Plaintiffs’ claims in the hair relaxer multi-district litigation (“MDL”) will move forward, according to a decision by the Northern District of Illinois. The decision exemplifies the liberalities sometimes permitted under federal notice pleading, especially as applied to MDL master long-form complaints. Additionally, it shows federal courts will typically not inquire into scientific issues at the pleading stage. On the other hand, even in the MDL setting, federal courts may enforce stricter pleading standards for fraud claims and consider personal jurisdiction issues at the master-complaint stage.
In February 2023, the United States Judicial Panel consolidated individual and putative class action lawsuits pending in 19 districts that allege hair relaxer products cause cancer, endometriosis, and other injuries to the reproductive system. Over 8,200 cases were consolidated for pre-trial proceedings into the MDL in the United States District Court for the Northern District of Illinois.
Master Long-Form Complaint
In their master long-form complaint (“MLC”), plaintiffs allege defendants’ various hair relaxer products contain alleged endocrine-disrupting chemicals (“EDCs”), including phthalates and formaldehyde. These EDCs allegedly cause injuries to the reproductive system, including cancer. In the MLC, plaintiffs cite an October 2022 study by the National Institutes of Health (“NIH”) that found a statistically significant increase in uterine cancer in women who reported use of “straightening products,” with some evidence of a dose-dependent relationship. Plaintiffs also cite a 2021 study funded by the NIH and the National Institute on Minority Health Sciences, which found a statistically significant increase in ovarian cancer in women who reported “frequent” use of “straighteners/relaxers or pressing products.”
The MLC asserts 15 counts, including negligence/gross negligence, strict liability (design defect), strict liability (failure to warn), breach of warranty, fraudulent misrepresentation/concealment, statutory consumer protection and unfair or deceptive trade practices, and derivative claims.
Motion to Dismiss and Decision
Defendants filed a joint pre-answer motion to dismiss pursuant to Rule 12(b)(2) (personal jurisdiction) and Rule 12(b)(6) (failure to state a claim). The court granted in part and denied in part defendants’ joint motion. As to the branch of defendants’ motion seeking dismissal of plaintiffs’ negligence, design defect, and failure to warn claims pursuant to Rule 12(b)(6), the court held the MLC contains sufficient factual information. The court found unavailing defendants’ argument that plaintiffs failed to identify specific products, defects, and timeframes. The court indicated that such issues may be more appropriately litigated in response to the contemplated short-form complaints. The court disregarded defendants’ critiques of the 2021 and 2022 NIH studies as premature. The court similarly upheld the warranty claim pleading.
On the other hand, the court applied a stricter standard and dismissed the majority of plaintiffs’ fraud claims on the grounds that the allegations in the MLC failed to show that the concealment was more than “mere passive omission of facts” as opposed to an intentional omission.
The court also granted 12(b)(2) personal jurisdiction dismissal to an internationally incorporated company with only one United States office in New Jersey where it conducts limited business unrelated to hair relaxers. The court dismissed plaintiffs’ assertion that personal jurisdiction issues cannot be decided on an MDL-wide basis as unsupported by authority. While plaintiffs appealed to the United States Supreme Court’s recent decision in Mallory v. Norfolk S. Ry. Co. (Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 143 S. Ct. 2028 (2023), upholding Pennsylvania’s requirement that out-of-state corporations consent to general personal jurisdiction, they could point to no similar consent-to-jurisdiction in Illinois. Therefore, the court granted the motion to dismiss.
The decision means that plaintiffs’ master claims in the hair relaxer MDL can proceed. It is an example that federal notice pleading may allow largely boilerplate allegations to survive, especially in the MDL setting where subsequent short-form complaints, “fact sheets,” or similar are anticipated. Courts are also unlikely to consider challenges to the sufficiency of plaintiffs’ scientific support at the pleading stage. On the other hand, federal MDL courts may still enforce stricter fraud-pleading requirements and consider dismissal on personal jurisdiction grounds. Therefore, MDL defendants may still leverage Rule 12 motions to limit their exposure or even dispose of cases at this early stage.