In re: Acetaminophen - ASD-ADHD Products Liability Litigation

Filing 64

OPINION AND ORDER re: (422 in 1:22-md-03043). The Plaintiffs' TCPA claim is dismissed. The motion to dismiss the remaining claims on the grounds that they are subsumed within the TPLA is denied. (Signed by Judge Denise L. Cote on 4/21/23) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
IN RE: Acetaminophen – ASD-ADHD
:
Products Liability Litigation
:
:
This Document Relates To:
:
Hatfield, et al., v. Walmart Inc.,
:
22cv9011
:
:
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APPEARANCES:
For plaintiffs:
Keller Postman LLC
Ashley C. Keller
150 N. Riverside Plaza, Ste. 4100
Chicago, IL 60606
Watts Guerra LLC
Mikal C. Watts
Millennium Park Plaza RFO
Ste. 410, C112
Guaynabo, Puerto Rico 00966
The Lanier Law Firm
W. Mark Lanier
Tower 56
126 East 56th St., 6th Floor
New York, NY 10022
For defendant Walmart Inc.:
King & Spalding LLP
Kristen Renee Fournier
1185 Ave. of the Americas, 34th Floor
New York, NY 10036
King & Spalding LLP
Donald F. Zimmer, Jr.
Ethan P. Davis
50 California St., Ste. 3300
San Francisco, CA 94111
King & Spalding LLP

22md3043 (DLC)
22mc3043 (DLC)
22cv9011 (DLC)
OPINION AND
ORDER

Livia M. Kiser
110 N. Wacker Dr., Ste. 3800
Chicago, IL 60606
King & Spalding LLP
Jeffrey S. Bucholtz
1700 Pennsylvania Ave. N.W., Ste. 900
Washington, DC 20006
For 22md3043 defendant Sam’s West, Inc.:
King & Spalding LLP
Kristen Renee Fournier
1185 Ave. of the Americas, 34th Floor
New York, NY 10036
King & Spalding LLP
Donald F. Zimmer, Jr.
50 California St., Ste. 3300
San Francisco, CA 94111
King & Spalding LLP
Austin Evans
500 W. 2nd St., Ste. 1800
Austin, TX 78701
For 22md3043 defendant The Kroger Co.:
Stone | Dean LLP
Gregory E. Stone
Joseph A. Lara
21052 Oxnard St.
Woodland Hills, CA 91367
For 22md3043 defendant Rite Aid Corporation:
Smith, Sovik, Kendrick & Sugnet, P.C.
David M. Katz
Karen G. Felter
250 S. Clinton St., Ste. 600
Syracuse, NY 13202
For 22md3043 defendants CVS Pharmacy, Inc., Costco Wholesale
Corp., and Walgreen Co.:
Barnes & Thornburg LLP
Kristen L. Richer
2029 Century Park E., Ste. 300
Los Angeles, CA 90067
2

Barnes & Thornburg LLP
Sandra M. Ko
1717 Pennsylvania Ave. N.W., Ste. 500
Washington, DC 20006
Barnes & Thornburg LLP
Nadine S. Kohane
390 Madison Ave., 12th Floor
New York, NY 10017
For 22md3043 defendants 7-Eleven, Inc., Dollar Tree Stores,
Inc., and Family Dollar Stores, LLC:
Lori B. Leskin
Mitchel Russell Stern
250 W. 55th St.
New York, NY 10019
For 22md3043 defendant Target Corporation:
Morrison & Foerster LLP
Julie Y. Park
12531 High Bluff Dr., Ste. 100
San Diego, CA 92130
For 22md3043 defendants Safeway Inc. and Dolgencorp, LLC:
Winston & Strawn LLP
Amanda L. Groves
Gregory A. Ellis
333 S. Grand Ave., 38th Floor
Los Angeles, CA 90071
DENISE COTE, District Judge:
Robin Hatfield, individually and on behalf of her minor
child C.H. (together, “Plaintiffs”), brings this action against
Walmart Inc. (“Walmart”).

