U.S. District Judge Denise Cote in the Southern District of New York recently took significant action in the new Acetaminophen ASD/ADHD Multidistrict Litigation (MDL). She denied a defendant Walmart’s Motion to Dismiss on preemption grounds.

Judge Cote ruled that the motion was not applicable in this case since U.S. Food and Drug Administration (FDA) labeling laws did not prevent Walmart from adding warnings to its Equate brand of acetaminophen. Her ruling generated new optimism for plaintiffs in this growing MDL.

In September 2021, Nature Reviews Endocrinology published a Consensus Statement recognizing a potential link between prenatal use of acetaminophen and autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD).

This action prompted a handful of lawsuits from women who took acetaminophen while pregnant and whose children were later diagnosed with ASD or ADHD. The lawsuits blame manufacturers of acetaminophen for not warning of neurodevelopmental risks to infants exposed to the painkiller in utero.

In June 2022, a group of plaintiffs filed a motion asking the Judicial Panel on Multidistrict Litigation (JPML) to consolidate acetaminophen lawsuits into a new MDL. As awareness of acetaminophen risks increased, so did the lawsuits. By the summer of 2022, the number of acetaminophen autism/ADHD lawsuits in federal courts across the country had jumped significantly.

In October 2022, the JMPL granted the motion to consolidate the cases, officially establishing the Acetaminophen – ASD/ADHD MDL. The panel assigned the MDL to Judge Cote.

One month later, on Nov. 14, 2022, Judge Cote made one of her first actions in the MDL by denying Walmart’s motion to dismiss on preemption grounds. This marked a significant step forward for plaintiffs. By mid-December 2022, Judge Cote had set a series of deadlines for submitting proposed discovery plans and issued an order allowing new cases to be filed directly in the MDL rather than transferred from home districts.

Judge Cote also made appointments to the Plaintiffs’ Executive Committee for the MDL, which included Beasley Allen lawyer Roger Smith. He serves as lead counsel for the Science & Expert Committee.

By mid-January 2023, the number of cases pending in the Acetaminophen ASD/ADHD MDL jumped from just 18 in October 2022 to more than 100. That number is expected to increase substantially by year’s end as more people become aware of the link between this common painkiller and neurodevelopmental disorders, such as autism and ADHD.

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Sometimes mesothelioma cases seem cut and dry. You know from your client’s history of working in the shipbuilding industry that he is a victim of massive occupational asbestos exposure. Shipyards were one of the job sites with some of the highest levels of asbestos exposure. It’s common knowledge that the industry frequently used asbestos-containing products. Lazier or less experienced mesothelioma attorneys would likely assume that they should focus all their attention on holding the shipyard or the manufacturers of the products accountable for his injury.

But Beasley Allen’s mesothelioma lawyer Charlie Stern and his team dug deeper when faced with an asbestos exposure case. During a standard exposure assessment with their client, they discovered their client had performed several “do-it-yourself” (DIY) home repair projects through the years, such as removing old sealants and caulking from window and door frames.

Many people perform DIY home repairs and remodeling jobs. But older homes pose asbestos exposure risks from products installed decades earlier. By now, most people know that products such as shingles, wall and attic insulation, and drywall previously contained asbestos. But so did sealants, caulks, and adhesives used to seal cracks around windows, door frames, baseboards, and molding. These products pose the same mesothelioma risk. And they likely contributed to Stern’s client’s mesothelioma diagnosis.

Mesothelioma is a cumulative dose-response disease. That means every exposure matters to the eventual development of the disease. I explain it like cigarettes. We can’t identify a single cigarette that gives someone cancer. It is all the cigarettes over time that do it. The same goes with asbestos exposure.

Charlie Stern

Stern’s client was exposed to asbestos on the job at the shipyard. “But that doesn’t mean that the smaller, less consistent exposures from DIY repairs aren’t important, too,” Stern said. “By identifying these smaller exposures, Beasley Allen’s asbestos lawyers can identify all wrongdoers and hold them accountable under the law for their past wrongs.”

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On a summer day in 2019, our client Migdalia Roach strapped her 5-year-old daughter into the second-row left seat of their vehicle, recalling hearing the seatbelt “click.” The girl’s 10-year-old brother was seated next to her in the second-row right seat. As they traveled on a road in St. Croix, U.S. Virgin Islands, an oncoming vehicle veered into their lane, hitting them head-on.

Both children were known to remove their seatbelts or at least move the shoulder strap behind them. At the time of the crash, neither child was wearing a seatbelt, and during impact, both were ejected from the vehicle made by Fiat Chrysler Automobile US LLC (FCA). The girl was pinned under the car and died the next day due to blunt head trauma. Her brother suffered minor injuries.

Our clients argued that FCA’s actions directly contributed to their child’s death because the company refused to allow side curtain airbags to deploy in crashes like the one involving their family. Specifically, they allege that the standards FCA used to initiate the deployment of certain safety features, including airbags, went against the industry standard, failing to protect passengers during many real-world rollover events, including multi-roll events like the one our clients’ experienced.

The FCA vehicle involved in the accident uses a Slower Developing Rollover Events (SDRE) deployment strategy, relying on algorithm calibration. The vehicle’s Occupant Restraint Control Module (ORC) activates various safety devices, or sensors, based on external stimuli. The sensors send information to an electronic control unit or the brain of the restraint system. This unit activates safety restraint components such as airbags and seatbelt pretensioners (devices that tighten seatbelts) if external stimuli indicate an impending crash.

The decision to not deploy airbags in the SDRE events is a departure from standards used by all other vehicle makers. Many FCA vehicles across multiple lines have been subject to recall related to its SDRE deployment strategy and the lack of protection provided due to the programming criteria.

Our clients also alleged that the rear passenger windows lacked laminated safety glass and that the rear seats did not include seatbelt reminder systems to notify the driver if the rear occupants became unbelted. Although our client ensured the children were belted correctly before putting the vehicle in motion, it is believed that they unbuckled their safety belts after the vehicle began to move. Without any reminder system to notify the driver, it wasn’t easy to know if the children had removed their safety belts.

Chris Glover, the firm’s Atlanta office managing attorney, represented Ms. Roach and the family. He said, “I was humbled by the opportunity to represent this family. This case should remind automakers that they carry a significant responsibility to make prudent decisions that will impact an occupant’s safety. It truly is a matter of life and death.”

Chris settled with the defendants in the case on behalf of the family.

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