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Rutledge v. Walgreen Co.; Phippen v. Walgreen Co.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2025
Argued: November 17, 2025 Decided: July 13, 2026
Docket Nos. 24-916-cv(L), 24-1121(Con), 24-2360(Con); 24-2594-cv
TIFFANY RUTLEDGE, INDIVIDUALLY AND AS MOTHER, GENERAL GUARDIAN OF,
ET AL., KRISTOPHER WHITE, BRIDGET MCCONNELL, ALEXANDER HOLLAND,
CHRISTINE HOLLAND,
Plaintiffs-Appellants,
v.
WALGREEN CO., COSTCO WHOLESALE CORPORATION, CVS HEALTH
CORPORATION, CVS PHARMACY, INC., SAFEWAY INC., WALMART INC., A DELAWARE
CORPORATION, RITE AID CORPORATION, FAMILY DOLLAR, INC., TARGET
CORPORATION, SAM’S WEST, INC., DOLLAR TREE, INC., 7-ELEVEN, INC., FAMILY
DOLLAR STORES, INC., THE KROGER CO., DOLLAR TREE STORES, INC., JOHNSON &
JOHNSON CONSUMER INC., BIG LOTS, GIANT FOOD LLC, ALBERTSON’S, HARRIS
TEETER LLC, DOLGENCORP, LLC,
Defendants-Appellees.
MICHELLE PHIPPEN, INDIVIDUALLY AND AS GENERAL GUARDIAN OF P.P. AND
L.A., MINORS, ALISHA DAY, INDIVIDUALLY AND AS MOTHER, GENERAL GUARDIAN OF
A.D., A MINOR, SARAH STOKES, INDIVIDUALLY AND AS GENERAL GUARDIAN OF K.G.,
A MINOR, JUAN EMANUEL BORDOY, INDIVIDUALLY, MARY ELIN ARCE, INDIVIDUALLY
AND AS MOTHER OF JUAN EMANUEL BORDOY, AMANDA TRIGLOFF, INDIVIDUALLY
AND AS GENERAL GUARDIAN OF R.S., A MINOR, DEANDRE BARBEE, INDIVIDUALLY,
JANTAIL BARBEE, INDIVIDUALLY AND AS MOTHER OF DEANDRE BARBEE, LAURIE
24-916(L); 24-2594
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COURINGTON, HUNTER COURINGTON, JENNIFER MORROW, ALENA MORROW,
CALLISTA BASSETT, ANDREW BASSETT, SONNITA ROBY, INDIVIDUALLY AND AS
GENERAL GUARDIAN OF D.P., A MINOR, SHANNON MIKUSKI, BRAYDON MCKENZIE,
HEATHER GILLIAM, COLBY GILLIAM, TAYLOR BROWN, TARYNE BURKE,
INDIVIDUALLY AND AS MOTHER WITH COURT-APPOINTED GUARDIAN OF ASHTON
BURKE, SAMARI SIMS, INDIVIDUALLY, DENISA CULLOM, INDIVIDUALLY AND AS
MOTHER OF SAMARI SIMS, COLLIN STOVER, INDIVIDUALLY, DANA STEWART,
INDIVIDUALLY AND AS MOTHER OF COLLIN STOVER, RIAN CZAR JOHNSON,
INDIVIDUALLY, SHILO RICH, INDIVIDUALLY AND AS MOTHER OF RIAN CZAR
JOHNSON, SHEENA SCHNEPP, INDIVIDUALLY AND AS MOTHER AND NATURAL
GUARDIAN OF H.S., A MINOR, ZAYNE COSTELLO, INDIVIDUALLY, CRYSTAL
ALEXANDER, COURTNEY TILLOTSON, MICHELLE BROWN,
Plaintiffs-Appellants,
v.
WALGREEN CO., JOHNSON & JOHNSON CONSUMER INC., WALMART INC.,
Defendants-Appellees. *
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Before: CALABRESI, LYNCH, and LEE, Circuit Judges.
Plaintiffs-Appellants appeal from judgments of the U.S. District Court for
the Southern District of New York (Denise L. Cote, District Judge), dismissing
Plaintiffs-Appellants’ complaints alleging that Defendants-Appellees failed to
* The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above.
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warn them that prenatal ingestion of their acetaminophen products could cause
attention-deficit/hyperactivity disorder and autism spectrum disorder. In
Rutledge, the District Court excluded the general causation evidence offered by
Plaintiffs-Appellants’ five experts, Drs. Baccarelli, Hollander, Pearson, Cabrera, and Louie. In Phippen, it excluded the evidence offered by an additional expert, Dr. Ness. The District Court granted summary judgment for Defendants-Appellees in
both cases.
With respect to expert testimony, the district court serves a “gatekeeping”
function—it is charged with “the task of ensuring that an expert’s testimony both
rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). Where a particular technique or theory has gained general acceptance in the scientific community, and an expert reliably
applies that methodology to the subject of inquiry, testimony is admissible.
We conclude that the District Court exceeded its discretion by excluding the
expert testimony of Drs. Baccarelli, Hollander, and Pearson, but was within its
discretion in excluding the testimony of Drs. Cabrera and Louie. In Phippen, we
conclude that reconsideration of the exclusion of Dr. Ness’s testimony is
warranted in light of our opinion in Rutledge. We further conclude that the District Court correctly declined to dismiss the case on the ground that PlaintiffsAppellants’ failure-to-warn claims were preempted by federal drug labeling laws.
We therefore VACATE and REMAND for further proceedings consistent
with this opinion.
ASHLEY C. KELLER, Keller Postman LLC, Chicago, IL; with
Ashley L.F. Barriere, Keller Postman LLC, Chicago, IL; John J.
Snidow & Roseann R. Romano, Keller Postman LLC,
Washington, DC, for Plaintiffs-Appellants Tiffany Rutledge
Kristopher White, Bridget McConnell, Alexander Holland, Christine
Holland in Rutledge v. Walgreen Co., and for Plaintiffs-Appellants
Sonnita Roby, Taylor Brown, Michelle Phippen, Amanda Trigloff,
Laurie Courington, Hunter Courington, Jennifer Morrow, Alena
Morrow, Callista Bassett, Andrew Bassett, Shannon Mikuski,
Braydon McKenzie, Heather Gilliam, Colby Gilliam, and Michelle
Brown in Phippen v. Walgreen Co.
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Daniel C. Burke, Bernstein Liebhard LLP, New York, NY, for
Plaintiffs-Appellants Juan Emanuel Bordoy, Mary Elin Arce,
Deandre Barbee, Jantail Barbee, Taryne Burke, Samari Sims, Denisa
Cullom, Collin Stover, Dana Stewart, Rian Czar Johnson, Shilo Rich,
Sheena Schnepp, Zayne Costello, Crystal Alexander, and Courtney
Tillotson.
Lindsey Scarcello, Wagstaff & Cartmell, LLP, Kansas City, MO,
for Plaintiff-Appellant Alisha Day.
JAY P. LEFKOWITZ, Kirkland & Ellis LLP, New York, NY; with
Cole T. Carter, Kirkland & Ellis, LLP, Chicago, IL, for DefendantAppellee Johnson & Johnson Consumer Inc.
Jeffrey S. Bucholtz & Amy R. Upshaw, King & Spalding LLP,
Washington, DC; Matthew Noller, King & Spalding LLP, San
Francisco, CA for Defendants-Appellees Walmart Inc. and Sam’s
West, Inc.
Kristen L. Richer, Barnes & Thornburg LLP, Los Angeles, CA,
for Defendants-Appellees CVS Pharmacy, Inc., Walgreen Co., and
Costco Wholesale Corporation.
Amanda Groves, Winston & Strawn LLP, Los Angeles, CA, for
Defendants-Appellees Safeway, Inc., and Albertsons Companies, Inc.
Joseph A. Lara, Stone Dean LLP, Woodland Hills, CA, for
Defendant-Appellee The Kroger Company.
Lori B. Leskin & Mitchell Russell Stern, Arnold & Porter Kaye
Scholer LLP, New York, NY; William C. Perdue & Anthony J.
Franze, Arnold & Porter Kaye Scholer LLP, Washington, DC,
for Defendants-Appellees 7-Eleven, Inc., Dollar Tree Stores, Inc., and
Family Dollar Stores, LLC.
Anne A. Gruner, Duane Morris LLP, Philadelphia, PA, for
Defendant-Appellee Dolgencorp, LLC.
Deanne E. Maynard, Morrison & Foerster LLP, Washington,
DC; Julie Y. Park & Alexandra Preece Barlow, Morrison &
Foerster LLP, San Diego, CA; Alexandra M. Avvocato,
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Morrison & Foerster LLP, New York, NY, for Defendant-Appellee
Target Corporation.
Jeffrey R. White, American Association for Justice, Washington
DC, for Amicus Curiae American Association for Justice, in support
of Plaintiffs-Appellants.
Lawrence P. Eagel, J. Brandon Walker, and Marion C.
Passmore, Bragar Eagel & Squire, P.C., New York, NY, for Amici
Curiae Law Professors Anne Bloom, Erwin Chemerinsky, Valerie P.
Hans, and Richard L. Jolly, in support of Plaintiffs-Appellants.
John R. Byrne, Maderal Byrne & Furst PLLC, Coral Gables, FL,
for Amici Curiae Epidemiologists Yinong Young-Xu, Marc
Weisskopf, and Graham Colditz, in support of Plaintiffs-Appellants.
Jennifer B. Dickey & Mariel A. Brookins, Chamber of
Commerce of the United States of America, Washington, DC;
Joshua J. Fougere & Madeleine Joseph, Sidley Austin LLP,
Washington, DC, for Amicus Curiae Chamber of Commerce of the
United States, in support of Defendants-Appellees.
Raffi Melkonian, Wright, Close & Barger LLP, Houston, TX, for
Amicus Curiae Lawyers for Civil Justice, in support of DefendantsAppellees.
CALABRESI, Circuit Judge:
Plaintiffs-Appellants in these tandem cases bring failure-to-warn claims
under state law relating to acetaminophen, the active ingredient in Tylenol and its
generic equivalents. They are children, parents, and guardians who allege that
prenatal ingestion of acetaminophen caused them or their children to develop
attention-deficit/hyperactivity disorder (“ADHD”) and/or autism spectrum
disorder (“ASD”). Defendants-Appellees are the pharmaceutical companies,
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pharmacies, and retailers involved in the manufacturing, marketing, and/or sale
of acetaminophen products.
In the cases underlying the first appeal, Rutledge v. Walgreen Co., PlaintiffsAppellants relied on the general causation testimony of five experts—Dr. Andrea
Baccarelli, M.D., Ph.D., Dr. Eric Hollander, M.D., Dr. Brandon Pearson, Ph.D., Dr.
Robert Cabrera, Ph.D., and Dr. Stan Louie, Pharm.D.—who opined as to a possible
causal relationship between prenatal acetaminophen use and ADHD and ASD.
The district court excluded the testimony of those five experts and granted
summary judgment to Defendants-Appellees.
The second appeal, Phippen v. Walgreen Co., involves a separate group of
Plaintiffs-Appellants alleging injury solely from ADHD. After the district court’s
initial ruling, those Plaintiffs-Appellants introduced an additional expert, Dr.
Roberta Ness, M.D., M.P.H., to testify as to a possible causal relationship between
prenatal acetaminophen use and ADHD only. The district court excluded her
testimony and granted summary judgment to Defendants-Appellees. We consider
these appeals together because of the substantial overlap of the issues they present.
These appeals concern what qualifies as admissible epidemiological
testimony in support of a general causal relationship. They arise against the
backdrop of significant debate in the relevant scientific communities. That debate
has also become political. But the issue before us is not political. It is not about
positions taken by elected officials or political appointees. Nor do these appeals
require us to decide whether acetaminophen use during pregnancy has adverse
effects on fetal development. The issues before us concern the rules of evidence,
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specifically the requirements for the admissibility of expert testimony. And so it is
important that before we begin, we make clear what we are deciding and what we
are not.
We are not deciding whether there is a general causal relationship between
acetaminophen and ADHD and/or ASD. We are also not deciding whether the
manufacturers of acetaminophen must warn consumers about any alleged risk
posed by such a potential causal relationship. And we are certainly not deciding
the approach that policymakers concerned with protecting public health should
take to regulating the use of acetaminophen. Rather, we are called upon to decide
how closely a trial court may scrutinize a qualified expert’s conclusions when that
expert follows methodologies that are generally accepted in their field, and the
standard of reliability required for the admission of expert testimony on issues
that are the subject of ongoing scientific debate.
We conclude that, in Rutledge v. Walgreen Co., the district court exceeded its
discretion in excluding the expert testimony of Drs. Baccarelli, Hollander, and
Pearson. Those concededly qualified experts offered opinions that comport with
methodologies applied by other scientists in their fields, and constitute acceptable
interpretations of scientific evidence where scientists may, and in fact do, disagree
on the ultimate answer to the causal question that they are assessing.
