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Albahae v. Olaplex Holdings, Inc., 2023 U.S. Dist. LEXIS 105361 (C.D. Cal. June 15, 2023), is not a drug/device case, but is a very good case severing under Fed. R. Civ. P. 21 an attempt to join 101 plaintiffs on claims involving their use of the defendant’s hair care products.  To be specific, there were 12 California plaintiffs plus 89 residents of 29 different states and five different countries. The plaintiffs claimed varying injuries from the hair care products, including hair loss, hair damage, itchiness, pain, fungus, dermatitis, loss of menstrual cycle, depression, headaches, and a variety of mental conditions.  That’s a long list of injuries, and it’s a big reason why the court severed the plaintiffs.  

The defendant moved to sever and dismiss the non-California plaintiffs under Rule 21 for three reasons: (1) their claims did not arise from the same transaction or occurrence, (2) the claims lacked a common question of fact or law; and (3) justice and fairness called for severance.   The court held that the first reason was enough and granted the motion.

As the Albahae court reasoned, “[t]he products used, when they were used, and injuries alleged vary substantially.”  There were nine different products used in varying combinations over six years. The Albahae decision explicitly followed similar severance orders in cases that did involve drugs and medical devices.  The plaintiffs in Albahae tried to distinguish away the other cases precisely because they involved medical products, but that was a distinction without a meaningful difference.  Thus, the Albahae court concluded that, with all the varying (there’s that word again) circumstances, uses of similar products and similar accompanying injuries were insufficient to establish same transaction or occurrence as required by the federal rules. 

Interestingly, the Albahae court went on to ask why it should stop at severing out the non-Californians: “the Court questions why it should not sever and dismiss all Plaintiffs except the first named Plaintiff.”  Accordingly, the court ordered the plaintiffs to show cause why that more complete severance should not happen.  

It looks like the Albahae case is about to get a crew cut.