The maker of Tylenol and a group of retailers and pharmacy operators asked a federal appeals court to revisit its decision to revive more than 500 private lawsuits over the painkiller’s alleged link to autism.
In a filing on Thursday, the defendants including Tylenol maker Kenvue told the 2nd U.S. Circuit Court of Appeals in Manhattan it should have deferred to a district judge’s decision to exclude expert testimony from three doctors who linked Tylenol’s use during pregnancy to autism and attention deficit hyperactivity disorder in children.
The defendants said that in reviving the lawsuits on July 13, the appeals court gave short shrift to a federal rule of evidence that makes district judges the “true gatekeepers” who decide whether evidence is reliable enough to be admitted at trial.
“Treating plaintiffs’ baseless theory as a jury question [is] exactly the sort of incorrect application of that rule,” the defendants said. “Lay juries are not scientists and thus lack the specialized knowledge to resolve complex and unsettled scientific questions.”
The plaintiffs include parents and guardians of children allegedly affected by Tylenol. Their lawyers did not immediately respond to requests for comment on Friday.
U.S. District Judge Denise Cote in Manhattan had excluded testimony from Harvard public health dean Andrea Baccarelli; Eric Hollander, a psychiatry professor at the Albert Einstein College of Medicine; and Brandon Pearson, a toxicologist formerly with Columbia University.
The defendants said if the appeals court doesn’t reverse its decision, it should say the experts’ opinions are not “categorically admissible” and instruct Cote to revisit the issue.
Albertsons, Costco, CVS, Dollar General, Dollar Tree, Family Dollar, Kroger, Safeway, 7-Eleven, Target, Walgreens and Walmart are among the defendants.
The appeals court rarely reconsiders its own decisions.
Doctors and medical societies consider acetaminophen, the active ingredient in Tylenol, the preferred means to treat pain and fever during pregnancy.
There is no firm scientific evidence of a link between Tylenol and autism or ADHD. President Donald Trump and top U.S. health officials suggested a link to autism last September.
Kenvue is based in Summit, New Jersey, and was spun off in 2023 by Johnson & Johnson.
For Kenvue and Johnson & Johnson Consumer: Elizabeth Prelogar at Cooley; Naomi Scotten, at Orrick, Herrington & Sutcliffe; and Jessica Brennan at Barnes & Thornburg
For Albertsons and Safeway: Amanda Groves at Winston Taylor
For Costco, CVS and Walgreens: Kristen Richer at Barnes & Thornburg
For Dollar General: Anne Gruner at Duane Morris
For Dollar Tree, Family Dollar and 7-Eleven: Lori Leskin at Arnold & Porter Kaye Scholer
For Kroger: Kristi Dean at Stone Dean
For Target: Alexandra Avvocato at Morrison & Foerster
For Walmart: Kaspar Stoffelmayr at Bartlit Beck