The case is one of several in this

multidistrict litigation (“MDL”) in which plaintiffs allege that
in utero exposure to acetaminophen causes autism spectrum
disorder (“ASD”) and attention-deficit/hyperactivity disorder
(“ADHD”) in children.

This Opinion addresses two of the grounds
3

contained within Walmart’s motion to dismiss: (1) that the
Plaintiffs’ consumer protection claim brought under Tennessee’s
Consumer Protection Act, §§ 47-18-104 et seq. (“TCPA”), is
expressly preempted by federal law, and (2) that all of
Plaintiffs’ common law claims are subsumed within the Tennessee
Products Liability Act, Tenn. Code Ann. §§ 29-28-101 to -108
(“TPLA”) and must be dismissed.

For the following reasons, the

motion to dismiss is granted in part.

The TCPA claim is

dismissed as preempted by federal law.
Background
The following facts are drawn from the Plaintiffs’ short
form complaint (“SFC”) and the master complaint in this MDL that
the SFC incorporates by reference.
for the purposes of this motion.

The facts are taken as true
The Court assumes familiarity

with its prior Opinions in this MDL addressing motions to
dismiss on the ground of preemption and summarizes only those
facts relevant to this Opinion.

In re Acetaminophen – ASD-ADHD

Prods. Liab. Litig., No. 22md3043 (DLC), (S.D.N.Y. Apr. 20,
2023) (“April Opinion”); In re Acetaminophen – ASD-ADHD Prods.
Liab. Litig., No. 22md3043 (DLC), 2022 WL 17348351 (S.D.N.Y.
Nov. 14, 2022) (“November Opinion”).
Hatfield and her child, C.H., both reside in Tennessee.
C.H. has ASD.

Walmart is a Delaware corporation with its
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principal place of business in Arkansas.

Walmart sells several

store-branded acetaminophen products, which are collectively
referred to as “Equate Acetaminophen.”
From October 2011 to June 2012, while pregnant, Hatfield
consumed Equate Acetaminophen, which she had purchased in
Sweetwater, Tennessee.

Several studies have shown an

association between prenatal exposure to acetaminophen and ASD
and ADHD in children.

Nonetheless, the label for Equate

Acetaminophen did not mention the risk that a child could
develop ASD or ADHD if the child’s mother consumed acetaminophen
while pregnant.

Hatfield asserts that, had she been warned of

this risk, she would have taken less Equate Acetaminophen or
would not have taken it at all.
On June 7, 2022, the Plaintiffs filed this action in the
U.S. District Court for the Western District of Arkansas.

On

October 5, the Judicial Panel on Multidistrict Litigation
consolidated this action with others asserting claims that
prenatal exposure to acetaminophen causes ASD and ADHD in
children and transferred the cases to this Court under 28 U.S.C.
§ 1407.

On November 14, motions to dismiss this action and

another action within the MDL on preemption grounds were denied.
At the November 17 initial pretrial conference, a schedule
was set for the filing of two master complaints: one naming
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manufacturer Johnson & Johnson Consumer Inc. (“JJCI”) and
another naming Walmart, along with several other retailers (the
“Retailer Defendants”).

On December 16, the MDL plaintiffs

filed the master complaint against the Retailer Defendants.
On January 24, 2023, Hatfield filed her SFC.

The SFC

asserts claims against Walmart under Tennessee law for strict
liability for failure to warn, strict liability for design
defect due to inadequate warnings and precautions, negligence,
negligent misrepresentation, strict liability misrepresentation,
violation of the TCPA, breach of implied warranty, and liability
as apparent manufacturer.
On February 10, the Retailer Defendants moved to dismiss
all of the SFCs filed against them, including Hatfield’s. 1

The

motion became fully submitted on March 17.

