“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,” said Stephen Strauss of Bryan Cave in St. Louis, who served as lead counsel for Combe, makers of the Just for Men line of gray-reducing hair dyes.
Hoping to pursue a national class action, attorney John Driscoll of St. Louis filed suit against Combe in February 2016 on behalf of an East St. Louis man who was alleged to have suffered a severe reaction from using one of the company’s Just for Men products, including redness, irritation, sores, blisters, and burning.
Driscoll’s suit alleged negligent and wrongful conduct in design, development, manufacture, testing, packaging, promoting, marketing, distribution, and labeling, and claimed that Combe knew or should have known that its products created unnecessary risk of burns, scars, allergic reactions, and depigmentation. The suit sought compensatory and punitive damages, etc.
Combe counsel Strauss argued 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 failed to define what constitutes a personal injury.
“Is mild redness a personal injury?” Strauss asked. “Is irritation a personal injury?”
U.S. District Judge David Herndon managed the mass action with mediation for more than two years without a settlement being reached on roughly 500 claims.
“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 concluded after a recent status conference.
Herndon ordered Combe and the plaintiffs to pay the mediation fees of former Madison County judge Dan Stack and Baton Rouge attorney Randi Ellis.
That was a pointless two-year exercise – except for Herndon, Stack, and Ellis, who got paid in the failure to reach an agreement. The litigants, whoever they are, just got more gray hair.