Caryn Collazo et al vs. Wen By Chaz Dean, Inc., et al

Filing 127

ORDER DENYING DEFENDANTS MOTION TO REVISE BELLWETHER PLAINTIFF SELECTION PROTOCOL 121 by Judge Otis D. Wright, II (lc)

O

1
2
3
4
5
6
7

United States District Court
Central District of California

8
9
10
11

CARYN COLLAZO, ET AL.,
Plaintiff,

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case No. 2:15-CV-01974-ODW-AGR

v.
WEN BY CHAZ DEAN, INC., ET AL.,

ORDER DENYING DEFENDANT’S
MOTION TO REVISE
BELLWETHER PLAINTIFF
SELECTION PROTOCOL [121]

Defendants.
I.

INTRODUCTION

Plaintiffs filed their initial complaint on March 17, 2015, against defendants
WEN by Chaz Dean, Inc., Guthy-Renker Ltd., and Guthy-Renker Partners, Inc.
(Compl., ECF No. 1.) This complaint has been amended three times, and the case now
consists of 638 plaintiffs. (ECF Nos. 43, 67, 86.) On June 28, 2017, the Court issued
a Supplemental Scheduling Order, which stated that this matter is suitable for bellwether
trials, and instructed the parties to come to an agreement regarding the manner in which
plaintiffs would be chosen for the first bellwether trial. (ECF No. 80.)
On August 28, 2017, plaintiffs filed their Third Amended Complaint (“TAC”),
which added GAR Laboratories, Inc. (“GAR”) as a defendant. (ECF No. 86.) GAR
now moves to revise the Plaintiff Selection Protocol agreed to by Plaintiffs and the other
two defendants before GAR was added to the action. (ECF No. 121.) For the following

1

reasons, the Court DENIES GAR’s motion. 1
II.

2

BACKGROUND

3

WEN Cleansing Conditioner hair care products (“The Products”) were developed

4

by Los Angeles-based hair stylist, Chaz Dean, in collaboration with Guthy-Renker, a

5

large direct marketing company. (Compl. ¶ 26.) Plaintiffs allege that GAR was utilized

6

by Dean and Guthy-Renker to “manufacture, test and design the Products.” (TAC

7

¶ 652, ECF No. 86.) Plaintiffs first filed this action as a putative class action with six

8

plaintiffs. (Compl.) It has since grown to include 638 separate plaintiffs. (TAC.) In

9

their Second Amended Rule 26 Joint Report, the parties stipulated that they did not

10

intend to seek class certification, and that the cases are well-suited for bellwether trials. 2

11

(ECF No. 72.) Plaintiffs allege varying injuries related to the use of the Products

12

including hair loss and damage, scalp injury, and rash. (See generally, TAC.)

13

The Court agreed that these cases are suited for bellwether trials, and ordered the

14

parties to select 8-10 plaintiffs who are representative of all cases in the matter. (Supp.

15

Scheduling Order, ECF No. 80.) For trial purposes, the plaintiffs have been divided

16

into three categories based on severity of injury: severe (Category I), moderate

17

(Category II), and mild (Category III). (Mot. ECF No. 121.) Category I consists of 19

18

plaintiffs (roughly 3% of the total), Category II consists of 226 plaintiffs (roughly 35%),

19

and Category III consists of 393 (roughly 62%). (See Mot. 5.) Attorneys for the

20

plaintiffs, WEN, and Guthy-Renker reached an agreement on September 7, 2017, that

21

the first bellwether trial should consist of eight plaintiffs total; with each side choosing

22

one Category I plaintiff, one Category II plaintiff, and two category III plaintiffs.

23

(Declaration of Gabriel Padilla (“Padilla Decl.”) Ex. B, ECF No. 121.) This results in

24

a cohort of plaintiffs for the first trial of two Category I, two Category II, and four

25
26
27
28

Having carefully considered the papers filed in support of and in opposition to the instant Motion,
the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b);
C.D. Cal. L.R. 7-15.
2
The bellwether trial process involves trying a smaller number of cases representative of the group as
a whole, and then using those verdicts as a basis for settlement negotiations for the remaining cases.
1

2

1

Category III (hereinafter referred to as the 2-2-4 cohort). (See id.) GAR was added as

2

a party with the filing of the TAC on August 28, 2017, but was not served until

3

September 20, 2017. (Padilla Decl. 2–3.)

4

GAR filed this motion proposing a plaintiff selection plan different from the one

5

agreed to by the other parties, arguing that the initial plan is unfair to defendants because

6

Category I plaintiffs are overrepresented, and the 2-2-4 cohort is not representative of

7

the plaintiffs as a whole. (Mot.)
III.

8

LEGAL STANDARD

9

A bellwether trial is a trial of individual cases designed “to produce reliable

10

information about other mass tort cases.” MANUAL FOR COMPLEX LITIGATION (FOURTH)

11

§ 22.315 (2004). These trials can “precipitate and inform settlement negotiations . . .

12

by providing guidance on how similar claims may fare before subsequent juries.”