The district court did not, however, abuse its discretion in excluding the
testimony of Drs. Cabrera and Louie. The district court was entitled to conclude
that Cabrera’s opinion was unreliable because it did not weigh or properly
synthesize the factors under the so-called Bradford Hill methodology that he
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employed. And the district court was similarly entitled to conclude that Louie’s
opinion did not reliably address the dose and duration exposure threshold for risk
of ADHD and ASD because he failed to explain how he extrapolated from the
studies he analyzed to reach his final conclusion. We therefore vacate and remand
the district court’s judgment in Rutledge.
In Phippen, Plaintiffs-Appellants offered Ness as an expert only after the
district court’s exclusion of Baccarelli, Hollander, Pearson, Cabrera, and Louie.
With the admission of expert testimony from Baccarelli, Hollander, and Pearson,
or for other reasons discussed below, it may be that Plaintiffs-Appellants would
no longer seek to offer Ness’s testimony. We therefore vacate the district court’s
judgment in Phippen, and remand for such further proceedings as the district court
finds appropriate, consistent with this opinion.
Finally, Defendants-Appellees argue that in both Rutledge and Phippen we
should affirm the district court’s judgment on the alternative ground that federal
drug labeling law preempts Plaintiffs-Appellants’ failure-to-warn claims. The
district court rejected that argument at the pleading stage. Here, the district court
did not err. Federal regulations require acetaminophen manufacturers to display
verbatim a general pregnancy warning, but they do not prohibit supplemental,
specific warnings against plausible risks.
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I. BACKGROUND
A. Acetaminophen, ADHD, and ASD
Plaintiffs-Appellants are parents, guardians, and children who claim that
they or their children developed ADHD and/or ASD due to prenatal
acetaminophen exposure.
Acetaminophen, also called paracetamol or APAP, is the active ingredient
in Tylenol and other over-the-counter pain relievers. It is one of the few drugs
indicated for use by pregnant women for pain and fever which, if left untreated,
can harm both the woman and fetus. It is also a drug intended for systemic
absorption (i.e., absorption through the blood stream). As such, when taken by
pregnant women, acetaminophen can cross the placental barrier and enter fetal
circulation. The FDA requires all such drugs to bear a general warning to pregnant
and nursing women advising that they consult “a health professional before use.”
21 C.F.R. § 201.63. But, as relevant to Plaintiffs-Appellants’ claims, the FDA does
not require that acetaminophen carry any warning related to ADHD and/or ASD,
nor do Defendants-Appellees offer such a warning.
ADHD and ASD are neurological developmental disorders (“NDDs”).
ADHD is characterized by “a persistent pattern of” inattention, hyperactivity, and
impulsivity “that interferes with functioning or development.” American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th
ed., Text Revision, 2022) (“DSM”) at 70. ASD is characterized by a “persistent
impairment” in “social communication” and “restricted, repetitive patterns of
behavior, interests, or activities.” Id. at 60. Although both disorders are highly
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heritable, a fact that indicates some genetic influence, their precise causes are
unknown. Id. at 64 (ASD), 71 (ADHD). For example, while some ASD cases are
associated with a known genetic mutation, “[a] variety of risk factors for
neurodevelopmental disorders, such as advanced parental age, extreme
prematurity, or in utero exposures to certain drugs or teratogens like valproic acid,
may broadly contribute to risk of [ASD].” Id. at 64.
Scientists have been investigating a potential causal relationship between
prenatal acetaminophen use and neurodevelopmental disorders for decades but
no study has established such a relationship. The FDA opened a Tracked Safety
Issue for prenatal acetaminophen exposure in 2014 and has since conducted
periodic reviews of the evidence scientists have collected. In each such review, the
FDA has noted that while prenatal acetaminophen exposure is associated in some
studies with adverse neurological outcomes, study limitations and inconsistent
results between studies have prevented the agency from determining causality.
See, e.g., Abraham et al., Functional Neurobehavioral Outcomes and Urogenital
Outcomes Associated with Prenatal Acetaminophen Exposure, U.S. Food and Drug
Administration (July 15, 2022), at 33; Abraham et al., Updated Literature Review of
Studies that Examine the Association between Acetaminophen Exposure During
Pregnancy and Neurobehavioral or Urogenital Outcomes, U.S. Food and Drug
Administration (March 10, 2023), at 17-18.
In 2021, a group of thirteen authors and seventy-eight signees—consisting
of scientists, clinicians, and public health professionals—published a “Consensus
Statement” reviewing the literature on prenatal acetaminophen use and ADHD
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and ASD. 2 The Consensus Statement concluded that “the combined weight of
animal and human scientific evidence is strong enough for pregnant women to be
cautioned by health professionals against its indiscriminate use.” Bauer et al.,
Consensus Statement: Paracetamol Use During Pregnancy—A Call for Precautionary
Action, 17 Nature Revs. Endocrinology 757, 764 (2021) (“Consensus Statement”).
And it recommended that acetaminophen “be used by pregnant women
cautiously at the lowest effective dose for the shortest possible time.” Id. But it
notably did not conclude that the available data allowed for an inference that a
causal relationship exists. 3 See id. The Consensus Statement built on and echoed
the findings of other scientists who viewed the research as potentially suggesting
a causal relationship. See, e.g., Olson & Liew, Fetal Programming of Mental Health by
Acetaminophen? Response to the SMFM Statement: Prenatal Acetaminophen Use and
ADHD, 16 Expert Op. on Drug Safety 1395 (2017) (summarizing research to-date
as “increas[ing] the probability that the association is causal”); Gou et al.,
Association of Maternal Prenatal Acetaminophen Use with the Risk of Attention
Deficit/Hyperactivity Disorder in Offspring: A Meta-Analysis, 53 Austl. & N.Z. J. of
Psychiatry 195 (2019) (similarly concluding that recent research “lend[s] weight to
the hypothesis that the association is causal”). And other authorities have noted
2 To be clear, the “consensus” reflects the views held in common by the paper’s signatories. The
term does not suggest that the paper reflects a consensus of all experts in the relevant fields of study; as will appear below, it most certainly does not. We use the term because it has become common in the scientific literature as a short-hand reference for the paper in question.
3 As explained in greater detail below, “[e]pidemiologic methods cannot deductively prove
causation”; rather, “epidemiologic evidence can justify an inference, and sometimes a very strong inference, that an agent causes a disease.” Federal Judiciary Center, Reference Manual on Scientific Evidence (4th ed. 2025) (RMSE) at 902 n.10.
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the potential risk, including the Briggs reference guide on Drugs in Pregnancy and
Lactation (12th ed. 2022) which acknowledged that prior assessments of
acetaminophen as “not . . . caus[ing] embryo-fetal harm . . . must change because
of recent data.”
The Consensus Statement prompted replies and counterstatements from
other scientists and medical bodies. Those publications noted the limitations of the
various studies upon which the Consensus Statement relied and expressed
concern that the Consensus Statement could lead pregnant women experiencing
pain and fever to avoid acetaminophen altogether or to turn to less safe
alternatives. See, e.g., Alwan et al., Paracetamol Use in Pregnancy—Caution Over
Causal Inference from Available Data, 18 Nature Revs. Endocrinology 190 (2022)
(“urg[ing] against recommending [] precautionary measures for [acetaminophen]
use in pregnancy and against the dissemination of information based on
inconclusive and insufficient evidence”); O’Sullivan et al., Paracetamol Use in
Pregnancy—Neglecting Context Promotes Misinterpretation, 18 Nat. Rev.
Endocrinology 385 (2022) (expressing concern that “[t]he overarching societal
message that has been drawn from [the] Consensus Statement is that APAP use in
pregnancy is unsafe and should be restricted in both use and access”); American
College of Gynecologists, ACOG Response to Consensus Statement on Paracetamol Use
During Pregnancy (Sept. 29, 2021) (noting that “ACOG’s clinical guidance remains
the same and physicians should not change clinical practice until definitive
prospective research is done”).
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B. Epidemiology and Causation
Epidemiology is the study of the causes, incidence, and distribution of
diseases. RMSE at 972. Since ethical constraints render impossible many
experiments that might be most probative of a causal relationship (e.g., random
clinical trials), epidemiologists often rely instead upon observational studies. In an
observational study, epidemiologists “‘observe’ a group of individuals who have
been exposed to an agent of interest, such as . . . an industrial chemical, and
compare them with another group of individuals who have not been exposed.”
RMSE at 906. An observational study thus allows epidemiologists to determine
whether an association exists between an agent and a health outcome. But an
association “does not necessarily mean that there is a cause-effect relation”
between the agent and that outcome. RMSE at 921. Accordingly, “[t]o make a
judgment about causation,” epidemiologists consider observational studies
identifying an association through the lens of “several key inquiries.” RMSE at 971,
973. One method generally accepted by the courts for structuring that process is
consideration of the Bradford Hill criteria. 4 See, e.g., Sarkees v. E.I. Dupont De
Nemours & Co., 15 F.4th 584, 591–92 (2d Cir. 2021); In re Zoloft (Setraline
Hydrochloride) Prods. Liab. Litig., 858 F.3d 787, 796 (3d Cir. 2017).
The Bradford Hill criteria are a set of factors that epidemiologists examine
to assess whether an observed association is causal in nature. RMSE at 973. No
single Bradford Hill factor is required to infer causation. Nor are the criteria “an
4 The Bradford Hill method takes its name from a 1965 paper by the epidemiologist Sir Austin Bradford Hill describing the approach. See RMSE at 973.
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exhaustive []or a necessary list.” Zoloft, 858 F.3d at 796. In a Bradford Hill analysis,
an epidemiologist typically identifies the body of published scientific literature
that is relevant to their question and then analyzes the results of each of those
studies for the presence, or lack thereof, of each of the Bradford Hill criteria. The
criteria as presented in the Federal Judiciary Center’s Reference Manual on
Scientific Evidence 5 are:
(1) Replication of the findings (also referred to as “consistency”): When the
outcomes of a study are observed “in different populations and by
different investigators,” this supports a causal determination. RMSE at
981.
(2) Strength: “Larger relative risks (or stronger associations using other
statistical measures) are often believed to be more likely to be causal than
smaller ones.” RMSE at 977.
(3) Specificity: Where an “exposure is associated only with a single disease
or type of disease,” this may be strong evidence in support of causality.
RMSE at 984.
(4) Dose-response relationship: If an exposure to a risk factor causes a
disease, then “higher exposures would generally be expected to increase
the incidence or severity of that disease.” RMSE at 977. Dose responses
may take different shapes, including a straightforward linear
relationship, a linear relationship after the dose exceeds a particular
5 Epidemiologists have formulated the Bradford Hill criteria in different ways, for example, referring to the same criterion under a different label or consolidating multiple criteria under a single one.
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threshold, or a non-monotonic effect such as when both under-exposure
and over-exposure to a particular agent causes impaired outcomes.
RMSE at 978–81.
(5) Temporal relationship: Exposure to the risk factor must precede the
disease, because “[i]f the exposure occurs after the disease develops, it
cannot have caused the disease.” RMSE at 975.
(6) Biological plausibility: When a proposed causal relationship is consistent
with “current biological knowledge,” the causal inference is
strengthened. RMSE at 983. This is “not an easy criterion to use and
depends upon existing knowledge about the mechanisms by which the
disease develops.” RMSE at 982. “The mechanisms of some diseases are
understood quite well based on evidence . . . whereas other mechanism
explanations are merely hypothesized—although hypotheses are
sometimes also accepted under this factor.” RMSE at 983.
(7) Consistency with other relevant knowledge (also referred to as
“coherence”): A causal relationship should be consistent with other
information known about the disease. RMSE at 985.
(8) Cessation of exposure (also referred to as “experiment”): When
experimental evidence shows that “eliminating exposure reduces the
incidence of disease,” this supports a causal relationship. RMSE at 984.
In conducting this inquiry, an epidemiologist must also take care to consider “the
possibility that an observed association is caused by something other than the
exposure under study,” such as “bias and confounding.” RMSE at 984.
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C. Statutory and Regulatory Framework
“Under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq.
(‘FFDCA’), a new drug may not enter interstate commerce unless [the] FDA
determines that it is generally recognized as safe and effective (‘GRAS/E’) for the
particular use described in its product labeling.” NRDC v. FDA, 710 F.3d 71, 75 (2d
Cir. 2013). Two such pathways to a GRAS/E determination are relevant here: the
New Drug Application (“NDA”) process and the monograph system.
Under the NDA process, “a manufacturer seeking federal approval to
market a new drug must prove that it is safe and effective and that the proposed
label is accurate and adequate.” PLIVA, Inc. v. Mensing, 564 U.S. 604, 612 (2011).
