MDL Judge for Tylenol Autism Spectrum Disorder Lawsuits Outlines Procedures To Coordinate Discovery in State Court Claims

The U.S. District Judge presiding over all Tylenol autism spectrum disorder and ADHD lawsuits filed throughout the federal court system has issued an order that outlines how state-court cases can coordinate discovery proceedings with the federal MDL, to make the pretrial process more efficient in the build up to early bellwether test trials.

Hundreds of families nationwide are currently pursuing lawsuits against manufacturers of name-brand Tylenol and store-brand acetaminophen equivalents sold by Walmart, CVS, Walgreens and other companies, each alleging that babies developed autism spectrum disorder or ADHD following exposure to the pain medication when taken by the mother during pregnancy, claiming that women were not adequately warned about the risks associated with using Tylenol during pregnancy.

Since each of the lawsuits raises nearly identical questions of fact and law about the adequacy of the Tylenol pregnancy warnings, a federal MDL (multidistrict litigation) was established late last year, centralizing all lawsuits over autism spectrum disorder and ADHD caused by Tylenol, Equate and other versions of acetaminophen before U.S. District Judge Denise Cote in the Southern District of New York, for coordinated discovery and a series of early “bellwether” trials that will help gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the claims.

While the number of claims continues to increase rapidly in the federal court system, and is expected to join some of the largest mass tort litigations in the U.S. in the coming months, Judge Cote has set an aggressive pretrial schedule early in the proceedings, and indicates the first phase of discovery will begin with the exchange of documents and information regarding the link between exposure to Tylenol and autism spectrum disorder or ADHD, before the parties begin discovery into sales and marketing issues in the litigation.

Tylenol Autism Spectrum Disorder Lawsuit Discovery Coordination Order

On January 27, Judge Cote issued an order (PDF) detailing how discovery proceedings can be coordinated with the federal MDL when the lawsuit was filed in a state court raising similar allegations that Tylenol caused autism spectrum disorder or ADHD.

“This Order seeks to enhance judicial efficiency, avoid undue burden on parties and third parties, and promote the just resolution of all cases pursuing (Tylenol) Claims,” Judge Cote states. “To that end, this Order sets out principles and procedures for the coordination of pre-trial proceedings, including the conduct of fact discovery, in the MDL and Related Actions.”

The order calls for the parties in the federal MDL to take the lead in conducting the discovery procedures, and that each state court can adopt Judge Cote’s order so that duplicate discovery efforts can be avoided.

Judge Cote indicates only state courts who have adopted the coordination order will receive discovery produced or conducted in the MDL. The cases filed in state courts will also have to execute the MDL Protective Order and ensure all plaintiffs’ counsel in the state cases have executed an agreement to participate in the coordinated discovery.

“The MDL shall be the lead case for discovery and pre-trial proceedings,” Judge Cote wrote. “Discovery in a Coordinated Action shall not delay or interfere with discovery in the MDL and shall not be more expedited than the fact and expert discovery schedule set in the MDL.”

The order also sets rules for coordinating written discovery, non-expert depositions, expert depositions, and discovery disputes.

February 2023 Tylenol Lawsuit Update

As part of the coordinated discovery and pretrial proceedings in the Tylenol autism lawsuits, it is expected that Judge Cote will establish a “bellwether” process, where the parties later select a small group claims involving children diagnosed with ADHD or autism spectrum disorders, which will go through case-specific discovery and a series of early trial dates.

To help manage the rapidly growing number of lawsuits, Judge Cote appointed a group of plaintiffs lawyers to serve in various leadership roles in November 2022, taking certain actions during the MDL proceedings that benefit all plaintiffs pursuing a claim. However, each family will still maintain their own Tylenol lawyer to establish that their child’s diagnosis of ADHD or autism was caused by exposure to specific acetaminophen products used during pregnancy.

While the outcome of any early bellwether trials will not have any binding impact on other families pursuing lawsuits, they will be closely watched and the average Tylenol lawsuit payouts will have a large impact on the amount of any ADHD or autism spectrum disorder settlements the drug makers may pay to to avoid each case being sent for trial in the future.