we instructed you about two selections within the In re Acetaminophen − ASD-ADHD Merchandise Legal responsibility Litigation, MDL No. 3043, that had been enhancements over final November’s debacle of a preemption resolution. At present we report on a call that makes it a trilogy. We’re nonetheless reserving judgment, however with hope.
This MDL is premised on a purported threat that in utero publicity to acetaminophen causes autism spectrum issues (ASD) and a focus deficit hyperactivity dysfunction (ADHD)—an allegation that’s skating on skinny causation ice. Plaintiffs have sued each the producer and several other retailers. As is frequent in MDLs, Plaintiffs filed two grasp complaints, one towards every class of defendants. Particular person plaintiffs then file brief kind complaints (“SFCs”) figuring out specifics about their claims, resembling product utilization, state of residency, and so forth., and adopting the allegations of the grasp complaints. The plaintiff who’s the topic of the newest ruling sued Walmart underneath Tennessee legislation alleging claims for failure to warn, design defect, misrepresentation, breach of implied guarantee, and violation of Tennessee’s Shopper Safety Act (“TCPA”). Walmart moved to dismiss the TCPA declare as preempted, and plaintiff’s remaining claims as subsumed underneath the Tennessee Merchandise Legal responsibility Act (“TPLA”). The courtroom granted the previous and denied the latter. So, possibly that is only a child step, however a minimum of it’s a step.
The preemption query was one of many scope of specific preemption for OTC medication underneath 21 U.S.C. § 379r(a) which preempts any state regulation of OTC medication that’s “completely different from or along with, or that isn’t in any other case similar with, a requirement underneath” the FDCA and two different federal statutes. However there may be an exception–§ 379r(a) doesn’t apply to “any motion or the legal responsibility of any particular person underneath the product legal responsibility legislation of any State.” So, the actual query was whether or not a TCPA declare is a merchandise legal responsibility declare. Whereas the courtroom’s evaluation is of the Tennessee statute, the conclusion ought to apply equally to all state client safety statutes that are largely the identical.
The TCPA bars “unfair or misleading practices” or misrepresentations a few product’s makes use of and advantages. In re Acetaminophen − ASD-ADHD Merchandise Legal responsibility Litigation, MDL No. 3043, 2023 WL 3045802, *3 (S.D.N.Y Apr. 21, 2023). Part 379r(a) doesn’t outline “product legal responsibility legislation.” So, the courtroom needed to afford it its frequent legislation that means. Id. at *4. At its core, product legal responsibility legislation is “geared toward offering aid for private damage and property harm brought on by faulty merchandise.” Id. A definition with roots in Black’s Legislation Dictionary and the Restatement (Third) of Torts: Merchandise Legal responsibility. Subsequently, the courtroom concluded that the exception to specific preemption utilized to “conventional theories of legal responsibility, largely grounded in tort legislation, for private and property harm brought on by faulty merchandise.” Id.
The TCPA, nonetheless, is modeled on the Federal Commerce Fee Act, not state tort legislation. Its main objective is to not maintain defendants chargeable for faulty merchandise. And TCPA claims are solely for financial loss—no private or property harm required. Id. at *5. Subsequently, the TCPA just isn’t a product legal responsibility legislation and accordingly not exempt from specific preemption. Id. That the Tennessee statute doesn’t enable restoration for private damage was a helpful reality, however the tenor of the opinion was that, even when private damage restoration had been allowed (as some states do) that may not have prevented preemption, since client fraud statutes usually are not “conventional” product legal responsibility. That’s a pleasant win.
On the flip aspect, the courtroom rejected defendant’s argument that as a result of the TPLA subsumes all product legal responsibility claims, and the plaintiff’s SFC didn’t point out the TPLA, all of the claims needs to be dismissed. The courtroom discovered the argument was one among kind over substance. Plaintiff adequately pleaded the claims and the failure to quote the statute was not by itself deadly. Evaluating the 2 halves of the choice, defendants walked away with the larger victory.