“The FDA’s premarket approval of a new drug application includes the approval
of the exact text in the proposed label.” Wyeth v. Levine, 555 U.S. 555, 568 (2009).
After a manufacturer receives such approval, it remains charged with “ensuring
that its warnings remain adequate as long as the drug is on the market.” Id. at 571.
Hence a manufacturer may make post-approval label changes that “add or
strengthen a contraindication, warning, precaution, or adverse reaction” based on
“newly acquired information.” 21 C.F.R. § 314.70(c)(6)(iii).
Over-the-counter (“OTC”) drugs, however, may also be approved through
the monograph system. See 21 C.F.R. § 330.10; 21 U.S.C. § 355. “Under this system,
FDA issues a detailed regulation—a ‘monograph’—for each therapeutic class of
OTC drug products.” NRDC, 710 F.3d at 75. Each final monograph “establish[es]
conditions under which a category of OTC drugs . . . are generally recognized as
safe and effective and not misbranded.” 21 C.F.R. § 330.10(a)(9). A final
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monograph “may include any conditions relating to active ingredients, labeling
indications, warnings and adequate directions for use . . . necessary and
appropriate for the safety and effectiveness of drugs covered by the monograph,”
id. § 330.10(a)(5)(i), but need not dictate the full label that manufacturers must
apply to a product marketed under it. Moreover, manufacturers marketing a
specific product under the monograph “are not required to submit labeling to the
agency for preapproval.” Over-The-Counter Human Drugs; Labeling
Requirements, 64 Fed. Reg. 13254, 13271 (Mar. 17, 1999).
Over-the-counter acetaminophen products are marketed pursuant to the
monograph for Internal Analgesic, Antipyretic, and Antirheumatic Drug Products
(“IAAA”). See U.S. Food and Drug Administration, Over-the Counter (OTC)
Monograph M013: Internal Analgesic, Antipyretic, and Antirheumatic Drug
Products for Over-the Counter Human Use (Oct. 14, 2022). 6 The IAAA monograph
sets forth various labeling requirements. For example, acetaminophen labels must
specify only the indications for use established in the monograph. The monograph
does not, however, expressly prohibit additional warnings not specified therein.
Whether approved through the NDA or monograph system, OTC drugs
that are intended for systemic absorption must also contain a general pregnancy
and breast-feeding warning. 21 C.F.R. § 201.63 (“Pregnancy Warning
While the IAAA monograph was not finalized until 2022, it was first proposed as a tentative final
6
monograph in 1988, during which time it had the status of a proposed rule. See Internal Analgesic, Antipyretic, and Antirheumatic Drug Products for Over-the-Counter Human Use; Tentative Final Monograph, 53 Fed. Reg. 46204 (Nov. 16, 1988).
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Regulation”). Acetaminophen is one such drug. The Pregnancy Warning
Regulation states:
The labeling for all over-the-counter (OTC) drug products that are
intended for systemic absorption, unless specifically exempted, shall
contain a general warning under the heading “Warning” (or
“Warnings” if it appears with additional warning statements) as
follows: “If pregnant or breast-feeding, ask a health professional
before use.” [first four words of this statement in bold type] In
addition to the written warning, a symbol that conveys the intent of
the warning may be used in labeling.
Id. § 201.63(a) (bracketed text in original). Because the warning language identified
in the Pregnancy Warning Regulation is “established and identified by quotation
marks,” a separate regulation, the Exact Language Regulation, requires that the
warning appear in the “exact language” specified. Id. § 330.1(c)(2). The Pregnancy
Warning Regulation further provides, however, that
[w]here a specific warning relating to use during pregnancy or while
nursing has been established for a particular drug product in [an
NDA] or for a product covered by an OTC drug final monograph
[then such] specific warning shall be used in place of the warning in
paragraph (a) of this section [“If pregnant or breast-feeding, ask a
health professional before use”], unless otherwise stated in the NDA
or in the final OTC drug monograph.
Id. § 201.63(b).
D. Procedural Background
Several months after publication of the Consensus Statement that suggested
possible links between acetaminophen and ADHD and ASD, Plaintiffs-Appellants
began to file suits against the manufacturers and retailers of acetaminophen,
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alleging that prenatal exposure to the drug caused them or their children to
develop ADHD and/or ASD. Those cases were consolidated and transferred to the
Southern District of New York by the Judicial Panel on Multidistrict Litigation
pursuant to 28 U.S.C. § 1407.
1. Preemption Defense
Two Defendants-Appellees—Walmart, Inc. and Johnson & Johnson
Consumer Inc.—moved to dismiss three failure-to-warn actions on the ground
that federal law preempted the addition of ADHD and/or ASD warnings to
pregnant women on acetaminophen labels. The district court denied those
motions in separate decisions, concluding that while federal law required
acetaminophen manufacturers to display a general pregnancy warning, that
requirement did not preclude manufacturers from including an additional
warning specific to the risk of ADHD and/or ASD. In re Acetaminophen—ASDADHD Prods. Liab. Litig., No. 22-md-3043, 2022 WL 17348351 (S.D.N.Y. Nov. 14,
2022); In re Acetaminophen—ASD-ADHD Prods. Liab. Litig., No. 22-md-3043, 2023
WL 3026412 (S.D.N.Y. Apr. 20, 2023).
2. Motions to Exclude Expert Testimony under Rule 702 and for Summary
Judgment
Following consolidation, the parties agreed first to conduct discovery
related to general causation (i.e., whether a causal relationship generally exists
between prenatal acetaminophen exposure and ADHD and ASD) and, then, if
Plaintiffs-Appellants’ experts survived Rule 702 motions, to proceed with the
remainder of discovery, including specific causation (i.e., whether a particular
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plaintiff developed ADHD and/or ASD because of prenatal acetaminophen
exposure). While Plaintiffs-Appellants bring their claims under the tort law of
various states, there is no dispute that “all fifty states require some evidence of
general causation in products liability cases involving complex products liability
(or medical) issues.” In re Mirena IUS Levonorgestrel-Related Prods. Liab. Litig. (No.
II), 982 F.3d 113, 124 (2d Cir. 2020) (internal quotation marks omitted). PlaintiffsAppellants produced five experts to opine on general causation.
Dr. Baccarelli is an epidemiologist and physician, an elected member of the
National Academy of Medicine, and dean of the Harvard T.H. Chan School of
Public Health. App’x 5417. He identified and analyzed the peer-reviewed
literature on prenatal acetaminophen exposure, then applied two epidemiological
methodologies—the Bradford Hill criteria and the Navigation Guide 7—to
synthesize that evidence. Under each methodology, Baccarelli concluded that the
evidence supports a finding of causality.
Dr. Hollander is a psychiatrist and professor at the Albert Einstein College
of Medicine. He opined as to the interconnectedness of neurodevelopmental
disorders like ADHD and ASD, explaining that it is appropriate for scientists to
consider the two outcomes together, as well as to consider studies with
symptomatic endpoints, when assessing whether a causal relationship exists
7 The Navigation Guide is a method distinct from the Bradford Hill analysis. According to Baccarelli, the Navigation Guide is used “to more readily evaluate causal relationships for toxic and environmental harms.” App’x 1745. It involves the “systematic rating and review of” individualized studies addressing a potential causal relationship “for bias, strength of evidence, and other indicia of study quality.” Id.
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between acetaminophen and ADHD and ASD. App’x 2475. Plaintiffs-Appellants
offered Hollander’s testimony as support for Baccarelli’s Bradford Hill analysis,
which considered ADHD and ASD together, and for Baccarelli’s decision to
consider studies that utilized symptomatic endpoints, in addition to those that
relied upon ADHD and/or ASD as diagnostic outcomes. In his rebuttal report,
Hollander also provided his own Bradford Hill analysis.
Dr. Pearson is a toxicologist at Columbia University. He specializes in
preclinical research relating to neurodevelopmental disorders. 8 Pearson’s report
identified and explained the biological mechanisms by which acetaminophen
exposure could cause ADHD and ASD based on the preclinical literature. App’x
2021.
Dr. Cabrera is a teratologist and geneticist at Baylor College of Medicine.
Teratology is the study of “abnormalities, malformations, and developmental
disorders that occur during prenatal development.” App’x 2207. Cabrera
reviewed the available literature and used two established methodologies—
weight-of-the-evidence 9 and the Bradford Hill criteria—to conclude that
acetaminophen can cause ADHD and ASD. He also asserted the biological
mechanisms through which acetaminophen exposure can be a cause of ADHD and
8 Preclinical studies involve animal and other non-human testing.
9 As its name suggests, under the weight-of-the-evidence approach, an epidemiologist synthesizes a review of the available scientific literature—including “clinical observations, case reports, epidemiological and animal studies, toxicological experiments, [and] exposure data,” alongside “the internal and external validity of th[at] data”—to arrive at an opinion on causation. App’x 2216 n.4.
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ASD by affecting neurodevelopment, using the Adverse Outcome Pathway
framework.
Dr. Louie is a professor of clinical pharmacy at the University of Southern
California. He reviewed the available literature and opined on plausible biological
mechanisms through which acetaminophen can cause ADHD and ASD, and the
dose and duration at which such effects could take place. He opined that the risk
of ADHD and ASD increases when acetaminophen is taken for at least 28
cumulative days during pregnancy. App’x 2737.
The Defendants-Appellees called six experts, only one of whom, Dr.
Stephen Faraone, is directly relevant to this appeal. Faraone is a professor of
psychiatry and neuroscience at the State University of New York Upstate Medical
University. In 2021, he coordinated publication of a separate consensus statement
that compiled “findings with [a] strong evidence base” regarding ADHD. See
Faraone et al., The World Federation of ADHD International Consensus Statement: 208
Evidence-Based Conclusions about the Disorder, 128 Neuroscience & Biobehavioral
Revs. 789 (2021). One finding recognized by that paper was a correlation between
prenatal acetaminophen use and ADHD in children. See id. at 795. In this case,
however, Faraone testified for the Defendants-Appellees that the scientific
literature does not support a causal inference between prenatal acetaminophen
and ADHD.
Following presentation of the expert reports, rebuttal reports, and expert
depositions, the parties each submitted Rule 702 motions. After oral argument, the
district court granted Defendants-Appellees’ Rule 702 motion in its entirety,
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excluding the testimony of Baccarelli, Hollander, Pearson, Cabrera, and Louie, and
denied Plaintiffs-Appellants’ Rule 702 motion as moot. The district court reasoned
that the testimony of each expert did not reflect a reliable application of
epidemiological methodologies to the question at hand, and granted summary
judgment to Defendant-Appellees in approximately 550 cases in the MDL.
Plaintiffs-Appellants appealed that decision in Rutledge.
A separate group of Plaintiffs-Appellants who had filed their claims after
the district court issued its initial Rule 702 decision subsequently sought to
introduce their own expert to testify on general causation for acetaminophen and
ADHD only. That expert, Dr. Ness, is an epidemiologist who previously served as
dean of the University of Texas School of Public Health and as a professor in public
health at the University of Texas Houston until her retirement. She conducted a
Bradford Hill analysis that was responsive to the district court’s analysis and
exclusion of the previous five experts, and testified that there is a causal
relationship between prenatal acetaminophen exposure and ADHD.
Defendants-Appellees filed a Rule 702 motion to exclude Ness. The district
court granted the motion, holding that Ness’s testimony did not appropriately
account for genetic confounding and improperly cherry-picked among studies.
Like their predecessors, this subset of Plaintiffs-Appellants was ordered to show
cause why final judgment should not be entered. They contested the exclusion of
Ness and argued, in the alternative, that summary judgment was not appropriate
because Faraone’s earlier statements in support of a causal connection between
acetaminophen and ADHD could allow a reasonable jury to find in Plaintiffs23
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Appellants’ favor on the issue of general causation. The district court granted
summary judgment for Defendants-Appellees, continuing to exclude Ness and
explaining that “even if each [Faraone] statement were admissible, the statements
would not constitute reliable evidence of general causation in support of the
plaintiffs’ theory.” In re Acetaminophen – ASD-ADHD Prods. Liab. Litig., 2024 WL
3874183, at *4 n.6 (S.D.N.Y. Aug. 20, 2024). That judgment is the basis of the appeal
in Phippen.
Plaintiffs-Appellants now bring these tandem appeals challenging, in
Rutledge, the district court’s exclusion of the five general causation experts for
ADHD and ASD (Baccarelli, Hollander, Pearson, Cabrera, and Louie), and in
Phippen, one general causation expert as to ADHD (Ness). The Phippen PlaintiffsAppellants further argue in the alternative that, even if all experts remain
excluded, summary judgment was not appropriate because a reasonable jury
could rely on Faraone’s statements to find for Plaintiffs-Appellants. DefendantsAppellees contend that these experts were properly excluded and that, even if they
weren’t, we should affirm the district court’s judgments because the FDA’s
regulations preempt any state law that would require Defendants-Appellees to
supplement the FDA’s mandated pregnancy warning on their products.