13

ELDON E. FALLON ET. AL., Bellwether Trials in Multidistrict Litigation, 82 TUL. L. REV.

14

2323, 2337 (2008). “Federal courts have the authority to conduct a ‘bellwether trial’

15

under Federal Rule of Civil Procedure 42(b).” In re Hydroxycut Mktg. & Sales Practice

16

Litig., 2012 U.S. Dist. LEXIS 93282, *50 (S. D. Cal. June 28, 2012). Rule 42(b) states:

17

“For convenience, to avoid prejudice, or to expedite and economize, the court may order

18

a separate trial of one or more separate issues, [or] claims . . . ." Fed. R. Civ. P. 42(b).

19

The Court has broad discretion in dictating the way in which a bellwether trial

20

should operate, and the way plaintiffs should be chosen for trial. See FALLON, 82 TUL.

21

L. REV. at 2337. “[E]ach transferee court that chooses to conduct its own bellwether

22

trials must consider all the unique factual and legal aspects specific to its litigation and

23

then fashion an appropriate, custom-made trial-selection formula.” Id. The method of

24

selecting test cases for trial is “limited only by the ingenuity of each . . . court and the

25

coordinating attorneys.” Id.

26

Bellwether trials can guide future settlement negotiations by showing how

27

similar claims may fare before juries. Id. “If a representative group of claimants are

28

tried to verdict, the results of such trials can be beneficial for litigants who desire to

3

1

settle such claims by providing information on the value of the cases as reflected by the

2

jury verdicts.” Id. (quoting In re Chevron U.S.A., Inc., 109 F.3d 1016, 1019 (5th Cir.

3

1997)). Representativeness is a “core element” of a bellwether trial. In re Chevron,

4

109 F.3d at 1019. “The more representative the test cases, the more reliable the

5

information about similar cases will be.” MANUAL FOR COMPLEX LITIGATION (FOURTH)

6

§ 22.315 (2004). When selecting which cases should be tried in a bellwether trial, the

7

process “should accurately reflect the individual categories of cases that comprises the

8

[action] in toto, illustrate the likelihood of success and measure of damages within each

9

respective category.” FALLON, 82 TUL. L. REV. at 2343.
IV.

10
11
12

DISCUSSION

GAR makes numerous arguments as to why it believes the plaintiff selection
protocol is inappropriate—the Court will address each in turn.

13

A. Representativeness

14

One of GAR’s chief arguments is that because the Category I plaintiffs are the

15

most severely injured, and are relatively few in number, they are not representative of

16

the group of plaintiffs as a whole. (Mot. 12.) However, plaintiffs from all categories

17

are alleging similar injuries, which vary in severity, from using the same products in the

18

same ways. (See generally, TAC.) Category I plaintiffs are not outliers—they merely

19

represent one end of the “range of cases” involved in this litigation. A bellwether trial

20

should include the entire “range of cases” in order to determine the “range of values the

21

cases may have . . . .” In re Hydroxycut, 2012 U.S. Dist. LEXIS 93282, at *51 (quoting

22

MANUAL FOR COMPLEX LITIGATION (FOURTH) § 22.315 (2004)).

23

GAR cites In re Boston Scientific Corp. Pelvic Repair Systems Products Liability

24

Litigation as an example of parties offering unrepresentative cases for a bellwether trial.

25

(Mot. Ex. K.) In that case, the court stressed that the bellwether cases chosen by the

26

parties were “not representative based on age and other factors or because they had

27

conditions that made the cases outliers (Alzheimer’s disease, vaginal obliteration,

28

participation in drug studies, active runner with infertility issues, etc.)” In re Boston

4

1

Scientific Corp. Pelvic Repair Sys. Prods. Liab. Litig. MDL No. 2326, Pretrial Order

2

No. 51 (S.D. W.Va, Aug. 7, 2013). These factors are much different than here where

3

the Court is presented with similar plaintiffs who exhibit varying degrees of severity in

4

their injuries, but whose injuries are generally congruent across the Categories. Plaintiff

5

is correct to point out that various severities of injury determine the range of damages,

6

but this is precisely what a bellwether trial attempts to discover. (Opposition to GAR’s

7

Motion (“Opp’n”), ECF No. 122); see also FALLON, 82 TUL. L. REV. at 2362 (stressing

8

the importance that all the “major variables” across cases should be represented in a

9

bellwether trial). Thus, it is important to include Category I plaintiffs in the first

10

bellwether trial so that the full range of cases is represented.

11

B. Separate Trials

12

The ultimate goal of a bellwether trial is for the court to “enhance and accelerate

13

both the [litigation] process itself and the global resolutions that often emerge from that

14

process.” FALLON, 82 TUL. L. REV. at 2325.

15

GAR’s proposed modification to the existing plaintiff selection process involves

16

three separate trials, one for each plaintiff class. (Mot. 12.) This is contrary to the goals

17

of efficiency that a bellwether trial is designed to achieve. In arguing for a multiple trial

18

plan, GAR again relies on authority that has significant differences from the present

19

litigation. GAR uses In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La.

20

2007) as an example of a court separating a litigation by “meaningful division.”

