So learned some plaintiffs in In re: Hair Relaxer Marketing Sales Practices and Products Liability Litigation, MDL 3060, 2024 U.S. Dist. LEXIS 206474 (N.D. Ill. Nov. 13, 2024).  While not a drug or device case, the problem it exhibits is common to many mass torts.  Plaintiffs’ counsels’ solicitations produce a rush to file complaints often without the requisite pretrial investigation that Rule 11 requires.  The result is usually hundreds of junk claims clogging up MDLs, costing defendants’ time and money to review and challenge, and often impeding settlement discussions because everyone knows the inventory is falsely inflated.  Or it can lead to problems like this.

Plaintiffs in In re: Hair Relaxer, filed a Master Long Form Complaint on behalf of all Plaintiffs and individual plaintiffs filed Short Form Complaints identifying the particular products used and alleged injury suffered.  The primary alleged injuries are ovarian, uterine, or endometrial cancer, but the Short Form Complaint includes an option to add “other” injuries.  Due to bankruptcy proceedings involving one of the defendants, plaintiffs making claims against that defendant had to file a proof of claim in the bankruptcy proceeding by April 11, 2023 and file suit in the MDL by September 14, 2023.  Id. at *155-156.  Thousands of plaintiffs filed suit by the September deadline.  All these months later, plaintiffs filed a motion for leave to dismiss without prejudice the cases of over 400 plaintiffs who have no confirmed diagnosis of ovarian, uterine, or endometrial cancer.  Id. at *156-157. Defendants opposed the motion arguing that the dismissals should be with prejudice.

The Seventh Circuit has a set of factors it considers in deciding whether to grant a plaintiff’s request for dismissal without prejudice.  First, the extent of defendant’s effort and expense in preparing the case.  Because very little case-specific discovery had gone forward, the court found this factor weighed in plaintiffs’ favor.  Id. at *159-160.

The second factor looks at whether plaintiffs “excessively delayed and lacked diligence in prosecuting their actions.”  Id. at *160.  Here the scales tipped against plaintiffs.  Plaintiffs argued that the complaints were filed in “good faith” based either on a misunderstanding of their medical condition or due to the “rush to file” created by the bankruptcy proceedings that prevented plaintiffs from confirming “these details.”  Id. at *161.  The court criticized the proffered excuses for the improper filings.  Whether a plaintiff has cancer is not a mere “detail,” but a “basic element” of her claim.  Id.  The bankruptcy was not a plausible excuse where plaintiffs had five months between filing a proof of claim and filing their lawsuits—sufficient time “for counsel to diligently investigate claimed injuries.”  Id.  Further, even if some plaintiffs “did not do their homework” before the filing deadline, that is no reason “for Plaintiffs who filed after September 14, 2023, to misrepresent a cancer diagnosis.”  Id. at *162. 

Plaintiffs also argued that the Master Long Form Complaint, Short Form Complaint, and Plaintiff Fact Sheet only encompassed the three types of cancer, seeming to suggest this led to confusion.  But both forms of complaints “expressly include non-cancer injuries.”  Id. at *162. And the court had reviewed Plaintiff Fact Sheets asserting non-cancer injuries.  So, “confusion” was no excuse for the “Plaintiffs moving to dismiss their claims [to] have not fulfilled even the minimal discovery obligation to complete a PFS.”  Id. at *163. 

The third factor the court considered was the explanation offered by plaintiffs for needing a dismissal without prejudice.  Which was—to preserve the right to re-file if they develop cancer in the future.  The court was sympathetic to this issue, leading to the final ruling that:  (i) claims of moving plaintiffs who alleged cancer and filed suit before the September deadline would be dismissed without prejudice; (ii) claims of moving plaintiffs who alleged cancer and filed suit after the September deadline would be dismissed with prejudice; (iii) the non-cancerous claims of any plaintiff moving to dismiss would be dismissed with prejudice.  Further, the court placed certain restrictions on plaintiffs who seek to re-file in the future.  They must file within six months of the date of diagnosis, can only refiled in federal court, and must serve a completed Plaintiff Fact Sheet and all authorizations within 10 days of re-filing.  In other words, if you are going to refile, this time you better have your homework done in advance.