II. Discussion
A. Rule 702 Legal Framework
The admissibility of expert scientific testimony is governed by the Federal
Rules of Evidence. Rule 702 provides that:
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[a] witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify . . . if the proponent
demonstrates to the court that it is more likely than not that: (a) the
expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d)
the expert’s opinion reflects a reliable application of the principles
and methods to the facts of the case.
See also Daubert v. Merrell Dow Pharms., 509 U.S. 579, 598 (1993). This standard
requires district courts to look carefully at the qualifications and methodology of
each expert.
1. Qualifications
“To determine whether a witness qualifies as an expert, courts compare the
area in which the witness has superior knowledge, education, experience, or skill
with the subject matter of the proffered testimony.” United States v. Tin Yat Chin,
371 F.3d 31, 40 (2d Cir. 2004). “Experts need not conduct studies of their own in
order to opine on a topic; a review of other studies and scientific literature can be
enough to qualify experts to testify and to make that proposed testimony reliable.”
In re Mirena IUD Prods. Liab. Litig., 169 F. Supp. 3d 396, 412 (S.D.N.Y. Mar. 8, 2016),
citing McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042–43 (2d Cir. 1995).
2. Reliability
In addition to confirming that experts are qualified to offer testimony, Rule
702 charges district courts with the “task of ensuring that an expert’s testimony
both rests on a reliable foundation and is relevant to the task at hand.” Daubert,
509 U.S. at 597. To determine reliability, the district court may consider whether
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the expert’s theory or technique can and has been tested; whether it has been
subjected to peer review and publication; whether it has a known error rate or
standards to control its operation; and its general acceptance in the relevant
scientific community. Id. at 593–94. The objective of this gatekeeping requirement
is “to make certain that an expert, whether basing testimony upon professional
studies or personal experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). “In deciding whether a[n] . . .
expert’s analysis is []reliable, the district court should undertake a rigorous
examination of the facts on which the expert relies, the method by which the expert
draws an opinion from those facts, and how the expert applies the facts and
methods to the case at hand.” Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256,
267 (2d Cir. 2002).
While the focus of the court’s Daubert inquiry should be “on principles and
methodology, not on the conclusions that they generate,” Daubert, 509 U.S. at 595,
“conclusions and methodology are not entirely distinct from one another,” Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Accordingly, “nothing in either Daubert
or the Federal Rules of Evidence requires a district court to admit opinion evidence
that is connected to existing data only by the ipse dixit of the expert.” Id.
Consequently, “when an expert opinion is based on data, a methodology, or
studies that are simply inadequate to support the conclusions reached, Daubert
and Rule 702 mandate the exclusion of that unreliable opinion testimony.”
Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 255 (2d Cir. 2005), quoting
Amorgianos, 303 F.3d at 266.
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As the Rules Committee has explained, “[i]t will often occur that experts
come to different conclusions based on contested sets of facts. Where that is so the
[rule] does not necessarily require exclusion of either side’s experts.” Fed. R. Civ.
P. 702 committee note to 2023 amendment. That is because a party “do[es] not have
to demonstrate to the judge by a preponderance of the evidence that the
assessments of their experts are correct, they only have to demonstrate by a
preponderance of the evidence that their opinions are reliable.” Id. (internal
quotation marks omitted). “The evidentiary standard of reliability is lower than
the merits standard of correctness.” Id. (internal quotation marks omitted).
3. Standard of Review
“We review a district court’s determination to admit or exclude expert
testimony under Daubert for abuse of discretion.” Amorgianos, 303 F.3d at 264. A
decision to admit or exclude expert scientific testimony is not an abuse of
discretion unless it is “manifestly erroneous.” In re Mirena (No. II), 982 F.3d at 122
(2d Cir. 2020) (internal quotation marks omitted).
B. Rule 702 Application
As to the first prong of the Rule 702 analysis in Rutledge, we agree with the
district court that “[e]ach of the parties’ experts is eminently qualified.” 707 F.
Supp. 3d at 317.
On the second prong, while the district court’s review of the expert
testimony at issue in this case was thorough and well-documented, we conclude
that, in the case of Baccarelli, Hollander, and Pearson, the court went beyond its
proper role as gatekeeper by excluding experts whose testimony was consistent
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with the methodologies actually employed in their field; by substituting its own
understanding of various epidemiological criteria for that of the expert scientists;
and by faulting the scientists for reaching particular conclusions where there is
disagreement in the scientific community over the proper interpretation of the
body of evidence. What follows is a non-exhaustive list of the instances in which
we hold the district court to have been in error. These instances, we find, are
sufficient to vacate the district court’s opinion as to Baccarelli, Hollander, and
Pearson and to hold their testimony to be admissible. It bears repeating that this is
not to say that we deem the opinions of those experts correct on the issue of
causation, we hold only that the district court erred in deeming their testimonies
unreliable and therefore not worthy of consideration by a jury. And because we
find that the district court erred in its assessment in Rutledge, we need not reach
the district court’s assessment of Ness in Phippen.
As will be made clear, our analysis primarily focuses on Baccarelli’s opinion,
which also sits front and center in the parties' briefing and the district court's
analysis. That opinion is the broadest in scope and supplies the foundation for
Plaintiffs-Appellants’ assertion of a causal relationship between prenatal exposure
to acetaminophen and ASD and ADHD. The other experts' opinions, while also
noteworthy, serve to support and corroborate aspects of Baccarelli's analysis.
1. Baccarelli
a. Transdiagnostic Bradford Hill analysis
The district court first rejected Baccarelli’s testimony because of how he
structured his Bradford Hill analysis. Baccarelli performed a single Bradford Hill
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analysis to examine the effect of prenatal acetaminophen on ADHD, ASD, and
neurodevelopmental symptoms consistent with those disorders. The parties and
the district court have referred to this as a “multiple-outcomes” or
“transdiagnostic” approach. As inputs to that analysis, Baccarelli considered peerreviewed studies that used both diagnostic and non-diagnostic endpoints.
Diagnostic endpoint studies examine populations that have been diagnosed with
the condition of interest (e.g., ADHD and/or ASD), whereas non-diagnostic
endpoint studies use outcomes such as symptoms or closely related conditions
(e.g., neurodevelopmental deficits associated with ADHD and/or ASD). In other
words, he performed a single Bradford Hill analysis on both ADHD and ASD
together and used studies that examined both symptomatic and diagnostic
outcomes.
Baccarelli explained this methodological choice in his report: “[D]ifferent
NDDs often have shared/overlapping symptomology as well as shared biological
pathways or causes . . . . Therefore, in assessing the association between
acetaminophen exposure in utero and neurodevelopmental disorders like ASD
and ADHD, it is important to consider not just the clinical diagnoses but also the
neurodevelopmental outcomes, including the symptoms.” App’x 1778. He
acknowledged in his rebuttal report that while “studies showing an association
between prenatal [acetaminophen] exposure and clinical diagnoses of ADHD and
ASD provide particularly powerful evidence of a causal relationship,” that “in no
way suggests that researchers should blind themselves to the results from studies
using other endpoints that are obviously relevant to the question at hand.” App’x
2892.
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The district court held that this methodological choice was inappropriate
because, while ADHD and ASD share some symptoms, “the diagnostic criteria of
the two disorders are undeniably distinct.” 707 F. Supp. 3d at 340. And the district
court further concluded that the focus on symptomatic outcomes rendered
Baccarelli’s testimony irrelevant because “this litigation is brought to obtain
recovery on behalf of those who have been diagnosed with ASD or ADHD, not on
behalf of anyone with, for example, a deficit in communication or self-regulation.”
Id. at 339. The district court also asserted that the multiple-outcomes approach
“obscured limitations in the scientific literature,” such that “[i]f the studies for
either ASD or ADHD were subjected to their own individual Bradford Hill
analysis, it would be easier to discern whether there was actual support for a
finding that prenatal exposure to acetaminophen causes either ASD or ADHD.”
Id.
That ruling was erroneous because it penalized Baccarelli for using a
methodology that epidemiologists routinely use—in other words, for testimony
that embodies “the same level of intellectual rigor that characterizes the practice
of an expert in the relevant field.” Kumho Tire Co., 526 U.S. at 152.
Scientists have conducted multiple-outcome Bradford Hill analyses
examining, for example, the relationship between air pollution, mental diseases,
and mortality; between e-cigarettes and various types of oral cancers; and between
psychological factors and irritable bowel disease (encompassing Crohn’s disease
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and ulcerative colitis). 10 Moreover, other scientists have, independently, examined
the Bradford Hill criteria for ADHD and ASD together. See Alemany et al., Prenatal
and Postnatal Exposure to Acetaminophen in Relation to Autism Spectrum and AttentionDeficit and Hyperactive Symptoms in Childhood, 36 Euro. J. Epidemiology 993, 1000
(2021). And the FDA has likewise considered the relationship between “in utero
[acetaminophen] exposure and neurobehavioral and urogenital outcomes.”
Abraham 2023, at 3. Indeed, in its own weight-of-the-evidence review, Johnson &
Johnson examined whether prenatal acetaminophen exposure could cause a broad
category of “neurocognitive/neurodevelopmental-related events,” including
developmental disorders or delays, neurological disorders or delays, ADHD,
speech and language disorders, and ASD. App’x 6610, 6613.
Baccarelli’s use of studies that examine non-diagnostic endpoints, in
addition to those that used diagnostic ones, likewise did not render his testimony
unreliable. Other scientists not involved in this litigation studying the connection
between prenatal acetaminophen exposure and ADHD and ASD have routinely
utilized symptomatic endpoints alone or in combination with diagnostic ones—
10 See, e.g., John P.A. Ioannidis, Air Pollution as Cause of Mental Disease: Appraisal of the Evidence, 17 PLOS
Biology (2019) (evaluating the connection between “air pollution” and “mental disease,” including
depression, bipolar disorder, schizophrenia, and personality disorder); Raj et al., Reviewing the Oral
Carcinogenic Potential of E-Cigarettes Using the Bradford Hill Criteria of Causation, 9 Translational Cancer
Rsch. 3142 (2020) (evaluating “e-cigarettes” and “oral cancer”); Schoultz et al., Assessment of Causal Link
Between Psychological Factors and Symptom Exacerbation in Inflammatory Bowel Disease: A Systematic Review
Utilising Bradford Hill Criteria and Meta-Analysis of Prospective Cohort Studies, 9 Systematic Revs. (2020)
(evaluating “irritable bowel disease” and “psychological stress,” which encompassed a “variety of
minor to major psychological factors”).
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several of which Baccarelli cites. See, e.g., App’x 1840 (citing Avella-Garcia 2016, 11
which measured “autism spectrum symptoms” and “inattention and
hyperactivity/impulsivity symptoms”); App’x 1834 (citing Masarwa 2018, 12 a
meta-analysis that discussed studies with both diagnostic and symptomatic
endpoints). At least one of Defendants-Appellees’ experts also discussed
symptom-endpoint studies in a textbook chapter. See App’x 4836 (Dr. Alexander
Kolevzon citing Masarwa 2018). So did Johnson & Johnson’s own scientists in their
internal review of the literature on prenatal acetaminophen exposure. See App’x
6652 (citing Avella-Garcia 2016); App’x 6655 (citing Bornehag 2018, 13 which
measured “language development”); App’x 6649 (citing Thompson 2014, 14 which
measured “ADHD symptoms”). In fact, Johnson & Johnson’s review of the
literature noted Avella-Garcia’s use of symptomatic evidence as a strength of that
study, because it “assessed milder ADHD and Autism Spectrum Condition (ASC)
symptoms which are much more prevalent in the population.” App’x 6654.
We do not mean to suggest that all Bradford Hill analyses that
simultaneously examine multiple outcomes, or that use symptomatic as well as
diagnostic endpoints, are reliable and admissible under Rule 702. We can imagine,
11 Avella-Garcia et al., Acetaminophen Use in Pregnancy and Neurodevelopment: Attention Function and Autism Spectrum Symptoms, 45(6) Int. J. Epidemiology 1987 (2016).
12 Masarwa et al., Prenatal Exposure to Acetaminophen and Risk for Attention Deficit Hyperactivity
Disorder and Autistic Spectrum Disorder: A Systematic Review, Meta-Analysis, and Meta-Regression Analysis of Cohort Studies, 187(8) Am. J. Epidemiology 1817 (2018).
13 Bornehag et al., Prenatal Exposure to Acetaminophen and Children's Language Development at 30
Months, 51 Euro. Psych. 91 (2018).
