Walgreens is among the many defendants in lawsuits alleging Tylenol can cause autism
NEW YORK – Defendants now exposed to claims that Tylenol causes autism will be asking the entire roster of judges in the U.S. Court of Appeals for the Second Circuit to change that.
A district judge had deemed expert testimony linking prenatal use of the product with autism and ADHD, but a three-judge panel of the Second Circuit this week allowed some of those opinions to be presented in court, reopening hundreds of claims amid action by the federal government that seeks to prove the same connection.
Kenvue, pharmacies and retail chains on Wednesday asked for an extra 45 days to prepare a petition for rehearing. There are 13 judges on the Second Circuit – one appointed by Barack Obama, six appointed by Joe Biden and six appointed by Donald Trump.
Trump’s Health and Human Services secretary Robert F. Kennedy, Jr., a former plaintiffs lawyer, has provided valuable support to his former colleagues’ litigation efforts, including issuing reports describing possible associations between Tylenol and autism, issuing public health warnings to pregnant women and calling for retraction of a prominent medical journal article finding no such link. The FDA is currently investigating the supposed link.
Guido Calabresi, a Bill Clinton-appointee, authored the Second Circuit’s Monday opinion, and even though he is a senior judge, he can take part in any rehearing. The same would be true for Gerald Lynch, an Obama-appointed senior judge who was on the three-judge panel with circuit judge Eunice Lee, a Biden pick.
Those judges ruled trial judge Denise Cote had overstepped her authority by deciding that three experts, including the dean of the Harvard School of Public Health, had misinterpreted epidemiological studies and engaged in cherry-picking to eliminate evidence that didn’t support their conclusions.
Judge Cote seemingly halted federal multidistrict litigation in 2023 when she excluded opinions by Dr. Andrea Baccarelli, the dean of Harvard’s T.H. Chan School of Public Health who was quoted in a press release issued by the Trump White House when it announced plans to link Tylenol to autism, and four other experts who testified that Tylenol and other acetaminophen painkillers can cause autism and ADHD in unborn children.
Dr. Baccarelli relied upon a method known as Bradford Hill analysis, which weighs multiple factors including biological plausibility and dose and duration of exposure to decide whether a statistical correlation reflects actual causation.
After examining Dr. Baccarelli and other experts’ opinions, Judge Cote concluded “their analyses have not served to enlighten but to obfuscate the weakness of the evidence on which they purport to rely and the contradictions in the research.”
The ruling was a blow to many high-profile plaintiff firms. Leading the case were Ashley Keller of Keller Postman, Mikal Watts of Watts Guerra and Mark Lanier of The Lanier Law Firm.
But Judge Calabresi chastised Cote for inserting her own opinions into a process designed only to make sure expert witnesses adhere to generally accepted scientific methods.
“The district court erred in deeming their testimonies unreliable and therefore not worthy of consideration by a jury,” Judge Calabresi wrote in the July 13 ruling.
Among the defendants are Walgreens, Costco, CVS, Walmart, Rite Aid and Kroger. Kenvue’s appellate counsel in the case has since retired, and the company says it needs the extension to get its new lawyers up to speed.