The Court has advised counsel that motions to dismiss should be
brought against particular complaints and not against the master
complaint. The master complaint is not the operative pleading;
it is an administrative document. See Bell v. Publix Super
Markets, Inc., 982 F.3d 468, 490 (7th Cir. 2020). The Retailer
Defendants’ motion has been styled as brought against all
complaints filed in the MDL. The Court, therefore, has chosen
the SFC for this Opinion because it asserts claims under
Tennessee law, and, as relevant to the specific arguments
addressed in this Opinion, Tennessee law appears representative
of several states’ laws.
1

6

Discussion
I.

Choice of Law
A multidistrict litigation transferee court “applies the

substantive state law, including choice-of-law rules, of the
jurisdiction in which the action was filed.”

Desiano v. Warner-

Lambert & Co., 467 F.3d 85, 91 (2d Cir. 2006) (citation
omitted).

As explained in the November 14, 2022 Opinion

addressing a motion to dismiss the Hatfield action on the ground
of preemption, the choice of law for the claims asserted by
Hatfield is between the law of Tennessee, her residence, and
Arkansas, the state in which she filed the action.
Opinion, 2022 WL 17348351, at *2.

November

Both states have consumer

protection statutes and product liability statutes that are
substantially the same in the relevant respects.
The defendant contends that Tennessee law applies, and the
Plaintiffs do not dispute that assertion.

This accords with the

application of the Arkansas lex loci delicti doctrine.

Id. at

*1; Ganey v. Kawasaki Motors Corp., 234 S.W.3d 838, 846 (Ark.
2006), overruled on other grounds by Lawson v. Simmons Sporting
Goods, 569 S.W.3d 865 (Ark. 2019).

While pregnant, Robin

Hatfield purchased Walmart’s acetaminophen product in Tennessee,
and both Hatfield and C.H. reside in Tennessee.

None of the

other factors applied in Arkansas’ choice-of-law analysis
7

suggests that Arkansas law should apply instead.

Thus, this

Opinion applies Tennessee law.
II.

Express Preemption
The defendant seeks to dismiss the Plaintiffs’ TCPA claim

on the ground that the claim is expressly preempted by federal
law. 2

The motion to dismiss this claim is granted.
“The Supremacy Clause establishes that federal law ‘shall

be the supreme Law of the Land . . . any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding.’”

PLIVA, Inc. v. Mensing, 564 U.S. 604, 617

(2011) (quoting U.S. Const., art. VI, cl. 2).

The doctrine of

federal preemption provides that, under the Supremacy Clause,
“state and local laws that conflict with federal law are without
effect.”

Grand River Enters. Six Nations, Ltd. v. Boughton, 988

F.3d 114, 125 (2d Cir. 2021) (citation omitted).

There are

Walmart and other Retailer Defendants bring motions to dismiss
similar claims in other cases in this MDL brought under the
Florida Deceptive and Unfair Trade Practices Act, Fla. Stat.
Ann. §§ 501.201 et seq.; the Louisiana Unfair Trade Practices
and Consumer Protection Law, La. Rev. Stat. Ann. §§ 51:1401 et
seq.; the Minnesota Uniform Deceptive Trade Practices Act, Minn.
Stat. §§ 325D.43 et seq.; the Oregon Unlawful Trade Practices
Act, Or. Rev. Stat. §§ 646.605 et seq.; the Pennsylvania Unfair
Trade Practices and Consumer Protection Law, 73 Pa. Stat.
§§ 201-1 et seq.; and the Washington Consumer Protection Act,
Wash. Rev. Code §§ 19.86.010 et seq.
2

8

three general types of preemption, including, as relevant to
this Opinion, express preemption. 3

Id. at 125-26.

“Express preemption occurs when Congress withdraws
specified powers from the States by enacting a statute
containing an express preemption provision.”

Trikona Advisers

Ltd. v. Chugh, 846 F.3d 22, 35 (2d Cir. 2017) (citation
omitted).

