judge Cote ends up tossing out the scientific studies entirely, I think these are strong and legitimate cases.
This may end up being of the biggest cases in 2023, and we’ll be following it closely.