Tylenol Litigation: Getting Closer to the Daubert Motions

Judge Cote has largely ruled in plaintiffs’ favor to date on most of the defendants’ initial motions — e.g., denying Walmart’s preemption motion twice and J&J’s preemption motion, and various other motions to dismiss claims on other grounds. Most recently she denied J&J’s motion seeking her permission to file an immediate (interlocutory) appeal from her preemption ruling to the Second Circuit Court of Appeals.   
Plaintiffs’ leadership have filed amended master complaints against J&J and separately, against the various retail chain defendants who had manufactured and sold their own house brands of acetaminophen (i.e., Walmart, and other major retailers). These master complaints reflect the narrowing of plaintiffs’ causes of action in accordance with Judge Cote’s rulings.  

In further efforts to focus the litigation, parties have agreed to dismiss without prejudice complaints where Texas law clearly governs, since Cote previously dismissed certain claims against retailers under a Texas statutory “safe harbor” preemption clause for retailers. The parties asked Judge Cote to resolve the parties’ dispute over whether certain additional plaintiffs’ complaints are governed by Texas choice of law (and thus dismissible) or a different state’s law (and thus remaining viable).  

As previously written, she has also scheduled a “rocket docket” deadline, with special attention for Daubert motions to be filed on September 19^th and a Daubert hearing on the motions during the week of December 4^th. The parties will continue the process of exchanging initial and rebuttal expert reports in the weeks leading up to September 19, 2023. 

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On July 28, 2023, the Department of Justice asked Judge Cote for a time extension until September 15^th to respond to Cote’s unusual invitation to the federal government to weigh in on whether the label for acetaminophen should be changed to provide additional warnings of risk to pregnant women taking the drug. She likely granted the DOJ’s request to obtain a glimpse of how relevant regulatory agencies (especially the FDA) view this dispute in the context of their interpretation of public health and safety requirements.

Watch this space for links to the September 15^th and 19^th filings — to the extent they are public and not sealed.