We attended another webinar put on by the good people of Mass Torts Made Perfect and Levin Papantonio Rafferty, this time about the Hair Relaxer litigation.
This is one of the bigger cases we are working as we start 2023. While there isn’t an MDL as of today, the expectation is that one will be created shortly after oral arguments on centralization in late January.
Due to the similarly situated plaintiffs from across the country, MDL treatment makes sense, and we’re quite sure the JPML will agree.
We’d like to take just a moment at the outset and say a big thanks to the people putting on these seminars. They are informative and helpful for every plaintiff attorney, including staff.
Deep Pockets
The defendants have deep pockets, at least some of them. L’Oreal and Revlon are the big ones, but there are others (Soft Sheen, Godrej Consumer Products, Strength of Nature, Dabur USA, and Namaste Labs).
It’s worth noting that Revlon is currently going through Chapter 13 Bankruptcy, so that may prevent or delay some aspects of the case.
Brand loyalty is not especially strong with these products, as they are used regularly and often. Typically, price is the most important factor. So, locating the bestdefendants may be one of the biggest challenges in prepping a case.
Demographic Concerns
This case is especially delicate due to the racial makeup of the plaintiff class, and plaintiff attorneys would be wise to be careful in their marketing.
The plaintiffs in this litigation will be almost exclusively African American. In fact, the very nature of African American hair and its importance to the culture makes this case especially sensitive.
Hair has always had a very important role in African cultures, and that importance continued, maybe even increased, with the slave trade and African American life.
One recommendation we make is to utilize attorneys in your offices that can connect with this demographic.
In a competitive marketplace, this may be your most important decision. After that, however, intake will also be incredibly important.
Intake
Your first question should be about the caller’s background. If they are African American, Latina, or Indian, they potentially fall in line with the rest of the intake requirements. Your marketing should target these demographics.
Use of these products tends to become part of a regular routine, going on for yearsor longer.
The chemicals in the product seeps into the scalp and enters the bloodstream, affecting the endocrine system. The cancers associated with these products are all Estrogen based cancers.
A good plaintiff will have used these products frequently, and this may also be a key question on intake. At a minimum, a plaintiff should be able to prove that they used one of the products in question at least four times in a year.
Long-term is the better, and the best potential clients will be able to prove use over at least 2-5 years of continual use. More is better for the litigation, but a minimum of four times in a year needs to be proven.
When talking to a potential client, try to obtain the specific product used, the datesof use, and the location of purchase.
If no direct evidence is available, consider prepping a strong affidavit based on the potential client’s specific information, maybe even including an affidavit from a hairdresser.
Other evidence that may help include photos of the client’s hair in a straightened state, product boxes in the background, and anything that can support use.
A plaintiff’s case becomes weaker if it has been more than 20 years since the last product use.
Diagnosis
As is the case with most of these types of cases, a strong diagnosis may also be a gatekeeper to the MDL.
As of writing, a plaintiff will need to show a diagnosis of
- Uterine/endometrial cancer
- Ovarian cancer
- Uterine fibroids.
A diagnosis more than 10 years old weakens the case, so make sure that you get a new diagnosis if your client comes in with an especially old diagnosis.
One other concern is when a potential plaintiff has ever tested positive for a BRCAgene mutation test.
But beyond that, a strong diagnosis should guide a plaintiff lawyer how to proceed.
Important Case for 2023
2023 is going to be a big year for this case, and even though it has not been centralized as an MDL yet, it almost certainly will be.
Thanks again to the people at MPTP and Levin Papantonio Rafferty for hosting the webinar. These are great sources of information, and we can’t recommend them highly enough.