Litigation Update: Tylenol

January 11, 2024

Litigation Update: Tylenol

Litigation Update: Tylenol from by Attorney Jeff Keiser.


Happy New Year!

If you’re reading this, you survived 2023 and all we can say is – Congrats!  It’s been a challenging year for all of us, and all we really hope for is that everyone has a better and more profitable 2024. I, for one, am quite optimistic that we’ll see some real progress this year.

The Bad News

Let’s start with the bad news. The Tylenol autism cases are largely dead following Daubert challenges where Judge Cote agreed with defendants, especially as to causation.

The Order details varied reasons for the expert witnesses’ failures, but for the most part, the Court agreed with defendants alleging that plaintiff experts were cherry picking plaintiffs. Without this causation evidence, these cases simply have no scientific backing, at least in federal court.

Attorneys are considering refiling these cases in state courts to try and get around Judge Cote’s order, but that may not pan out in the long term. It may not be time to give up on these cases, but then again, it may also be time to cut losses and move on.

Paraquat Paused

Paraquat is heading into a critical period. There was a bellwether trial scheduled for October 2023, but the court paused it pending Daubert challenges.

No trial date has been announced yet, but we should get a Daubert order sometime in Q1 of 2024 and that will likely come with a trial date.

The most recent order on Paraquat appears to have gone the Plaintiffs way. The Court will require additional disclosures from all experts.

Not much in terms of the big picture, but the Court is dealing with expert witnesses and Daubert at the moment. Hopefully there will be some news soon.

Bard PowerPort Also on Hold

The Bard PowerPort cases are following a similar path, where the parties will nominate 48 potential plaintiffs for bellwether trials. From those 48 plaintiffs, the parties will select 15 of them to be Discovery Group 1.

This case looks even less likely to see a trial happen this year, but the case workup phase will be incredibly important. I think we’ll be talking about these cases well into 2025, but there is great value in them.

Camp Lejeune – Sooner Than Later

The biggest case of 2023 will likely remain the largest case of 2024.  Camp Lejeune has dominated the mass tort landscape recently, and because we’re not dealing with an MDL, these cases are likely to go to trial much faster.

From all reports, the elective option has not been the revolutionary new path to big money, and most claimants are rejecting it at this point.

There will also be a lot of motion practice with these cases, currently with the US Navy arguing that Camp Lejeune trials need to be bench trials. The selection process of the first trials will be contentious, but I have some hope that by the midpoint of the year, we’ll be on track to have the first trial by the end of the year.

I may be a bit of an optimist on this front, but the train has left the station, and these cases will go to trial sooner rather than later.

Big Chocolate On Trial?

Now that the holidays are finally over, how about a bit of levity? A Florida woman initiated a class action lawsuit against Hershey’s Chocolate, based on holiday themed products that did not end up looking like what the consumer thought they might look like based on packaging.

Reece’s Halloween themed peanut butter pumpkins, ghosts and bats appear to be at the center of the dispute. The plaintiff alleges that pictures show “artistic carvings” that give the products facial features on the packaging that are not present on the item.

The case is Kelly v Hershey Co, filed in the Middle District of Florida (No. 23-02977).

The lawyer filing the case has also filed lawsuits accusing Burger King and Taco Bell of (“Breaking News”) selling food that looks less enticing than advertised.

I don’t think this is a case that will change the world, but there is enough in the complaint to show a facially viable case.

JPML Spotlight

We have a JPML hearing on January 25, and that should start some new cases into the spotlight.

The biggest one I see becoming an MDL is the Ozempic litigation, where a plaintiff alleges severe health issues, including extreme vomiting and tooth loss, due to use of drugs produced by Novo Nordisk and Eli Lilly & Co.

I have a feeling that the big ad budgets will start airing soon, and this could be one of the bigger cases of the year.

We’ll be back next month with even more updates.

Craig H. Alinder, Vice President

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