A rash of lawsuits against Victoria's Secret alleging defectively manufactured underwear is continuing with eight new cases filed in the past two months. But in a setback for plaintiffs, a judicial panel has refused to consolidate all the litigation in Ohio.

The decision of the Judicial Panel on Multidistrict Litigation (JPML) may be the catalyst for yet more litigation. Plaintiffs' lawyers have said they were prepared to file more than 600 other suits once the seven-member panel ruled.

With the recent addition of six cases in Ohio and two in Florida, at least 17 have been filed in six states since January 2008. They are all variations on the theme that some “chemical, toxin, or allergen” in Victoria's Secret bras is causing women to break out in a severe rash.

“This is not a little clothing rash,” a toxicologist has said. “The extent and severity of it is just unbelievable. Many of them have scars that seem to be permanent.”

Plaintiffs' attorneys petitioned in April to have the litigation consolidated in the federal court of Columbus, Ohio, where Victoria's Secret is based. The consolidation “will prevent duplicative and potentially conflicting pretrial rulings, will reduce the costs of litigation and allow cases to proceed more efficiently to trial,” the petition said.

But the JPML last week rejected the petition, finding the common allegation of defective underwear in the various cases “may be overshadowed by factual issues unique to each action.”

“Victoria’s Secret sells a vast array of brands, styles, and colors of undergarments, and they are manufactured by various factories with components from various suppliers,” it said. “Therefore, it is likely that discovery will vary among the actions.”

One possible culprit for the rashes has been identified as the chemical formaldehyde. "When you heat the bras by putting it in the dryer, it releases the resins embedded in the fabric," the attorney for a plaintiff in Baton Rouge, La., said.

Limited Brands, the parent company of Victoria's Secret, says independent tests show the bras either have no formaldehyde or have only traces of the chemical that are too small to cause any skin problems.

The case of Macrida Patterson, a California woman who sued Victoria's Secret after a metallic piece allegedly flew off her thong and struck her in the eye, was settled in March. A suit in which a South Carolina woman alleged a Victoria's Secret bra malfunctioned, lacerating her breast, is set for trial in December.

By Matthew Heller
6/21/09