Walmart Requests Appeal of Decision to not Dismiss Tylenol Autism Lawsuits

Walmart Requests Appeal of Decision to not Dismiss Tylenol Autism Lawsuits

The ongoing Tylenol lawsuits filed because of the newfound connection between prenatal exposure to acetaminophen and autism have seen another development. Walmart is one of the high-profile defendants in the ongoing Tylenol litigation and they have recently made an attempt to appeal an earlier decision to not dismiss the lawsuits against them. 

Earlier this year, Walmart sought a dismissal of two lawsuits against them over autism plaintiffs claimed their children developed because of Walmart’s Equate brand over-the-counter pain reliever. Their dismissal was rejected which was seen as a significant win for plaintiffs although this new appeal is set to delay the process of suing Walmart for some time. 

Product liability lawsuits provide an opportunity for consumers to seek compensation for damages caused by defective products. The failure of over-the-counter Tylenol or acetaminophen retailers and manufacturers to warn of the potentially harmful effects caused by taking these drugs while pregnant can make them liable for the harm they cause. If your children have developed autism, ADHD, or other developmental disorders after prenatal acetaminophen exposure, then you may be eligible to file a Tylenol lawsuit and should consider contacting an experienced product liability lawyer.

There have been a large number of product liability lawsuits filed by parents of children who suffer from developmental disorders such as autism and ADHD because of prenatal exposure to acetaminophen. The vast number of lawsuits has necessitated the establishment of multidistrict litigation in order to consolidate the many similar claims. 

Tylenol Autism Multidistrict Litigation

Multidistrict litigation (MDL) is a measure taken when there are a large number of similar lawsuits that will put a significant burden on several federal district courts. This type of legal proceeding is generally in everyone’s best interests since it allows plaintiffs more convenience in sharing information during discovery and coordinating litigation, defendants can face one large coordinated series of claims rather than a torrent of individual claims, and the courts are not overloaded. 

The  Judicial Panel on Multidistrict Litigation (JPML) consolidated several Tylenol autism lawsuits in October 2022 under Judge Denise L. Cote in the Southern District of New York, creating MDL No. 3043 – IN RE: Acetaminophen – ASD/ADHD Products Liability Litigation.

Walmart Calls for Tylenol Lawsuit Dismissal Due to Federal Preemption

One of the initial strategies of Walmart’s legal defense was to get two of the early Tylenol lawsuits against them dismissed on the basis of federal preemption. The two plaintiffs, Robin Hatfield and Lisa Roberts, filed individual product liability lawsuits on June 7th against Walmart claiming that their children were born with Autism Spectrum Disorder because of prenatal exposure via Walmart’s acetaminophen pain reliever, Equate. 

In response, the retailer filed a motion to dismiss the lawsuits claiming that the claims were barred under the legal defense of federal preemption. This is a common tactic used by defendants in product liability cases such as this where the defendant argues that their product is not improperly labeled because they followed federal laws on the matter that take priority over any state requirements. 

Federal preemption works off of the Supremacy Clause of the Constitution and dictates that when federal and state laws conflict, federal laws override and preempt state laws. Since the Food and Drug Administration is a federal agency and tasked with regulating the labeling of drugs, discrepancies between their rules on labeling and state laws technically result in the preemption of FDA regulations. 

Walmart Calls for Appeal of Rejection of Their Motion for Dismissal

Fortunately for plaintiffs, the motion for dismissal was denied by the judge since they ruled that FDA regulations did not interfere with Walmart’s ability to provide warnings on Equate labels about the risks of taking it during pregnancy. On November 28th, Walmart immediately proceeded to file an appeal of this rejection for their motion to dismiss.

This appeal is not unprecedented but it does place a delay on the proceedings of the Tylenol MDL. The hundreds of lawsuits against Walmart will now have to wait even longer to continue with discovery and proceedings as the Court of Appeals makes their determinations. 

Tylenol Has Been Linked to an Increased Risk of Autism

The source of all of this controversy is the newly discovered link between Tylenol and autism risk uncovered by several studies. Tylenol is one of the most common over-the-counter analgesics and also one of the most common drugs taken during pregnancy. Tylenol is the brand name of acetaminophen or paracetamol and can be found in a number of drugs both prescription and over-the-counter. 

Tylenol has been thought safe to use during pregnancy for quite some time but a study conducted by researchers from John Hopkins University has shown that there is more risk than initially thought. 

After analyzing data from the Boston Birth Cohort, the study published in JAMA Psychiatry found that the samples they studied showed a correlation between acetaminophen concentration in umbilical cords they took the samples from and the development of autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD) rates among the participating children. 

The group that made up the highest third of exposure from the study had 3.6 times the risk of developing autism with the middle third having 2.14 times the risk. The middle and third groups that suffered the most acetaminophen exposure were found to have 2.26 and 2.86 times the risk of developing ADHD, respectively. 

The Damages Caused by Prenatal Tylenol Exposure

Autism spectrum disorder is a developmental disorder characterized by difficulties understanding social cues, repetitive behavior, fixated interests, and communication problems. ADHD is another developmental disorder that affects one’s ability to concentrate, control impulsive behavior, and includes high levels of hyperactivity. 

These developmental disorders may seem somewhat innocuous to some but they do create lifelong issues for those affected. Those diagnosed with ASD and ADHD have more difficulty in many aspects of life ranging from education to simple social interaction which can have a significant effect on quality of life. Damages claimed in the lawsuits against Tylenol include:

  • Medical expenses
  • Lost earning potential
  • Pain and suffering
  • Lost wages

Contact an Experienced Tylenol Lawsuit Lawyer

The recent Tylenol lawsuits seek to cover the damages caused by these developmental disorders that may have been completely avoided had the liable parties provided proper labeling of their product. If you have a child with autism, ADHD, or another developmental disorder that you believe was caused by prenatal exposure to acetaminophen then consider contacting a product liability attorney about your case. 


Matthew Dolman

Personal Injury Lawyer

This article was written and reviewed by Matthew Dolman. Matt has been a practicing civil trial, personal injury, products liability, and mass tort lawyer since 2004. He has represented over 11,000 injury victims and has served as lead counsel in over 1000 lawsuits. Matt is a lifetime member of the Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum for resolving individual cases in excess of $1 million and $2 million, respectively. He has also been selected by his colleagues as a Florida Superlawyer and as a member of Florida’s Legal Elite on multiple occasions. Further, Matt has been quoted in the media numerous times and is a sought-after speaker on a variety of legal issues and topics.

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