EAST ST. LOUIS – U.S. District Judge David Herndon managed a mass action over hair dye with mediation for more than two years and has retired without a settlement.
He left behind about 500 claims that Just for Men products damaged skin.
After a status conference on Jan. 4, he wrote, “Without blame to either side, that particular point at which any piece of litigation can be compromised because each side sacrifices some and gains some could not be reached here.”
Herndon ordered plaintiffs and dye maker Combe Incorporated to pay mediation fees of former Madison County judge Dan Stack and Randi Ellis of Baton Rouge, La.
Attorney John Driscoll of St. Louis started the litigation in February 2016, proposing a national class action against Combe Incorporated.
Driscoll claims Garnett Davis of East St. Louis suffered a severe reaction including but not limited to redness, irritation, sores, blisters, and burning.
The suit alleges negligent and wrongful conduct in design, development, manufacture, testing, packaging, promoting, marketing, distribution, and labeling, and claims that Combe knew or should have known that its products created unnecessary risk of burns, scars, allergic reactions, and depigmentation.
It also claims that Combe failed to warn that African Americans were at dramatically higher risk of an acute reaction than those of Caucasian descent.
The suit seeks compensatory and punitive damages, interest, penalties, and fees.
As Driscoll continued filing suits, Herndon ordered coordination for discovery and pretrial purposes.
He ordered automatic coordination of future cases.
He appointed Kristine Kraft of St. Louis as interim lead counsel for plaintiffs, and Stephen Strauss of Bryan Cave in St. Louis as lead counsel for Combe.
He wrote in his final order that, “With encouragement from the court, and substantially prior to the completion of discovery, the parties all agreed informally to a cessation of the discovery process to concentrate on mediation.”
Herndon appointed Stack in November 2016, and directed the parties to meet and confer at least once a month.
At some point, the parties executed a tolling agreement, suspending statutes of limitations for plaintiffs and future plaintiffs.
Herndon held status conferences every other month, and the docket otherwise remained quiet.
After a conference last June, he appointed Randi Ellis as mediation facilitator.
He bestowed power on her to do all things necessary, “including but not limited to fact gathering and documentary proof of plaintiffs who wish to be considered as part of this mass action.”
He encouraged her to “assist progress of this legal action by contacting potential plaintiffs who have not yet filed cases, who may have an interest in participating in this ongoing litigation.”
Herndon wrote that she should attempt to obtain signatures to the tolling agreement by those parties wishing to participate.
In July, Herndon set an Aug. 15 deadline for plaintiffs to conduct careful and thorough assessments of every case in their inventory, filed or unfiled.
He set an Aug. 31 deadline for plaintiffs to serve fact sheets for each case subject to the tolling agreement, ordering their counsel to upload all medical records, photographs, and other documentation to a litigation manager.
Driscoll moved for an extension on Aug. 30.
On Sept. 17, Herndon gave him a week to produce complete information for each individual on a spreadsheet Ellis would provide.
He set a Sept. 28 deadline for fact sheets, authorizations, responsive documents, and photographs.
After that, the docket went quiet until the Jan. 4 event.
“This hearing represented a culmination of a year plus of mediating intensely and frequently in order to attempt in every way to reach a compromise of this litigation,” Herndon wrote.
He wrote that he urged mediation because all parties were interested in pursuing compromise rather than engaging in costly discovery.
He also wrote that Stack and Ellis mediated insurance issues, saving the court a great deal of time and resources in avoiding declaratory action or intervention.
“There is much work to be accomplished, which is rare in cases with a lengthy time on file already,” he wrote.
Although Driscoll filed class allegations in the complaint for original plaintiff Garnett Davis, he hasn’t moved to certify a class.
Combe counsel Strauss moved to strike class allegations in 2017.
“It is apparent from the complaint that the class plaintiff purports to represent, made up of unidentifiable individuals who supposedly suffered highly individualized ‘personal injuries’ and whose claims will be governed by different state laws, could never be certified,” Strauss wrote.
He wrote that Davis couldn’t adequately represent absent class members who purchased different products and supposedly suffered different injuries, and that the proposed class was too vague to be ascertainable because it turned in part upon whether an individual suffered a personal injury.
“Is mild redness a personal injury?” he wrote. “Is irritation a personal injury?”