Here, the relevant provision appears in the Federal

Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-399g (“FDCA”).
21 U.S.C. § 379r(a) provides in pertinent part that
no State or political subdivision of a State may
establish or continue in effect any requirement -(1)

that relates to the regulation of a [nonprescription drug]; and

(2)

that is different from or in addition to, or that
is otherwise not identical with, a requirement
under [the FDCA], the Poison Prevention Packaging
Act of 1970 (15 U.S.C. 1471 et seq.), or the Fair
Packaging and Labeling Act (15 U.S.C. 1451 et
seq.).

That same section provides, however, that “[n]othing in this
section shall be construed to modify or otherwise affect any
action or the liability of any person under the product
liability law of any State.”

Id. § 379r(e).

Thus, through

The arguments made by Walmart, the other Retailer Defendants,
and JJCI that all claims against them in this MDL must be
dismissed due to conflict preemption are addressed in prior
Opinions in this litigation. See April Opinion, No. 22md3043
(DLC); November Opinion, 2022 WL 17348351.
3

9

these provisions, “Congress pre-empted certain state
requirements concerning over-the-counter medications . . . but
expressly preserved product liability actions.”

Wyeth v.

Levine, 555 U.S. 555, 575 n.8 (2009).
“If a federal law contains an express pre-emption clause,
it does not immediately end the inquiry because the question of
the substance and scope of Congress’ displacement of state law
still remains.”
(2008).

Altria Grp., Inc. v. Good, 555 U.S. 70, 76

In determining the scope of preemption, courts “focus

on the plain wording of the statute, which is necessarily the
best evidence of the scope of Congress’s preemptive intent.”
Galper v. JP Morgan Chase Bank, N.A., 802 F.3d 437, 443 (2d Cir.
2015); see also Puerto Rico v. Franklin Cal. Tax-Free Tr., 579
U.S. 115, 125 (2016).

“The structure and purpose of the federal

statute is also a guide to Congress’s intent.”

Galper, 802 F.3d

at 443.
Under the plain wording of the two statutory provisions at
issue, the determination of whether the Tennessee law is
preempted under § 379r is a two-part inquiry.

A court must

first determine whether the TCPA “relates to the regulation of”
non-prescription drugs and is “different from or in addition to”
or “otherwise not identical with” the requirements of the three
federal statutes listed in the section.
10

21 U.S.C. § 379r(a).

If so, the state law is preempted unless it is part of the
“product liability law of any State.”

Id. § 379r(e).

The TCPA is a consumer protection statute, enacted in 1977
and modeled after the Federal Trade Commission Act.
Code Ann. §§ 47-18-101, 47-18-102, 47-18-115.

See Tenn.

The TCPA bars

many business practices as “unfair or deceptive acts or
practices.”

Id. § 47-18-104(a).

Among other practices, it

regulates the manner in which goods are represented and
advertised, including representations about their uses and
benefits.

See id. § 47-18-104(b)(5); see also, e.g., Local TV

Tenn. LLC v. N.Y.S.E. Wolfchase LLC, No. W2017-00675-COA-R3-CV,
2018 WL 1721866, at *6 (Tenn. Ct. App. Apr. 9, 2018).

The

parties do not dispute that the TCPA claim falls within the
scope of § 379r(a).

See, e.g., Goldstein v. Walmart, Inc., ---

F. Supp. 3d ---, 2022 WL 16540837, at *10-12 (S.D.N.Y. 2022)
(finding that consumer protection claims based on purportedly
false or misleading over-the-counter drug labels were preempted
by § 379r(a)); see also Critcher v. L’Oreal USA, Inc., 959 F.3d
31, 38 (2d Cir. 2020) (noting that the FDCA’s similar preemption
provision for cosmetics bars plaintiffs “from seeking to impose
additional or different labeling requirements through” state
consumer protection laws).

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Since the TCPA claim falls within § 379r(a), the next
question is whether the claim is exempted from preemption
because it is part of the “product liability law of any State.”
The claim is not exempted.