14 Thompson et al., Association Between Acetaminophen Use During Pregnancy and ADHD Symptoms
Measured at Ages 7 and 11 Years, 9(9) PLoS One 1 (2014).
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for example, conditions which are sufficiently distinct so that a single, joint,
analysis could not be performed in a reliable manner. There may well be
conditions for which symptoms alone, without a diagnosis, may well be of little
practical use to scientists looking to understand what may cause a disease. But that
is not the case here, where the technique at issue has “attract[ed]” “[w]idespread
acceptance” in the relevant scientific “community,” Daubert, 509 U.S. at 594
(internal quotation marks omitted), including in work by both the FDA and
Defendants-Appellees’ own scientists outside of this litigation. 15
To restate the obvious, we do not conclude that we think the structure
Baccarelli employed for his Bradford Hill analysis is the best one, nor do we have
any prediction, one way or another, about whether a jury will find it persuasive.
Those are not the issues before us. The single, multiple-outcomes analysis may
well prove unconvincing to a jury for precisely the reasons that the district court
identifies, but that does not render the expert opinion excludable for the purposes
of Rule 702.
15 The district court also said the multiple-outcomes analysis should be excluded because it “obscure[s]
limitations in the scientific literature” such that, if the analysis were focused on a single disorder, the
reliability of such testimony would be easier to determine. 707 F. Supp. 3d at 339. But the concern that
the multiple-outcomes analysis prevents a factfinder from disentangling the studies assessing ASD from
those assessing ADHD is undermined by the district court’s own opinion doing exactly that. While it
might have been easier to sort through the Rule 702 motions if Baccarelli’s Bradford Hill analysis had
treated ADHD and ASD separately, the district court still ably sifted through the various studies, opined
on the limitations in the literature regarding ASD, and thoroughly analyzed the issue of genetic
confounding.
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b. Bradford Hill Factors
The district court next held that, even if it were methodologically reliable
for Baccarelli to assess multiple outcomes and to rely on studies that used both
diagnostic and symptomatic endpoints, Baccarelli applied that method in an
unreliable manner. We find that the court, in so holding, improperly (i) substituted
its own definitions of certain Bradford Hill factors for those of other
epidemiologists, and (ii) penalized Baccarelli for drawing plausible conclusions
well within “the range where experts might reasonably differ.” Kumho Tire, 526
U.S. at 152. What follows is a non-exhaustive discussion of instances in which the
district court overstepped its gatekeeping function.
i. The definition of individual factors
The district court’s discussion of Baccarelli’s testimony on dose response,
biological plausibility, strength, and specificity illustrate the first point. On dose
response, the district court faulted Baccarelli for failing to grapple with “a key
issue in the underlying studies,” which was that “none were able to record the
actual dosages taken by pregnant women.” 707 F. Supp. 3d at 350 (emphasis in
original). But the district court cited no scientific authority for the proposition that
dose-response analysis requires data on the precise doses that study participants
ingested. And multiple meta-analyses of the same literature that Baccarelli
analyzed made dose-response judgments similar to his. See, e.g., Alemany 2021
(recognizing that multiple prior studies found a dose-response relationship); Ricci
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2023 16 (finding that the association between acetaminophen exposure and ADHD
was strongest in children with the highest duration of exposure, “suggesting a
dose-response effect”). Indeed, the district court noted that “[t]he closest
approximation to dose in the underlying studies is days of use.” 707 F. Supp. at 350
(emphasis added). In other words, the district court faulted Baccarelli for
analyzing acetaminophen dose response in exactly the manner used by scientists
in his field, utilizing the best available proxy for data that would rarely if ever be
available in observational studies, and that for ethical reasons could not be
collected by a controlled experimental study.
On biological plausibility, the district court discredited Baccarelli’s
testimony because “[a]t present, the precise physiological process or processes by
which these conditions, or NDDs more generally, develop are unknown.” Id. It
found that because “[s]cientists have at best developed hypotheses” as to the
biological mechanisms by which acetaminophen causes ADHD and ASD,
“Baccarelli’s conclusion that this factor is satisfied . . . fail[s] to reflect a reliable
application of scientific principles.” Id.
There is no doubt that any causal relationship between acetaminophen and
ADHD and ASD is quite uncertain. But the Bradford Hill methodology does not
require certainty regarding the mechanisms by which exposure causes the
condition of interest—indeed, if such proof were available, there would be no need
for the multi-factor epidemiological inquiry in the first place. The Bradford Hill
16Ricci et al., In Utero Acetaminophen Exposure and Child Neurodevelopmental Outcomes: Systematic Review and Meta-Analysis, 37 Paediatric Perinatal Epidemiology 473 (2023).
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methodology asks no more than whether there is some such “biologically plausible
mechanism.” App’x 1906 (emphasis added). 17 In other words, it “asks whether the
hypothesized causal link is credible in light of what is known from science and
medicine” about the alleged toxin and its biological effects. Milward v. Acuity
Specialty Prods. Grp., Inc., 639 F.3d 11, 25 (1st Cir. 2011). And Baccarelli’s approach
to biological plausibility, in this respect, finds support in the practices of other
epidemiologists outside the courtroom, in assessing both whether acetaminophen
exposure causes ADHD and ASD, 18 and in investigations into the potential causes
of other conditions. 19 Baccarelli hence applied the biological plausibility criterion
with “the same level of intellectual rigor that characterizes the practice of an
expert” in his field. Kumho Tire Co., 526 U.S. at 152. Of course, the jury remains free
to consider the fact that scientists have not definitively identified a mechanism of
causation and to assign the weight to that fact it deems appropriate.
17 See also Sir Austin Bradford Hill, The Environment and Disease: Association or Causation?, 58 Proc. Royal Soc’y Med. 295, 298 (1965) (“It will be helpful if the causation we suspect is biologically plausible. But this is a feature I am convinced we cannot demand. What is biologically plausible depends upon the biological knowledge of the day.”).
18 See, e.g., Gustavson et al., Acetaminophen Use During Pregnancy and Offspring Attention Deficit
Hyperactivity Disorder -- A Longitudinal Sibling Control Study, 1 JCPP Advances at 2 (2021) (“Biologically plausible mechanisms for effect on fetal neurodevelopment include oxidative stress and neurotoxicity.”); Chen et al., Prenatal Exposure to Acetaminophen and the Risk of Attention-Deficit/Hyperactivity Disorder: A Nationwide Study in Taiwan, 80 J. Clin. Psychiatry at 5 (2019) (identifying “[s]everal biologically plausible contentions,” including that “acetaminophen may alter the intrauterine immune system and increase the predisposition for oxidative stress and inflammation”).
19 See, e.g., Bello et al., Does Human Papillomavirus Play a Causative Role in Prostate Cancer? A
Systematic Review Using Bradford Hill’s Criteria, 15 Cancers at 7 (2023) (finding biological plausibility satisfied in part based on “the oncogenic role of HPV in other types of cancers”); Davidson & Smith, The Bradford Hill Criteria and Zinc-Induced Anosmia; A Causality Analysis, 136(7) Archives of Otolaryngology – Head Neck Surgery 673, 675 (2010) (concluding that biological plausibility is satisfied based on experimental animal evidence showing that zinc exposure causes temporary anosmia).
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In its analysis of strength, the district court first noted that most of the
studies dealing with ADHD and/or ASD show a risk ratio of between 1.0 and 2.0, 20
which is lower than the ratios present in other cases in this Circuit. See, e.g., In re
Mirena IUS Levonorgestrel-Related Prods. Liab. Litig. (No. II), 341 F. Supp. 3d 213, 243
(S.D.N.Y. 2018), aff’d 982 F.3d 113 (2d Cir. 2020) (risk ratios of 3.90 and 7.69);
Daniels-Feasel v. Forest Pharmaceuticals, Inc., No. 17-cv-4188, 2021 WL 4037820, at
*8 (S.D.N.Y. Sept. 3, 2021), aff’d No. 22-146, 2023 WL 4837521 (2d Cir. 2023) (risk
ratio of 2.2). The district court next found that Baccarelli improperly found support
for the strength criterion in meta-studies that synthesized underlying studies with
varying levels of statistical significance. For example, the district court noted that
while the Alemany 2021 meta-study found an overall risk ratio of 1.19 for ASD,
only one of the six underlying studies it considered found a statistically significant
risk ratio. The court concluded from this that it was “misleading to characterize
the highly heterogenous body of literature as reporting consistent statistically
significant associations.” 707 F. Supp. 3d at 347.
But Baccarelli explained that while the risk ratio reported by each study is
relatively low, ranging from 1.0 to 2.0, there is “no general rule for how large an
association needs to be” to satisfy this criterion. App’x 1901; see also Hardeman v.
Monsanto Co., 997 F.3d 941, 966 (9th Cir. 2021) (rejecting contention that plaintiff’s
experts were wrongfully admitted because they failed “to present a study with an
adjusted odds ratio above 2.0” and recognizing that “a hardline increase in a risk
20 A risk ratio refers to “[t]he ratio of the risk of disease or death among people exposed to an agent to the risk among the unexposed.” RMSE at 1019. For example, a risk ratio of 2.0 means that “the disease occurs twice as frequently among” people exposed to the agent as compared to those not exposed. Id.
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statistic, or even an adjusted odds ratio above 2.0, is [not] necessary for finding a
strong association”), abrogated on other grounds by Monsanto Co. v. Durnell, No. 24-1068, 2026 WL 1825691 (June 25, 2026). He further noted that the risk ratio for
ADHD and ASD is stronger than others that epidemiologists have generally
agreed plausibly reflect causal effects. Among these are the links between air
pollution and mortality, between smoking and heart disease, and between
secondhand smoke and lung cancer. App’x 1901. In other words, Baccarelli
demonstrated that it is not inconsistent with epidemiological practice to conclude
that the strength condition is satisfied with a risk ratio between 1.0 and 2.0.
Moreover, Baccarelli correctly stated that it is not inconsistent with
epidemiological practice to cite a meta-study—the express purpose of which is to
“provide a more precise estimate of the true effect size of an association, by
synthesizing data from multiple studies and reducing random error”—in support
of a causal conclusion, even if the individual cohorts in that meta-analysis do not
produce statistically significant results. App’x 1807.
Baccarelli additionally testified that the strength criterion is further
supported because the magnitude of risk measured in many of the studies he
assessed may have been dampened due to their reliance on maternal self-reporting
of acetaminophen, which likely underestimated the true exposure. App’x 1901. In
support of this conclusion, he cites Baker 2020 21, a study that directly measured
the presence of acetaminophen in infant meconium (an infant’s first feces that can
21 Baker et al., Association of Prenatal Acetaminophen Exposure Measured in Meconium with Risk of Attention-Deficit/Hyperactivity Disorder Mediated by Frontoparietal Network Brain Connectivity, 174(11) JAMA Pediatrics 1073 (2020).
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reflect prenatal exposure) and which reported a risk ratio of 2.43. The district court
criticized Baccarelli for relying on Baker 2020, despite recognizing it as “wellregarded,” because that study had a “wide confidence interval” (spanning 1.41 to
4.21), which the district court held “undercut[] its reliability.” 707 F. Supp. 3d at
348. But although the width of a confidence interval is relevant to the reliability of
a risk ratio estimate, that does not warrant the wholesale rejection of Baker 2020.
Rather, that is a fact for a factfinder to consider in assessing the persuasiveness of
the study.
Finally, on specificity, the district said that in light of the “complexity”
suggested by the “absence” of specificity, Baccarelli neglected to “consider
whether the studies upon which [he] is relying adequately considered
confounding effects, among other things.” 707 F. Supp. 3d at 349. That gives more
weight to the specificity factor than many epidemiologists do. Baccarelli explained
that even if the specificity criterion is not satisfied, it is considered “all but
irrelevant” to modern epidemiologists. App’x 1904; see also RMSE at 985
(describing the specificity factor as “highly debatable”); VanderWeel et al., Causal
Inference and Scientific Reasoning, in Lash’s Modern Epidemiology 67 (4th ed. 2020)
(recognizing that “many behavioral, environmental, social, and genetic risk factors
have been causally linked to more than one health outcome”). The district court
cited no authority for the proposition that, in a Bradford Hill analysis, lack of
specificity necessarily indicates a dubious causal analysis. Where, as here, the
causes of a disorder are multifactorial, lack of specificity does not weigh
significantly against an ultimate conclusion of plausible causality. See App’x 1904.
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ii. Conclusions on contested scientific questions
The second group of errors in the district court’s analysis of Baccarelli’s
Bradford Hill testimony concerns instances in which the district court arrives at a
definitive interpretation of a given study that reasonable scientists could interpret,
and indeed have interpreted, differently. The district court’s analysis of these
issues is couched in terms of scientific “rules” of interpretation that it decided
Baccarelli did not follow: first, that he engaged in cherry-picking, and second, that
he exceeded the limitations that authors placed upon their own studies. While
these court-created rules address legitimate concerns pertaining to the reliability
of expert testimony, the court applied them in a manner inconsistent with how
scientists practice.