21

However, the court in Vioxx separated the cases by the type of alleged injury suffered

22

(heart attack, stroke, or other), not the severity of those injuries, and proceeded with

23

bellwether trials for a selection of plaintiffs who had suffered heart attacks. In re Vioxx

24

Prods. Liab. Litig., 501 F. Supp. 2d at 791. 3 Separating cases into different trials based

25
26
27
28

3

GAR also relies on In re Guidant Corp. Implantable Defibrillators Prods Liab. Litig., MDL No.
05-1708, 2008 U.S. Dist. LEXIS 17535, at *12 (D. Minn. Mar. 7, 2008) and In re Propulsid Prods.
Liab. Litig., MDL No. 1355, 2003 U.S. Dist. LEXIS 27522, at *3 (E.D. La. Mar. 13, 2003) in this
section of its motion. These cases both also make distinctions based on types of alleged injuries, not
severity of injury.

5

1

on different types of injury makes sense because different injuries will require different

2

showings of evidence to prove causation. However, in a case such as the present one,

3

differing severities of similar injuries will require the same evidence for causation, and

4

the differences in severity will be represented in the damages awarded. Thus, it is

5

proper to keep all three categories of plaintiffs in this case together in one trial.

6

C. Proportionality of Proposed Cohort

7

GAR argues that the proposed 2-2-4 cohort does not provide the “requisite

8

statistical reliability” to allow the parties to draw inferences about the remaining

9

plaintiffs from the bellwether trial cohort. (Mot. 19.) While there will be a greater

10

percentage of Category I plaintiffs at trial than there are in this action as a whole (25%

11

at trial vs. 3% of total plaintiffs), GAR’s proposed solution, to separate this action into

12

three separate trials, has already been rejected by the Court. The Court cannot in one

13

trial rectify this disproportionality without trying upwards of 30 plaintiffs (one Category

14

I plaintiff would constitute 3% of a 30 plaintiff cohort), and so many plaintiffs would

15

result in an unmanageable trial.

16

Furthermore, each case tried to verdict will be used to demonstrate a likely

17

outcome for other similar cases. The parties need not have 62% of the cases tried be

18

Category III plaintiffs in order to get a sense of how they will negotiate around Category

19

III issues. An eight-plaintiff trial is small enough that the jury will not become

20

confused, and will be able to focus on rendering fair verdicts for each of the eight

21

individual cases before them, which the parties can then extrapolate to the remaining

22

cases in each category. The possible benefit from the proportionality of a 30 plaintiff

23

cohort does not outweigh the extremely likely possibility of jury confusion from trying

24

to keep straight 30 different cases in the same litigation.

25

Moreover, if the Court were to reduce the number of Category I plaintiffs to one

26

(chosen at random), in an attempt to move the ratio in a more representative direction,

27

this could have a detrimental effect on the purpose of the bellwether trial. It is important

28

to try at least two cases from each category because in order for a bellwether trial to be

6

1

an effective guide for future negotiations, both sides need to agree on the reasonableness

2

of the results. Only one verdict on a Category I case would make it too easy for

3

whichever side does not agree with the result to cry “outlier” and refuse to negotiate

4

settlements for similar cases based on that verdict. Two cases will give the parties

5

another data point, each of which is believed by the plaintiffs and defendants to be their

6

strongest case, respectively, and can more effectively shape future negotiations.

7

Therefore, the 2-2-4 cohort initially proposed by the parties is the best way to proceed

8

with the bellwether trial.

9

D. GAR was Added After Negotiations Took Place

10

GAR also points out that it had not yet been added as a party in this litigation

11

when the selection process was negotiated, and claims that had been it been a party it

12

would not have agreed to this process. The Court did not impose the selection process

13

on the parties, but rather instructed the parties to come to an agreement regarding

14

selection. (Supp. Scheduling Order) This is exactly what they did, and after some

15

negotiation the parties reached an agreement regarding selection on September 7, 2017.

16

(Mot. Ex. K.) The selection process was therefore negotiated by defendants who are

17

similarly situated to GAR, and have similar interests. Furthermore, the process of

18

selecting plaintiffs from each category for trial was initially proposed on August 8,

19

2017, by counsel for the defendants. (Id.) The Court is unwilling to throw out the

20

agreement negotiated by three of the four parties involved in this litigation because a

21

defendant was added later, and therefore DENIES GAR’s Motion.

22

E. Power to Strike

23

GAR also proposes, as a component of the selection process, the parties select

24

more cases than will go to trial, with each side having the ability to strike a certain

25

number of cases from its opponent’s roster. (Mot. 15.) Plaintiffs are not opposed to

26

this request. (Opp’n 2–3.) To the extent the parties can agree on a proposed strike

27

procedure, they may file a stipulation and proposed order for the Court’s consideration.

28

7

V.

1
2
3

CONCLUSION

For the foregoing reasons, the Court DENIES defendant GAR’s Motion to
Revise the Bellwether Plaintiff Selection Protocol.

4
5

IT IS SO ORDERED.

6
7

July 12, 2018

8
9
10

____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

8