Multidistrict Litigation proceeding in federal
court in NY in which the plaintiffs have long been alleging that Tylenol
and other acetaminophen makers failed to warn pregnant mothers that the
drug may cause autism, ADHD, and other things.
The Trump Administration’s announcement this week has thrown major drama into that case. Highlighted article attached.
Quick recap. A bunch of folks sued the acetaminophen manufacturers in a wave
of “failure to warn” product-liability cases. These were not class
actions—too many differences in the individual facts—but they were
similar enough to be grouped together and sent to a single court to
efficiently handle various common pretrial matters before sending them
back for individual trials. This is called a “Multidistrict Litigation”
proceeding, or MDL. Among the pretrial matters at issue in this MDL
was accepting or rejecting expert witnesses. The plaintiffs offered
five experts to testify that acetaminophen is linked to autism, etc.
But the District Court rejected all five. One of the
proposed-but-rejected experts is Andrea Baccarelli, the same guy whose
research the White House relied on.
After the adverse rulings on experts, the plaintiffs appealed to the Second
Circuit. That appeal has been going awhile, and the briefing is already
closed. Oral argument is scheduled for the fall.
So what happens next? Here’s my guess: The plaintiffs will either seek
to supplement their Second Circuit briefing or they’ll file a “notice of
supplemental authority” citing the Administration’s new action (“I’ve
got information, man! New shit has come to light!”). If the Second
Circuit finds these new developments material (and I think they should,
but who knows), then they’ll probably remand the case to the District
Court with instructions to redo its expert analysis in light of the
Administration’s finding.