Take cherry-picking. Cherry-picking occurs when an expert points to data
that support a particular position while ignoring or discrediting data that
contradict it. It is not cherry-picking for an expert to prefer one study to another
when he offers a coherent, scientifically plausible reason for the preference. This
issue is illustrated by the district court’s discussion of Baccarelli’s testimony on
genetic confounding (that is, whether any observed association between prenatal
acetaminophen and ASD and ADHD can be attributed to genetics). No one,
including Baccarelli, denies that genetics play a role in ADHD/ASD. But that does
not mean that the scientific literature has concluded that genetic confounding
accounts for all of the observed association. On this issue, reasonable scientists can,
and do, disagree. The district court characterized Baccarelli’s reasonable
interpretations of studies addressing genetic confounding as cherry-picking. In
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doing so, the district court ignored the detailed explanations Baccarelli provided
for his interpretations. That was error.
The district court first took issue with Baccarelli’s treatment of Brandlistuen
2013 22 and Gustavson 2021, two sibling-control studies designed to control for the
effects of genetic confounding. The two studies examined the same population
several years apart. Brandlistuen 2013, the earlier study, measured ADHD
symptoms as its endpoint, while Gustavson 2021, the later study, measured
ADHD diagnoses. Brandlistuen 2013 found an association that persisted even after
controlling for genetic confounding using a method called a “sibling-control”
analysis, while Gustavson 2021 did not. The district court criticized Baccarelli for
interpreting these studies as supporting his conclusion that genetic confounding
does not account for the entire association at issue, stating that he did not “explain
his disparate treatment of the two studies.” 707 F. Supp. 3d at 353. But Baccarelli
did: In his report, he explains that results from sibling-control studies are biased
toward the null—that is, they understate the true associations at issue—because
they control for both the genetic factors that directly cause the disease outcome at
issue, and the genetic factors by which the agent at issue may cause the disease
outcome. Baccarelli also noted that the authors of Gustavson 2021 acknowledged
this as a limitation in their analysis, and that this limitation “may lead to
underestimation of association estimates.” App’x 1860 (internal quotation marks
omitted). Moreover, Baccarelli does not overstate the value of Brandlistuen 2013
22Brandlistuen et al., Prenatal Paracetamol Exposure and Child Neurodevelopment: A Sibling-Controlled Cohort Study, 42(6) Int’l J. Epidemiology 1702 (2013).
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and Gustavson 2021 to his ultimate conclusion, saying only that “[i]t is unclear
whether these studies provide any meaningful evidence regarding the role of
unmeasured or genetic confounding.” App’x 1866. It was thus error to charge
Baccarelli with cherry-picking in this part of his testimony.
Another example of a misplaced charge of cherry-picking is the district
court’s treatment of Baccarelli’s testimony concerning Ystrom 2017 23. That study
used paternal acetaminophen use as a negative control meant to isolate the effect
of acetaminophen on ADHD from familial effects, since, as the Ystrom authors
hypothesized, “[i]f the association is due to unobserved familial factors (e.g.,
genetic factors), paternal use of acetaminophen may also be associated with
ADHD in a way similar to maternal use of acetaminophen.” 24 The authors found,
among other results, an association between paternal preconceptual use of
acetaminophen and ADHD. The district court suggested that Baccarelli’s
discussion of this study is not “scientifically sound” because he “speculates that
paternal use might have [instead] been serving as an imperfect proxy for maternal
use because, among other things, ‘fathers and mothers often share medications
and medicine cabinets.’” 707 F. Supp. 3d at 353, quoting App’x 1858. That
speculation, the district court decided, was another instance of Baccarelli’s
“dismissal of evidence that challenges his thesis.” Id.
23 Ystrom et al., Prenatal Exposure to Acetaminophen and Risk of ADHD, 140(5) Pediatrics 1 (2017).
24 See, e.g., Sanderson et al., Negative Control Exposure Studies in the Presence of Measurement Error: Implications for Attempted Effect Estimate Calibration, 47(2) Int. J. Epidemiology 587 (2018) (discussing negative control experiments).
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But the district court’s charge misrepresents the nuance with which
Baccarelli addressed this study. Baccarelli explained, and the authors of Ystrom
2017 acknowledged, that “the mechanics of the ADHD effect of paternal
acetaminophen use before pregnancy are unclear but . . . may be due to male
germ-line epigenetic effects as described in endocrine disruption effects of
acetaminophen on the human testis.” App’x 1858 (internal citations omitted). In
other words, paternal preconceptual acetaminophen use may itself also be
causally associated with ADHD in a manner that suggests that it should not
operate as a valid negative control. And although Baccarelli’s reference to shared
medicine cabinets may not have used the most “scientific” language, his
underlying point is not unreasonable. The study design used paternal
acetaminophen exposure as a negative control but also found that paternal use
was correlated with maternal use—so, as Baccarelli explains, if paternal use is
actually acting as a proxy for maternal use, then the association that was found
between paternal use and ADHD could be consistent with a causal relationship
between maternal use and ADHD. Baccarelli’s consideration of this study is not
an example of results-driven analysis of the sort that would render his testimony
unreliable. Again, we emphasize that we are not saying that the district court’s
questioning of Baccarelli’s logic is itself unreasonable; still less are we suggesting
that similar arguments that may be made by Defendants-Appellees’ experts
(which are not before us for review, and the admissibility of which has not been
decided by the district court) would be improper, unreliable, or “unscientific.” The
point is that these are arguments and counter-arguments of the sort that scientists
can and do make when engaging in professional academic debates about contested
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scientific questions. The gatekeeping role of the district court is to shield the jury
from testimony by even qualified experts that is outside the boundaries of
ordinary scientific discourse and thus constitutes “junk science.” It is not to
adjudicate which points in the debate are more persuasive; that is the role of the
jury. 25
The second way that the district court censures Baccarelli for drawing
reasonable conclusions is by misapplying the rule that when an expert “relies on
the studies of others, he must not exceed the limitations the authors themselves
place on the study.” Daniels-Feasel, 2021 WL 4037820, at *4 (internal quotation
marks omitted). It is important that when experts use work produced by other
scientists, they do not paper over the limitations inherent in those studies. But the
district court stretches that maxim too far in the context of a Bradford Hill analysis,
which is a methodology for synthesizing many scientific results where no single
one definitively establishes or negates a causal relationship. A study that does not
itself prove causation, because of its own limitations, can nonetheless serve as a
reliable link in a chain supporting a particular Bradford Hill factor. And that study,
This understanding is fully consistent with the 2023 amendments to Rule 702. Those amendments
25
sought to correct the “hands-off” approach to expert testimony that the Rules Committee perceived had been applied by many district courts. See Fed. R. Civ. P. 702 advisory committee’s note to 2023 amendment (noting that many district courts improperly treated “critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology” as “questions of weight and not admissibility”). But the principle that a district court must take a hard look at the experts’ applications of accepted methods does not justify disregarding another principle—that the district court cannot decide a Daubert motion based on its own judgment of an expert’s persuasiveness. Instead, the district court should strike a middleground between those two principles, taking a hard look at the expert’s opinions to ensure that they are reliable without necessarily addressing whether they are correct. We recognize that this is easier said than done, but we trust the district courts to perform this inquiry and afford them substantial discretion in doing so.
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in combination with other studies that address that limitation (and indeed may
have other deficiencies of their own), may ultimately support a conclusion that
points toward causation. This issue is best illustrated by the district court’s
treatment of the consistency and strength Bradford Hill factors allegedly
supporting Baccarelli’s conclusion.
On the issue of consistency, the district court concluded that limitations in
each of the studies on prenatal acetaminophen use and ASD precluded Baccarelli
from finding that the consistency criterion is satisfied for ASD. 707 F. Supp. 3d at
343–44. In doing so, however, the district court unreasonably discounted
Baccarelli’s explanation of why those limitations should not bar a finding of
consistency. And it ignored the opinions of the authors of those studies, and of
independent scientists who reviewed those studies, that they could support a
finding of consistency.
Take the first of these studies, Ji 2020, which measured the association
between acetaminophen detected in the umbilical cord at birth and ASD diagnosis
and found a statistically significant increase in ASD diagnoses among children in
the highest tertile of acetaminophen exposure, compared to the lowest. Id. at 343.
Baccarelli did acknowledge the limitations of this study: for example, that
acetaminophen detected in the umbilical cord at the time of birth would reflect
only peripartum exposure (i.e., exposure at the time of or in the hours before birth),
and acetaminophen was detected in 100% of mothers measured, “which
contradicts the common knowledge that only about half of pregnant women take
acetaminophen, and certainly much less during the peripartum period.” App’x
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1833. That, according to Baccarelli, could mean that that the study included falsepositives based on environmental exposures to acetaminophen (e.g., in drinking
water) or that the authors included values detected below the assay’s detection
limit (i.e., the minimum concentration that can, in a statistically significant
manner, be distinguished from zero). See App’x 1843–44. But he went on to point
out why the study’s limitations would not detract from interpreting the study as
some support for the consistency criterion. For example, he explained that the
measurement of acetaminophen “may not fully reflect prenatal exposure to
acetaminophen”—which would mean that Ji 2020 might actually underestimate the
effect of total prenatal exposure. App’x 1844. And on the issue of extra-sensitive
acetaminophen detection, he noted that because the authors performed a tertile
analysis on low, medium, and high exposure, false positives with minimal levels
of exposure would have been grouped together in the low category—which would
have protected against bias introduced by those false positives. See App’x 1844.
To be clear, the limitations in Ji 2020 are not insignificant and certainly go to
the weight that the fact-finder may attribute to Baccarelli’s testimony on this
evidence. But they do not render the study “largely irrelevant,” as the district court
suggests. 707 F. Supp. 3d at 343. Nor do they prevent Baccarelli from interpreting
the study as supportive of the consistency criterion. Baccarelli’s reliance on Ji 2020,
like the rest of his opinion, can be tested by cross-examination, contested by
opposing experts who may evaluate the evidence differently, and forcefully
advocated for and against by the parties’ attorneys. We hold only that Baccarelli’s
report acknowledges the limitations of the study and gives a scientific explanation
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of his reasons for finding the study consistent as demanded by the accepted
Bradford Hill methodology.
The second study, Liew 2016a 26, found an association between
acetaminophen and ASD with hyperkinetic disorder (“HKD”), a condition
recognized under the World Health Organization’s International Classification of
Diseases that is analogous to a severe ADHD diagnosis under the DSM. See Liew
2016a at 952. That study too has limitations. For example, it found no association
between acetaminophen and ASD without HKD. And in its analysis of trimesterspecific exposure, it found statistically significant associations for acetaminophen
use in all three trimesters, and the first and second trimesters combined, but not
the second and third combined or first and third combined. Such limitations, the
district court reasoned, constitute conflicting results that undermine consistency.
See 707 F. Supp. 3d at 343–44. But again, Baccarelli addressed those limitations.
And for reasons he explains, he concluded that they did not preclude a finding of
consistency with other literature. For example, he adopted the authors’ own
acknowledgment that ASD with hyperkinetic features may be a subtype of ASD,
rather than a different diagnosis altogether. App’x 1841. And, with respect to the
issue of variable trimester-specific results, Baccarelli explained that “a set of results
is consistent even if some of the results are not statistically significant.” App’x
26 Liew et al., Maternal Use of Acetaminophen During Pregnancy and Risk of Autism Spectrum Disorders in Childhood: A Danish National Birth Cohort Study, 9 Autism Rsch. 951 (2016). The district court referenced three articles published by Liew in 2016. We need only address the one it referred to as “Liew 2016a.”
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1769. 27 Indeed, Liew 2016a found uniformly positive associations with
acetaminophen exposure by trimester and ASD, ranging from 1.03 (first trimester
exposure only) to 1.39 (exposure in all three trimesters). The varying statistical
significance of those results does not necessarily render them inconsistent for the
purpose of the Bradford Hill analysis. As a result, it was not improper for
Baccarelli to cite Liew 2016a in support of the consistency criterion.
In the end, Baccarelli’s testimony on consistency is consistent with the
findings of the studies that he cites. For example, the authors of Ji 2020 noted that
its findings “support previous studies regarding the association between prenatal
and perinatal acetaminophen exposure and childhood neurodevelopment risk.” Ji
2020 at 180. The authors of Avella-Garcia 2016, another study he examines,
conclude that their findings “agree with reports of an association between prenatal
exposure to acetaminophen and ADHD behaviours, diagnosis or medication use
in childhood.” Avella-Garcia 2016 at 1993. And the authors of Liew 2016a noted
that their findings built upon earlier work showing that “prenatal exposure to
acetaminophen may increase[] the risk of developing hyperkinetic disorders and
social and behavioral problems.” Liew 2016a at 954. That the above scientists
operating outside the courtroom also interpret these studies as consistent with
other findings of an association supports Baccarelli’s conclusion that the
consistency criterion is sufficiently satisfied.
