Appeals Court Overturns Shocking Dismissal Of National Tylenol Litigation
A panel of the Second Circuit Court of Appeals Monday rejected a lower court's dismissal of 550 cases alleging that Tylenol taken by pregnant women poses a risk of autism and ADHD to the child.
The decision by a panel of the U.S. Court of Appeals for the Second Circuit in New York City chronicles a massive usurpation of authority by a lower court judge, who in 2023 dismissed 550 cases filed by parents and children with Autism Spectrum Disorder (ASD) or Attention-Deficit/Hyperactivity Disorder (ADHD).
The lawsuits, consolidated into multi-district litigation, allege that Johnson & Johnson, which manufactured acetaminophen, and major retailers—from Dollar Tree stores to Walgreens— failed to warn pregnant women that using acetaminophen during pregnancy increased the risk of a child developing autism / ADHD. Johnson & Johnson has sold its consumer health division to Kenvue, based in Summit, NJ.
The three-judge panel found that U.S. District Court Judge Denise L. Cote erred in 2023 when she excluded the testimony of experts for the plaintiffs.
Cote ruled the plaintiffs’ experts’ conclusions did not “constitute reliable evidence of general causation” to support the theory that prenatal acetaminophen exposure causes neurodevelopmental disorders like autism/ ADHD.
The panel unanimously concluded that Cote greatly overstepped her authority.
The panel focused on the main expert for the plaintiffs, Andrea Baccarelli, a physician, epidemiologist, elected member of the National Academy of Medicine, and dean of the Harvard T.H. Chan School of Public Health. Baccarelli concluded that there is a causal relationship between prenatal exposure to acetaminophen and autism / ADHD.
Autism and ADHD cause children and adults to experience myriad life-long symptoms; some are completely disabling.
Moreover, diagnoses for autism and ADHD have exploded in the past decade. Prevalence of autism and developmental disabilities increased from one in 150 children in 2000 to one in 36 children in 2020. The annual cost to society is estimated at billions of dollars, not to mention the incalculable cost of personal suffering.
This is one of the most important lines of cases in the federal courts. The stakes are astronomical.
The panel noted that experts reach different conclusions based on the same set of contested facts. The panel said Cote “frequently overstepped” her “gatekeeping function” by, among other things:
