Update on Tylenol Litigation: Initiation of Daubert Motions

Insightful Update on the Tylenol Litigation’s Daubert Hearing Proceedings  

The judicial examination concerning the admissibility of general causation expert testimony in the Tylenol litigation has formally begun. On September 19, 2023, Johnson & Johnson, along with co-defendants representing retail entities, submitted a trilogy of motions intent on precluding the testimonies of the plaintiff’s general causation experts. The defense has raised questions about the scientific reliability of claims that acetaminophen consumption during pregnancy: (1) increases the risk of autism spectrum disorders, (2) elevates the risk of Attention-Deficit/Hyperactivity Disorder (ADHD), and (3) is backed by biological plausibility. Conversely, the plaintiff’s legal team has presented a series of motions aiming to exclude all expert testimonies put forth by the defense regarding general causation.  

At this nascent stage of proceedings, it is challenging to predict the rulings on these motions. Opposition briefs and corresponding evidentiary materials will be filed by both parties on October 10, 2023. Subsequently, each will have an opportunity for rebuttal with reply briefs due on October 20th. A clearer understanding of the possible judicial directions will likely emerge only after the comprehensive briefing of each motion. 

Further insights into the methodology of the presiding Judge Cote may be ascertained from a public telephonic status conference scheduled for early October. During this session, Judge Cote will delineate the expectations and specifics of the Daubert hearings set to commence on December 4th. This discussion may involve directives on witness examination procedures, the sequencing of testimonies, and potential limitations on the duration of oral arguments. Additionally, substantive comments from Judge Cote on the current briefs may signal her areas of interest. 

It is also within the realm of possibility that Judge Cote will either request or mandate a set of questions for the counsel to address during the hearings in December, drawing parallels to the approach taken by Judge Rosenberg in the Zantac MDL Daubert proceedings of September 2022. Such an inquiry would likely underscore the issues Judge Cote deems pivotal in formulating her factual and legal conclusions. 

To date, there is no record of any Daubert ruling from Judge Cote in similar product liability or mass tort cases, nor has either party cited such precedent in their filings. It is anticipated that Judge Cote will render a considered verdict on the motions, with a determination expected by mid to late January 2024. 

Should the motions by the defendants be overruled, the litigation is expected to proceed to a subsequent phase, entailing: (1) the selection of bellwether plaintiffs and related discovery, (2) further Daubert motions and hearings focused on specific causation experts, and (3) the setting of bellwether trials, anticipated to be led by noted trial attorneys Mark Lanier and Mikal Watts, contingent upon the plaintiff’s causation experts prevailing against exclusion. 

We will continue to provide updates as further developments arise. 

  

Judicial Update 10.6.23: Judge Cote’s Status Conference on Daubert Hearing Procedures 

In a concise telephonic status conference lasting merely 11 minutes, Judge Cote conferred with counsel regarding the logistics for the forthcoming Daubert hearings scheduled for the week of December 4th. Judge Cote immediately remarked on the uncommon nature of live expert testimonies during such hearings, indicating her preference for engaging with these testimonies only if they clarify issues arising from their written reports, depositions, or referenced scientific studies, thereby assisting her understanding. 

Judge Cote assured that should she deem it necessary to solicit further explanations from specific experts during the proceedings, she will inform the parties accordingly. She emphasized efficiency in testimony, expressing her intention to conduct a thorough review of not only the briefs and reports but also the foundational studies referenced therein. 

Although Judge Cote refrained from imposing oral argument constraints during the call, she signaled her willingness to hear counsel’s arguments and indicated that more concrete plans for the hearing would be forthcoming. 

Upon querying the parties for their input on her preliminary views, the defendants’ counsel drew a parallel to a precedent where Judge Wolfson found live testimony beneficial after initial hesitation. Judge Cote responded by underscoring her current focus on the written briefs, indicating a readiness to request further expert testimony if necessary after the conclusion of the briefing process. 

With the defense’s proposal for comprehensive witness testimony and the plaintiff’s call for a more streamlined approach, Judge Cote’s stance could be interpreted as leaning towards the plaintiffs. However, a more accurate assessment of her position will likely be available after further communication post-October 20th. Insights may also be enhanced should Judge Cote decide to present the parties with specific questions or topics to be addressed during the December hearings. 

 

Legal Brief 10.20.23: Tylenol Case Progress 

Following the submission of the final briefs on October 20th concerning the parties 

’ Daubert motions, anticipation builds for further instructions from Judge Cote. Ahead of the December 4th Daubert hearing, there are several key considerations: the potential for Judge Cote to call upon specific expert witnesses, the allotment of time for each side’s oral arguments, the sequence of these arguments, and the possibility of receiving direct questions from the Judge. These forthcoming directives will offer significant insight into Judge Cote’s judicial approach and the trajectory of the hearings. 

Motion Filed To Consolidate Increase in Tylenol Autism/ADHD Lawsuits

Motion Filed To Consolidate Increase in Tylenol Autism/ADHD Lawsuits

Lawsuits from 20 parents covering the link between autism and the prenatal use of Tylenol or acetaminophen will likely consolidate into one Court. Plaintiffs claim their children developed autism or ADHD due to using the drug during pregnancy. The Tylenol autism lawsuits are against Johnson & Johnson — the company that first developed acetaminophen — and other brands that make generic versions of the product, such as Walmart, CVS, and Walgreens. All Plaintiffs feel that they were not provided warnings of the potential dangers of taking acetaminophen during pregnancy and are seeking compensation for a variety of relate issues.

Why Has a Motion Been Filed To Consolidate Tylenol Autism Lawsuits?

Bottle and carton box of tylenol pills

Recent research indicates that there is a 19% and 21% increase in the chance that a child may develop autism or ADHD, respectively, when prenatally exposed to acetaminophen. Because of this research, many experts and legal professionals anticipate the number of cases being filed against Johnson & Johnson and other companies that manufacture the drug will increase.

In an effort to provide a more prudent, efficient, and speedy pretrial process, consolidation of said cases is being sought in New York through the filing for an MDL where a judge could potentially hear many of the cases and establish rules for discovery, thresholds for evidence, and recoverable damages.

What Is the Risk of Autism or ADHD With Tylenol Use?

A National Institute of Health study states that the more exposure a pregnant mother has to Tylenol, the higher the risk there will be of the child developing autism or ADHD. Using umbilical cord blood from 996 babies, the study found that by the time the children reached about eight years old, 25.8% developed ADHD, 6.6% developed autism, and 4.2% were diagnosed with both. In this study, it was found that the longer a pregnant woman uses acetaminophen and the higher the dose, the more likely it is that the child will develop autism or ADHD.

This represents a significant increase in the occurrence of autism and ADHD in children over those who were not exposed to acetaminophen. These risks, combined with the failure of the manufacturers and distributors of acetaminophen to provide voluntary warnings even after they were aware of said risks may have unnecessarily exposed tens of thousands of children to an avoidable harm.

Who Can Qualify for a Tylenol Autism Lawsuit?

If a mother took acetaminophen during pregnancy or the postnatal period while nursing, and the child has developed autism or ADHD, she may qualify to pursue action against manufacturers of the drug. A child must be 17 years old or younger, and the mother has to have evidence that she took acetaminophen during pregnancy or while nursing.

This is possible through medical or pharmacy records, where a doctor may have instructed a pregnant patient to take Tylenol, or with receipts from purchasing one of hundreds of name and privately labeled acetaminophen products. This is especially true if mothers feel they weren’t properly informed of the risks associated with taking acetaminophen.

There have been no settlements yet for any Tylenol lawsuits. The studies linking Tylenol to autism and ADHD are also new, so it’s undetermined what the compensation might be for those seeking compensation for damages. Those who feel they qualify to join the Tylenol autism lawsuits should contact legal counsel to determine their eligibility.