The term “product liability law” is

undefined in the federal statute.

It is well established,

however, that where a federal statute uses a term with a settled
meaning in the common law, “a court must infer, unless the
statute otherwise dictates, that Congress meant to incorporate
the established meaning” of the term.

Felder v. U.S. Tennis

Ass’n, 27 F.4th 834, 843 (2d Cir. 2022) (citation omitted).
This is because
where Congress borrows terms of art in which are
accumulated the legal tradition and meaning of
centuries of practice, it presumably knows and adopts
the cluster of ideas that were attached to each
borrowed word in the body of learning from which it
was taken and the meaning its use will convey to the
judicial mind unless otherwise instructed.
United States v. Soler, 759 F.3d 226, 233 (2d Cir. 2014)
(citation omitted).
Although the precise contours of “product liability law”
are indefinite, certain characteristics of such laws are clear
and presumed to have been adopted by Congress.

Specifically,

product liability law refers to a body of law, originally
developed through the common law, aimed at providing relief for
personal and property damage caused by defective products.
12

Black’s Law Dictionary, for example, defines products liability
as a “manufacturer’s or seller’s tort liability for any damages
or injuries suffered by a buyer, user, or bystander as a result
of a defective product” and defines a products-liability action
as a
lawsuit brought against a manufacturer, seller, or
lessor of a product -- regardless of the substantive
legal theory or theories on which the lawsuit is
brought -- for personal injury, death, or property
damage caused by the manufacture, construction,
design, formulation, installation, preparation, or
assembly of a product.
Black’s Law Dictionary (11th ed. 2019) (emphases added).

This

definition aligns with definitions from the time of § 379r’s
enactment.

See Products Liability, Products Liability Action,

Black’s Law Dictionary (7th ed. 1999); Product Liability,
Black’s Law Dictionary
(6th ed. 1990).
Similarly, the Restatement (Third) of Torts: Products
Liability notes that “products liability is a discrete area of
tort law which borrows from both negligence and warranty.”
Restatement Third of Torts: Prod. Liab. § 1 cmt. a (Am. L. Inst.
1998) (emphasis added).

The Restatement reviews the evolution

of products liability law from its origins in claims of
manufacturing defects, which have a “long history in the common
law,” to more recent developments in claims for design defects
13

and inadequate instructions or warnings.

Id.

The Restatement

also explains that products liability claims should be based on
personal or property damage and that “[s]ome categories of loss,
including those often referred to as ‘pure economic loss,’ are
more appropriately assigned to contract law.”

Id. § 21 cmt. a.

These descriptions are consistent with a statement in the
legislative history of § 379r.

Specifically, a Senate report

preceding the enactment of § 379r notes that “the legislation
explicitly provides that it shall not be construed to modify or
otherwise affect the traditional product liability law of any
State.

Tort liability rules and requirements would remain

unchanged and unaffected.”

S. Rep. No. 105-43, at 66 (1997)

(emphases added).
Thus, various sources suggest that in exempting claims
brought under the “product liability law of any State,” Congress
intended to exempt state law claims based on traditional
theories of liability, largely grounded in tort law, for
personal and property damage caused by defective products.

That

understanding of product liability law is adopted here in
reviewing the scope of Congress’s express preemption decision. 4
The Plaintiffs argue that the interpretation of the term
“product liability law” is a question of state law and that
since there are no opinions from Tennessee’s highest court
holding that TCPA claims are not product liability claims, the
TCPA claim should survive. But the interpretation of a federal
4

14

As already explained, the TCPA is a consumer protection
statute modeled on a federal law.

It did not arise from the

development of the common law of torts.

Nor does it aim

primarily to provide relief to plaintiffs injured by defective
products.

And, where products liability law involves claims of

personal or property damage, see id. § 29-28-102(6), the TCPA
authorizes plaintiffs to bring claims based solely on economic
loss.