27See also App’x 1799–1800 (“[E]pidemiologists are often less concerned with the precise p-value [which may suggest a yes/no answer that cannot be inferred from a single study] and more interested in understanding whether the results are consistent with what we know about the biology of the disease or exposure being studied.”).
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To be clear, an expert’s testimony is not reliable simply because other
scientists have expressed the same view in a peer-reviewed publication. Just as
evidence of disagreement among scientists as to the correct interpretation of a
body of evidence does not necessarily render an expert’s opinion unreliable,
expressions of support for an opinion, without more, do not necessarily qualify
the opinion as reliable. Rather, the district court must take a “hard look” at the
literature an expert cites to determine whether that literature actually reflects how
experts operate in the field or if it merely presents a one-off opinion that the field
has roundly rejected or would be likely to. And that, we believe, the district court
did not adequately do by substituting its own judgment of the evidence on an issue
where scientists may reasonably disagree.
Further, the district court similarly censured Baccarelli’s discussion of the
strength factor. There, Baccarelli opined that because the magnitude of the risk
ratio in many studies may have been dampened due to reliance on maternal selfreporting, the strong association found in Baker 2020—which directly measured
acetaminophen levels in the child’s meconium—provided strong evidence in
support of the strength criterion. The district court noted, however, that that study
“had not controlled for confounding by either indication or genetics.” 707 F. Supp.
3d at 348. And it held that Baccarelli’s testimony on the strength criterion was
insufficient in part because he failed to examine that limitation.
There are two problems with that holding. First, Baccarelli did address the
issue of confounding in the Baker 2020 study. He explained that the effect size
found in Baker 2020 is “so large” that “residual confounding by uncontrolled
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factors is a less likely explanation for the identified associations”—a conclusion
that the authors of the Consensus Statement agreed with. App’x 1902 (internal
quotation marks omitted). And second, while Baccarelli did not include an
extensive discussion of genetic confounding in his analysis of the strength
criterion, he did perform that analysis elsewhere in his expert testimony. For that
reason, it does not surpass the limitations in Baker 2020 to conclude that it, in
combination with other studies that do control for confounding, can be relied on
in support of a plausible causal relationship.
For the above reasons, we conclude that the district court erred in excluding
Baccarelli’s testimony. While the district court’s reasoning was considered and
extensive, its analysis frequently overstepped its gatekeeping function by
substituting its own judgments about the requirements of causality and the
persuasiveness of various studies for those of scientists operating in the field. As
a result, it ignored that Baccarelli acted in accordance with how scientists approach
the question of causation using the Bradford Hill method and have previously
interpreted the literature upon which he relied. When an expert reliably applies a
scientifically accepted methodology on an issue that is reasonably subject to
debate, it is for the jury to decide the opinion’s correctness. 28
28 Because we conclude that Baccarelli’s Bradford Hill analysis is admissible, we need not address Baccarelli’s Navigation Guide, the application of which yielded the same conclusion. We express no opinion on the reliability of the Navigation Guide as a methodology or Baccarelli’s application of it.
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2. Hollander
Hollander’s initial report focused primarily on the appropriateness of
analyzing ASD, ADHD, and related NDDs together in a transdiagnostic analysis,
providing support for Baccarelli’s Bradford Hill analysis. In doing so, he explained
the “considerable genetic, neuropsychological and clinical overlap” between the
two disorders. App’x 2533. The district court excluded that opinion in its entirety. 29
It acknowledged that Hollander offered a “reliable assessment of the literature”
on the overlap between ASD and ADHD but faulted him for failing to explain how
a transdiagnostic Bradford Hill analysis should be structured and concluded that
the studies he cited did not adequately support the conclusion that the scientific
community would accept a Bradford Hill analysis that assessed ADHD and ASD
together. 707 F. Supp. 3d at 364. But, as explained above, scientists have in fact
analyzed the disorders together, and Hollander’s discussion, while not necessary
to justify Baccarelli’s transdiagnostic approach, provides helpful context as to the
relationship between ASD and ADHD.
In addition, the district court dismissed Hollander’s reliance on certain
scholarship explaining the value of a transdiagnostic perspective because those
articles were “irrelevant” to the “transdiagnostic Bradford Hill analyses presented
by” Baccarelli and Cabrera. 707 F. Supp. 3d at 366. But the district court adopted
an unduly narrow definition of relevance. For example, Hollander cites
29 Hollander also offered a biological plausibility opinion in his opening report and a Bradford Hill analysis in his rebuttal report, both of which the district court excluded. Plaintiffs-Appellants do not appeal those exclusions here, so we do not discuss them.
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Vandewouw 2023 30 in support of considering ADHD and ASD together in a single
causal analysis. Proceeding from the understanding that ASD, ADHD and OCD
“are highly heterogenous in biology and phenotype [i.e., observable
characteristics] within each condition and significantly overlapping,” the study
reviewed brain scans of individuals diagnosed with those conditions and found
that differences in brain function corresponded to differences in behavior (e.g.,
hyperactivity and impulsivity) but not differences in clinical diagnoses. Thus, the
authors concluded that their finding put pressure on the field’s reliance “on
diagnostic categories, which have increasingly been shown not to reflect distinct
biological and phenotypic constructs.” The district court criticized Hollander’s
reliance on the study because, while it is generally supportive of his position, it
did not establish in definitive terms that proof of a causal relationship between
acetaminophen and ADHD suffices as proof of a causal relationship between
acetaminophen and ASD. 707 F. Supp. 3d at 366. But as Hollander’s testimony
shows, scientists in this field require no such proof to conduct a transdiagnostic
analysis. As he explains, the transdiagnostic approach may be appropriate when,
as here, “[t]he biological factors behind the[] symptoms cut across traditional
diagnostic boundaries” such that “a holistic and transdiagnostic approach . . . is
necessary to fully understand the highly heterogenous conditions” at issue. App’x
2482–83. The district court therefore overstepped its gatekeeping function in
30Vandewouw et al., Identifying Replicable Subgroups in Neurodevelopmental Conditions Using RestingState Functional Magnetic Resonance Imaging Data, 6(3) JAMA Network Open: e232066 (2023).
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excluding Hollander’s testimony on the appropriateness of considering ASD,
ADHD, and NDDs in a single Bradford Hill analysis.
3. Pearson
Pearson opined that a causal relationship between prenatal acetaminophen
exposure and ADHD and ASD is consistent with existing biological knowledge
based on preclinical literature, focusing primarily on animal studies. He concluded
that the majority of preclinical studies demonstrate that acetaminophen has
disruptive effects on neurodevelopment through multiple independent and
interacting mechanisms, and that these studies support findings of a possible
causal association between prenatal acetaminophen use and ADHD and ASD
observed in epidemiological studies of humans. In his report, he acknowledges
inconsistencies among the studies that he analyzes, including in the directionality
of the effects observed—for example, that acetaminophen exposure may cause an
increase in a particular behavior among some subjects, and a decrease in that
behavior among other subjects. He explains, though, that “the heterogeneity of the
results is not a reason to dismiss the effects of APAP shown in these individual
studies,” because “neurodevelopmental perturbation of prenatal APAP can
manifest in various ways in terms of directionality.” App’x 2144. The district court
decided that this conclusion rendered Pearson’s testimony unreliable because it
amounted to an unreasonable conclusion that “heterogeneity and outright
inconsistency of results don’t ultimately matter,” and because his conclusion to
this effect was not adequately supported. 707 F. Supp. 3d at 369.
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The district court erred in excluding Pearson’s testimony on these grounds.
Admittedly, it seems counterintuitive, for example, that a study observing a
decrease in hyperactivity among acetaminophen-dosed rodents may evidence that
the same treatment causes an increase in ADHD among humans. But Pearson’s
point is not unreasonable: Any behavioral evidence of neurodevelopmental
change attributable to acetaminophen supports the conclusion that
acetaminophen disrupts neurodevelopment. And his testimony to that effect is
more nuanced and limited than the district court concludes.
First, Pearson was not without support for his contention. He cited Tyl
2008 31, a guidance document that provides a framework for reliably interpreting
animal studies. That framework explains, as Pearson quotes, that “[v]ariability” in
test results “can be interpreted as an endpoint itself rather than an indicator of
study quality or reliability, and may be the first or most sensitive indicator of a
response.” App’x 2096.
Moreover, Pearson does not suggest that such inconsistent results
nonetheless provide support for a causal conclusion. Rather, Pearson asserts that
when such inconsistencies appear, it is appropriate “to try to understand and
explain the reasons for them, possibly deciding if more than one answer to the
formulated problem is plausible.” App’x 2098. This is consistent with Tyl 2008’s
guidance, which Pearson cites, that “[p]roper interpretation involves expert
31Tyl et al., Identification and Interpretation of Developmental Neurotoxicity Effects: A Report from the ILSI Research Foundation/Risk Science Institute Expert Working Group on Neurodevelopmental Endpoints, 30 Neurotoxicology and Teratology 349 (2008).
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judgment that takes into account both the biological and statistical significance of
the results.” App’x 2096, 4875.
Pearson took exactly that approach in evaluating the studies. For example,
in his analysis of in vitro/ex utero studies examining the relationship between
acetaminophen exposure and neurotoxicity, he identified three studies that found
no evidence of neurotoxicity and five studies that found evidence of neurotoxicity.
App’x 2140. He concluded that, overall, those studies supported an association
between acetaminophen exposure and neurotoxicity. But he did not ignore the
studies that seemed to contradict that conclusion. For example, he explained that
one study that found no association failed to evaluate metabolized
acetaminophen, which provides a separate hypothesized mechanistic pathway.
App’x 2135. Another study found no neurotoxic outcomes in rat cortical cultures
where APAP was administered on the third day in vitro. Pearson noted, however,
that the relevant cortical cultures do not mature until at least the seventh day in
vitro, such that testing on the third day is “potentially too early or at least might
need to be interpreted carefully.” App’x 2137. And the third study finding no
neurotoxicity was designed to test the effect of other chemicals, with
acetaminophen acting as a putatively non-neurotoxic control, such that the
treatment dose size was too small to prompt neurotoxic effects. App’x 2137.
Whether Pearson’s conclusions are ultimately persuasive is not for us to decide.
What we do decide is that he cannot fairly be found to have ignored evidence
contrary to his conclusions, or engaged in unscientific sophistry, where he did
discuss the contrary evidence and presented his reasons for discounting it, simply
because a court disagrees with those reasons.
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4. Cabrera
Cabrera testified on the reproductive, developmental, and
neurodevelopmental toxicity of prenatal acetaminophen exposure. First, Cabrera
described a proposed biological mechanism by which acetaminophen could cause
ADHD and ASD. Cabrera based this mechanism on an Adverse Outcome Pathway
(“AOP”) addressing oxidative stress. An AOP is a model which, in Cabrera’s case,
was published by the Organization for Economic Co-operation and Development
(“OECD”). It describes a logical sequence of causally linked events at various
levels of biological organization, beginning with exposure to a particular stressor
and leading to an adverse health effect. 32 Cabrera first assessed the evidence for
each step in the causal pathway using a weight-of-the-evidence approach and then
opined that the association between prenatal acetaminophen exposure and ADHD
and ASD was biologically plausible. Plaintiffs-Appellants did not fully brief the
district court’s exclusion of that testimony, so we do not address it here. 33
Next, Cabrera opined that each of the Bradford Hill criteria, with the
exception of specificity, were satisfied, thereby supporting a determination of
32 See OECD, OECD Series on Adverse Outcome Pathways, https://www.oecd.org/en/publications/oecd-series-on-adverse-outcome-pathways_2415170x.html. Other entities utilize AOP models as well. See, e.g., EPA, Adverse Outcome Pathways,
https://www.epa.gov/chemical-research/adverse-outcome-pathways (describing how the EPA uses AOP models); National Toxicology Program, U.S. Dep’t Health & Hum. Serv., Adverse Outcome Pathways, https://ntp.niehs.nih.gov/whatwestudy/niceatm/comptox/ct-aop/aop.
33 The district court determined that Cabrera’s weight-of-the-evidence analysis was applied
unreliably as to (1) the initiation of the AOP by acetaminophen exposure and (2) the connection between the final step in the AOP and diagnosis with ADHD and/or ASD. Plaintiffs-Appellants addressed the first gap in their appeal to this Court but not the second—so even if we were to reinstate the first link, the testimony could remain excluded.
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causality. The district court determined that this testimony was unreliable because
Cabrera failed to address the relationship between the factors or explain the
weight that he attached to each one. The district court was within its discretion in
doing so.
