Chapman v. Walmart Inc.

Background

This opinion concerns two actions in a multidistrict products-liability litigation involving acetaminophen products. Makesha Anderson and Cherise Chapman sued JJCI and retailer defendants, alleging that they used Tylenol while pregnant and that their children developed autism spectrum disorder and attention-deficit/hyperactivity disorder. They alleged that the defendants violated California and Nevada law by failing to warn about risks associated with prenatal acetaminophen exposure.

The opinion addresses JJCI’s motion to dismiss negligent-misrepresentation and strict-liability-misrepresentation claims. It does not address all claims in the litigation. A separate opinion addressed causation and JJCI’s knowledge, and other opinions addressed claims against retailer defendants.

Legal standards

The court applied Federal Rule of Civil Procedure 8, which requires a complaint to contain enough factual allegations to state a legally plausible claim. The court did not apply the more demanding fraud-pleading standard because the claims, as presented, were not based on fraud.

The court applied California law to the Anderson Action and Nevada law to the Chapman Action. Under California law, both negligent misrepresentation and strict-liability misrepresentation require an affirmative misrepresentation—an actual statement or assertion—not merely a failure to disclose information. Nevada recognizes negligent misrepresentation based on an omission, meaning the failure to disclose a material fact when there is a duty to disclose it. Nevada does not recognize a strict-liability-misrepresentation claim.

Anderson Action

Anderson argued that two allegations amounted to affirmative misrepresentations: a 2013 statement by Johnson & Johnson, Inc., JJCI’s parent company, that Tylenol had an “exceptional safety profile,” and an advertisement showing a pregnant woman. The court held that the general safety statement did not reasonably assert that acetaminophen presented no risks during pregnancy. It also held that the image of a pregnant woman was not an affirmative misrepresentation.

The court therefore dismissed Anderson’s California negligent-misrepresentation and strict-liability-misrepresentation claims against JJCI for failure to plead an affirmative misrepresentation.

Chapman Action

Chapman’s negligent-misrepresentation claim alleged that JJCI omitted material information by failing to warn on Tylenol labels about the risks of prenatal acetaminophen exposure and the alleged development of autism spectrum disorder and attention-deficit/hyperactivity disorder. The court held that the short-form complaint adequately pleaded an omission and gave JJCI fair notice of the theory.

The court rejected JJCI’s arguments that Chapman had to identify the exact warning that should have appeared on the label or allege that she read the label before purchasing Tylenol. The court also rejected JJCI’s argument concerning the public availability of the scientific studies, explaining that negligent misrepresentation does not require an intent to defraud.

The opinion notes that Chapman also appeared to plead a strict-liability-misrepresentation claim under California law based on an alleged California purchase. That claim was dismissed because California requires an affirmative misrepresentation.

Disposition

The court granted in part and denied in part JJCI’s motion to dismiss the negligent- and strict-liability-misrepresentation claims. It dismissed the California misrepresentation claims in the Anderson Action and denied the motion to dismiss Chapman’s Nevada negligent-misrepresentation claim.