See id. § 47-18-109(a)(1).

Indeed, some Tennessee courts

have interpreted the TCPA to bar claims based on certain
personal injuries, rather than on mere economic loss.

See,

e.g., Birdsong v. Eli Lilly & Co., 2011 WL 1259650, at *3 (M.D.
Tenn. Mar. 31, 2011); Kirksey v. Overton Pub, Inc., 804 S.W.2d
68, 73 (Tenn. Ct. App. 1990).

Accordingly, the TCPA does not

fall within the ”product liability law of any State” and is thus
not exempt from the express preemption provision of the FDCA.
As a result, the TCPA claim is dismissed as preempted.

statute is a question of federal law. See, e.g., Johnson v.
United States, 559 U.S. 133, 138 (2010). Moreover, even if
state law were the appropriate source to consult, the definition
of “product liability action” in the TPLA is relevantly similar
to that adopted here. The TPLA provides that a ”product
liability action” is one “brought for or on account of personal
injury, death or property damage caused by” a defective product.
Tenn. Code Ann. § 29-28-102(6). The Tennessee definition of a
product liability action also lists several illustrative
theories of liability with roots in the common law. See id.
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III. The Tennessee Products Liability Act
The defendant argues that all the Plaintiffs’ common law
claims must be dismissed because they have been “subsumed”
within the TPLA.

The motion to dismiss the remaining claims on

this ground is denied.
The TPLA “provides an extensive statutory framework for all
claims arising from injuries alleged to have been caused by
products.”

Coffman v. Armstrong Int’l, Inc., 615 S.W.3d 888,

895 (Tenn. 2021).

“Through its enactment, the TPLA superseded

common law claims for personal injuries stemming from alleged
defects in products or failure to warn of the dangers associated
with a product.”

Id.

The TPLA applies to any “product

liability action,” which is defined in the statute as any action
brought for or on account of personal injury, death or
property damage caused by or resulting from the
manufacture, construction, design, formula,
preparation, assembly, testing, service, warning,
instruction, marketing, packaging or labeling of any
product. “Product liability action” includes, but is
not limited to, all actions based upon the following
theories: strict liability in tort; negligence; breach
of warranty, express or implied; breach of or failure
to discharge a duty to warn or instruct, whether
negligent, or innocent; misrepresentation;
concealment, or nondisclosure, whether negligent, or
innocent; or under any other substantive legal theory
in tort or contract whatsoever.
Tenn. Code Ann. § 29-28-102(6) (emphases added).

The TPLA

provides various rules governing product liability claims
including, for example, a specific statute of limitations and
16

rules regarding the determination of whether a product at issue
is defective or unreasonably dangerous.

See id. §§ 29—28-103;

29-28-105.
Here, the defendant argues that all the Plaintiffs’ claims
must be dismissed essentially because the Plaintiffs did not
note in the master complaint or the SFC that the claims were
brought under the TPLA.

This argument fails.

“The failure in a

complaint to cite a statute, or to cite the correct one, in no
way affects the merits of the claim.
are what matters.”

Factual allegations alone

Townsend v. Benjamin Enters., 679 F.3d 41,

57 (2d Cir. 2012) (citation omitted).
Although the TPLA provides a statutory framework for
product liability claims made under Tennessee law, plaintiffs
can still bring claims under that statute based on multiple
traditional common law theories of product liability, as the
plaintiffs have done here.

See, e.g., Coffman, 615 S.W.3d 888,

893 (addressing TPLA claims based on both negligence and strict
liability failure to warn); Tatham v. Bridgestone Americas
Holding, Inc., 473 S.W.3d 734, 739 (Tenn. 2015) (addressing TPLA
claims based on strict liability, negligence, and breaches of
implied warranty of fitness, implied warranty of
merchantability, and duty to warn).

The defendant does not

argue that the Plaintiffs’ pleadings are insufficient to present
17