A scientist need not find every one of the nine Bradford Hill criteria satisfied
in order to opine reliably that a causal relationship exists. For example (and as
explained above with regard to Baccarelli), if found to be present, the specificity
criterion may be especially powerful evidence of causality, but its absence does
not exclude a finding of plausible causality. Similarly (and as also explained
above), while an especially strong association between an exposure and outcome
may serve as strong evidence of a causal relationship, a weak association doesn’t
necessarily mean that no causal relationship is present. That is particularly so
when there is a good explanation for the observed magnitude—such as broad
exposure to the toxin of interest, as in the case of air pollution or secondhand
smoke, or mediating factors that contribute to the ultimate outcome in some but
not all cases, such as genetic predispositions to a particular outcome. Because of
these nuances in the interpretation of the various Bradford Hill criteria, the factors
do not function as independent check-boxes, which are added to indicate the
strength of a causal relationship. Instead, as multiple courts have recognized,
expert analysis is necessary to understand how a particular combination of criteria
does or does not support the ultimate causal conclusion. See, e.g., Daniels-Feasel,
2023 WL 4837521, at *2, quoting Zoloft, 858 F.3d at 796 (“To ensure that the
Bradford Hill/weight of the evidence criteria ‘is truly a methodology, rather than
a mere conclusion-oriented selection process . . . there must be a scientific method
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of weighting that is used and explained.’”); In re Mirena (No. II), 341 F. Supp. 3d at
248 (“[W]here experts have claimed to apply Bradford Hill, courts have insisted
on a clear explication of the weighting assigned to the different criteria.”).
That analysis is particularly necessary to enable a factfinder to “conduct[] a
meaningful and informed review.” In re Mirena (No. II), 341 F. Supp. 3d at 249.
Were a factfinder to disagree with any one of Cabrera’s conclusions, for example,
she “would then need to assess whether to find general causation in the absence
of [that] factor[].” Id. By not “explain[ing] the relationship among the factors in his
analysis, however,” Cabrera “disable[s] such an inquiry.” Id. at 248. As a result,
the district court was permitted to conclude that Cabrera’s application of the
Bradford Hill method was unreliable and therefore inadmissible under Rule 702. 34
5. Louie
Louie discussed the dose and duration at which prenatal exposure to
acetaminophen increases the risk that a child will develop ADHD and/or ASD. He
concluded that the epidemiological evidence provides a “clear answer”: exposure
“for at least 28 cumulative days during pregnancy increases the risk of
ASD/ADHD development by two-fold as compared to offspring with no exposure
to acetaminophen.” App’x 2737, 2739. The district court excluded Louie’s
testimony on the grounds that he misstated certain evidence upon which he relied
34 Plaintiffs-Appellants admittedly offer some support in the record for the proposition that scientists do not necessarily regard such weighing as mandatory, but we cannot say that the district court exceeded its discretion in relying on a proposition amply and directly supported by caselaw and that is meant to help a factfinder evaluate an expert’s opinion.
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and failed to justify adequately the conclusions that he drew from his review of
the literature. The district court did not abuse its discretion in doing so.
First, Louie did not treat the studies he examined with requisite care. For
example, he concluded that “studies by Brandlistuen et al, Ystrom et al, and
Gustavson et al[] found that acetaminophen exposure beyond 28 days showed a
two-fold increased risk for childhood ADHD and ASD diagnosis.” App’x 2757.
Not so. Ystrom and Gustavson examined the relationship between acetaminophen
exposure and ADHD diagnosis, but not ASD. And Brandlistuen did not examine
diagnoses of either ASD or ADHD but instead looked at the relationship between
acetaminophen exposure and neurodevelopmental outcomes that are themselves
connected to ASD and ADHD. As discussed earlier, it is not necessarily unreliable
to consider ADHD and ASD together, or to examine symptomatic endpoints as
well as diagnostic ones. But it is proper to exclude testimony that mischaracterizes
a study.
Louie also failed to substantiate significant assumptions on which his
testimony rested. This error is most apparent in Louie’s conclusion pertaining to
the relevant exposure threshold. Louie testified that Brandlistuen 2013, Ystrom
2017, and Gustavson 2021 “all found that acetaminophen exposure beyond 28 days
showed a two-fold increased risk for childhood ADHD and ASD diagnosis.”
App’x 2757. But that is either a misinterpretation of those studies’ findings, or an
impermissibly imprecise extension of them. Each of those studies examined the
frequency of the measured outcome among mothers who ingested acetaminophen
for more than 28 or 29 days, compared to those who did not ingest any
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acetaminophen. The “twofold risk” that each study found, therefore, was not the
risk associated with ingesting acetaminophen with any frequency beyond the
twenty-eight day threshold, as Louie concludes. It was, instead, the average risk
associated with prenatal acetaminophen exposure among the group of mothers
who ingested acetaminophen for between twenty-eight and two-hundred eighty
days, the length of an entire pregnancy. As a result, the district court was entitled
to exclude Louie’s testimony because “there is simply too great an analytical gap
between the data and the opinion proffered.” Joiner, 522 U.S. 136, 146 (1997).
***
As explained above, the district court erred in dismissing expert testimony
from Baccarelli, Hollander, and Pearson. It therefore follows that the district court
also erred in granting summary judgment for Defendants-Appellees on the basis
that Plaintiffs-Appellants lacked any evidence of general causation.
C. Preemption
As an alternative basis for affirmance, Defendants-Appellees argue that
federal law preempts the failure-to-warn claims raised here. For the reasons
articulated by the district court in its excellent analysis of the issue, we do not
agree.
The Supremacy Clause provides that federal law “shall be the supreme Law
of the Land.” U.S. const. art. VI, cl. 2. Consistent with that command, “[w]here
federal and state law conflict—that is, where it is impossible for a party to follow
both federal and state law—state law must give way.” Gibbons v. Bristol-Myers
Squibb Co., 919 F.3d 699, 708 (2d Cir. 2019). “When addressing federal preemption
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questions, ‘we have long presumed that Congress does not cavalierly pre-empt
state-law causes of action.’” Marentette v. Abbott Laboratories, 886 F.3d 112, 117 (2d
Cir. 2018), quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). We therefore
“start with the assumption that the historic police powers of the States [are] not to
be superseded . . . unless that [is] the clear and manifest purpose of Congress.”
Wyeth, 555 U.S. at 565 (internal quotation marks omitted).
Defendants-Appellees contend that the FDA’s Pregnancy Warning
Regulation creates an exclusive process for adding pregnancy-related warnings to
drug labels. Thus they assert that they could give a specific warning on ADHD
and ASD if, and only if, the FDA requires one through the IAAA monograph or
an NDA. But this is plainly not what the text of the Pregnancy Warning Regulation
commands. The Regulation requires manufacturers to display the general warning
or, when one is provided by the FDA, a specific warning. It does not prohibit
manufacturers from adding supplemental warnings when additional, pregnancyrelated risks become known. And it does not modify the manufacturer’s ultimate
responsibility for the accuracy and adequacy of their label.
Defendants-Appellees look next to the Exact Language Regulation for
support. But the Exact Language Regulation applies only where exact language
has been specified, and as such, has no bearing on the addition of supplemental
warnings. Defendants-Appellees can readily comply with the Pregnancy Warning
Regulation and Exact Language Regulation, while warding off any failure-to-warn
claims, by providing the general pregnancy warning verbatim, as specified in 21
C.F.R. § 201.63, and a supplemental warning about any additional risk of ADHD
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and ASD. “Impossibility pre-emption is a demanding defense,” Wyeth, 555 U.S. at
573, and Defendants-Appellees have not shown that simultaneous compliance
with the federal Pregnancy Warning Regulation and state law warning
requirements is impossible. 35
D. Plaintiffs-Appellants’ Remaining Arguments
Plaintiffs-Appellants in Phippen make two additional arguments. First, they
contest the exclusion of their expert, Ness, whom they introduced to testify to
general causation and ADHD after the district court excluded Baccarelli,
Hollander, Pearson, Cabrera, and Louie. Second, they argue that even if all their
35 Defendants further argue that the history of the Pregnancy Warning Regulation shows that it preempts any requirements under state law. When the FDA first introduced the regulation in 1982, it explained that competing regulations from other states could “weaken [its] efforts to develop comprehensive national labeling and other requirements for OTC drugs” and wanted to ensure that manufacturers could “use the new FDA labeling without also being required to use the pregnancy-nursing warning required by any State.” Pregnant or Nursing Women, 47 Fed. Reg. 54750, 54756–57 (Dec. 3, 1982) Admittedly, those statements indicate that the agency may have thought it wise for the Pregnancy Warning Regulation to preempt other state-law requirements, but the plain language certainly does not require that conclusion. See Safe Haven Home Care, Inc. v. United States Dep’t of Health & Hum. Servs., 130 F.4th 305, 315 (2d Cir. 2025) (explaining that “we need not defer to the agency’s interpretation of its own regulation” when “the regulation is unambiguous”). Moreover, the agency’s subsequent actions appear to disavow any such intention. As noted above, in 1999, the agency issued a comprehensive rule governing OTC drug labeling, which, in part, amended the Pregnancy Warning to its present form. See Over the Counter Drugs, 64 Fed. Reg. at 13286. Prior to issuing the final rule, the agency had considered including a provision that would “preempt State and local rules that establish different requirements than those in the proposed rule, to promote a national, standardized format for all OTC drug product labeling.” Id. at 13254. It ultimately decided not to enact such a rule because Congress, in the interim, had passed the Food and Drug Administration Modernization Act of 1997 (“FDAMA”). That new law included a provision governing preemption, which the FDA decided it would rely on “in addressing preemption issues.” Id. at 13272, citing 21 U.S.C. § 379r. The provision bans states from enacting any labeling requirement “that is different from or in addition to” those required by the FDA, but it contains a carveout for state products liability law: “Nothing 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.” 21 U.S.C. § 379r(a), (e). The FDA’s decision to adopt the preemption approach outlined in the FDAMA thus undercuts any continued relevance of its 1982 statement.
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experts remain excluded, statements made by Defendants-Appellees’ expert,
Faraone, which are supportive of a possible causal relationship between prenatal
acetaminophen exposure and ADHD, would be sufficient to permit a jury to
conclude in Plaintiffs-Appellants’ favor on the issue of general causation.
Their first argument is one that, in the interest of judicial economy, we do
not reach today. The Phippen Plaintiffs-Appellants offered Ness only after the five
Rutledge experts were excluded, and only to support the limited proposition of a
causal relationship between prenatal acetaminophen exposure and ADHD.
Because Baccarelli, Hollander, and Pearson’s opinions are admitted, the Phippen
Plaintiffs-Appellants may well wish to proceed at this time without Ness’s
testimony. Moreover, without expressing any opinion about the correctness of the
district court’s rejection of Ness’s testimony, to the extent the Phippen PlaintiffsAppellants do decide to press ahead with Ness as an additional expert witness, the
district court, informed by our analysis above, may well choose to revisit its
conclusions about her testimony. We therefore express no opinion on its
admissibility, vacate the district court’s judgment in Phippen, and remand to allow
further proceedings consistent with this opinion.
Second, the Phippen Plaintiffs-Appellants contend that a jury could find
general causation based on certain statements made by Faraone, namely fragments
from his deposition, his scientific papers, and his popular science writings that,
read in isolation, could be construed as evidence in support of a causal relationship
between prenatal acetaminophen exposure and ADHD. Even if all of the
statements identified by Plaintiffs-Appellants are deemed admissible, this
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“concatenation of scientific propositions” falls far short of reliable expert
testimony upon which a jury may find general causation. In re Mirena IUS
Levonorgestrel-Related Prods. Liab. Litig. (No. II), 387 F. Supp. 3d 323, 354 (S.D.N.Y.
June 11, 2019). The district court correctly determined that, “[e]ven if cobbled
together, the Faraone [statements] do[] not constitute a Bradford Hill analysis in
support of plaintiffs’ thesis.” In re Acetaminophen, 2024 WL 3874183, at *4.
III. Conclusion
In this opinion, we have assessed the admissibility, and only the
admissibility, of the opinions of Plaintiffs-Appellants’ experts. We have not
assessed the weight they should be given by a factfinder. Defendants-Appellees’
experts are not before us. We do not prejudge whether the expert testimony
discussed here, when considered in light of the totality of the evidence, including
any admissible testimony from Defendants-Appellees’ experts, suffices to raise an
issue of fact for summary judgment purposes. Moreover, we have considered the
record as it was before the district court. Since the district court’s decision,
numerous relevant studies on this issue have been published. The district court
may consider it prudent to invite the parties and their experts to address those
new studies.
For the reasons explained above, we VACATE the district court’s judgments
and REMAND for further proceedings consistent with this opinion.
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