EAST ST. LOUIS – Former U.S. District Judge David Herndon presided over 8,655 claims of injury from Just for Men hair dye for two and a half years, and now that he is retired, District Judge Staci Yandle must solve a jurisdictional puzzle.
Yandle has to decide whether plaintiffs can amend complaints they filed against dye maker Combe Inc. in 2016, alleging the product caused burns, scars, and discoloration.
Attorney John Driscoll of St. Louis moved to amend the complaints on Feb. 22, admitting they don’t meet a jurisdictional standard the U.S. Supreme Court adopted in 2017.
He wrote that it would be unfair for defendants to benefit from the Court’s decision and not permit plaintiffs to amend and update their personal jurisdiction allegations in light of the change the Court wrought in Bristol Myers Squibb v. Superior Court of California.
Driscoll and other lawyers filed suits for 3,709 plaintiffs in St. Clair County Circuit Court against Combe, a Delaware corporation in White Plains, N.Y. About six percent of the plaintiffs lived in Illinois.
Plaintiffs also sued two Combe subsidiaries in Illinois and two in other states.
Combe removed the suits to federal court, where Herndon coordinated them for discovery and other pretrial purposes.
Herndon appointed Driscoll, Roger Denton of St. Louis, and Richard Schulte of Dayton, Ohio, to an executive committee for plaintiffs. He also appointed Kristine Kraft of St. Louis as liaison counsel.
For a steering committee he appointed Joseph Osborne of Boca Raton, Fla., Jon Conlin of Birmingham, Ala., Angela Mason of Dothan, Ala., Jay Urban of Milwaukee, and Tad Thomas of Louisville, Ky.
At some point plaintiff lawyers reached a tolling agreement with Combe for 4,946 cases they didn’t file, for a total of 8,655.
Combe and two subsidiaries in other states moved to dismiss claims from plaintiffs in other states, arguing the court lacked personal jurisdiction.
All subsidiaries moved to dismiss for failure to state a valid cause of action.
All five defendants moved to strike class allegations.
In November 2016, Herndon suspended the proceedings in favor of mediation through former Madison County judge Daniel Stack.
He held six status conferences in 2017, issuing no orders until the last one.
On Dec. 13, he wrote that he held Combe’s motions in abeyance while the parties addressed other issues.
He wrote that he judicially termed the motions with the understanding that they could be reinstated.
“The court hereby confirms that the merits of these motions will not be affected in any way while they are termed,” Herndon wrote. “If they are reinstated at a later date, they then will be fully briefed and decided on the merits.”
He wrote that no issue of waiver was raised.
After a status conference last June, Herndon appointed Randi Ellis of Baton Rouge, La., as mediation facilitator.
He bestowed power on her “to do all things necessary.”
What Stack couldn’t accomplish alone, he and Ellis couldn’t accomplish together.
Herndon declared defeat after a hearing this Jan. 4, his final day on the job.
“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,” 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.”
He reinstated Combe’s motions and wrote, “There is much work to be accomplished, which is rare in cases with a lengthy time on file already.”
On Jan. 9, the court clerk assigned the cases to Yandle.
On Jan. 16, she asked for briefs on the status and posture of the action.
She set a hearing the following week.
On Jan. 17, she told them not to bother.
“In light of the information contained in the transcript of the status conference conducted by Judge Herndon on January 4, it is not necessary for the parties to submit a joint memorandum on January 22, as previously directed,” she wrote.
On Jan. 19, plaintiffs moved to amend complaints.
On Jan. 23, Yandle stayed briefing on the motion to dismiss subsidiaries and the motion to strike class allegations, pending a ruling on personal jurisdiction.
She suspended all discovery not related to personal jurisdiction.
On Feb. 6, plaintiff liaison counsel Kraft moved to conduct jurisdictional discovery and compel depositions.
She wrote that plaintiffs never had an opportunity to amend complaints because they focused on fact sheets and settlement negotiations.
“Plaintiffs’ counsel anticipated that a subsequent judge or defendants may unfairly try to punish plaintiffs for cooperating in the process established by Judge Herndon given the passage of three years,” Kraft wrote.
On that date, a connection between the action and the Supreme Court’s jurisdiction decision from 2017 appeared in the record for the first time.
In that decision, the Justices found a court may exercise personal jurisdiction over a company only if a claim arises out of a defendant’s contact with the forum.
In a brief opposing Kraft’s motion, Combe counsel Stephen Strauss of St. Louis wrote, “For a company to be subject to general personal jurisdiction, that company ordinarily has to be domiciled in the state.”
“In other words, in most instances, in order for a company to be subject to general personal jurisdiction, the company must either be incorporated in the state or have its principal place of business in the state,” Strauss wrote.
In the week of Feb.18, plaintiffs filed motions to amend complaints in the 22 cases underlying the coordination file.
Driscoll wrote in one of the motions that, “If plaintiffs had known that their good faith attempt to settle the litigation would ever preclude the opportunity to amend their complaint, they would never have agreed to this process.”
The court should not punish plaintiffs now by denying their motion to amend the complaints and the requested jurisdictional discovery for complying with the court’s settlement process,” Driscoll wrote.
On Jan. 22, Yandle stayed Kraft’s motion for jurisdictional discovery pending a ruling on amending the complaints.