Chapman v. Walmart Inc.

Background

Cherise Chapman, individually and on behalf of her minor child D.C., sued Johnson & Johnson Consumer Inc. (JJCI) and a retailer. The plaintiffs alleged that Chapman’s use of JJCI’s Tylenol Extra Strength acetaminophen product during pregnancy caused D.C. to develop autism spectrum disorder and attention-deficit/hyperactivity disorder. The plaintiffs asserted Nevada-law claims, including strict liability for failure to warn, strict liability for design defect based on inadequate warnings and precautions, negligence, negligent misrepresentation, breach of implied warranty, and violations of Nevada consumer-protection laws.

The case was transferred to the Southern District of New York as part of multidistrict litigation involving claims that prenatal exposure to acetaminophen causes autism spectrum disorder and attention-deficit/hyperactivity disorder. JJCI previously moved to dismiss Chapman’s claims. The court denied JJCI’s motion based on federal preemption, which is the principle that federal law can sometimes displace state-law claims. The court also denied JJCI’s motion arguing that the plaintiffs had not adequately pleaded causation and knowledge under Rule 8 of the Federal Rules of Civil Procedure.

Motion for immediate appeal

JJCI moved under 28 U.S.C. § 1292(b) for certification of an interlocutory appeal. An interlocutory appeal is an appeal before the district court enters a final judgment. Certification requires a controlling legal question, a substantial ground for disagreement about that question, and a finding that immediate appellate review may materially advance the end of the litigation. The party seeking certification bears the burden of showing that all three requirements are met.

The retailer defendants supported JJCI’s motion. The plaintiffs opposed it. JJCI stated that it did not plan to seek a stay of the litigation if certification were granted.

Preemption ruling

The court denied certification of the earlier preemption ruling. That ruling held that the plaintiffs’ state-law claims were not preempted by Food and Drug Administration regulations governing acetaminophen labeling or by the federal prohibition on misbranding.

The court acknowledged that the preemption question was controlling because reversing the earlier ruling could terminate Chapman’s action and the multidistrict litigation. But the court found that JJCI had not shown a substantial ground for disagreement. The fact that the issue was novel did not, by itself, establish a substantial difference of opinion. The court also rejected JJCI’s reliance on the FDA’s interpretation of the relevant regulations and on Supreme Court preemption decisions involving prescription drugs, explaining that the earlier preemption ruling had already addressed those arguments and that the cited Supreme Court decisions were relevant.

Rule 8 ruling

The court also denied certification of the ruling concerning Rule 8 pleading requirements. The earlier ruling held that the plaintiffs adequately pleaded that prenatal acetaminophen exposure causes autism spectrum disorder and attention-deficit/hyperactivity disorder and that JJCI knew or should have known about that risk.

The court concluded that JJCI had not identified a qualifying controlling question of law. Determining whether the complaint plausibly pleaded causation and knowledge required a careful review of the scientific studies and allegations in the pleadings. The court treated that inquiry as specific to this litigation rather than as a general legal question about whether a complaint must cite scientific literature establishing causation.

The court also found that JJCI had not shown that an immediate appeal would materially advance the litigation. The parties were expected to brief expert-evidence challenges concerning general causation, and a hearing could occur in December. The court reasoned that the scientific evidence allowing the plaintiffs to proceed would likely be addressed soon, before an interlocutory appeal could be completed. Even a favorable appeal for JJCI might merely give the plaintiffs an opportunity to amend their complaint.

Disposition

Judge Denise Cote denied JJCI’s May 2, 2023 motion for certification of an interlocutory appeal from both the preemption ruling and the Rule 8 ruling.