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Last week we told you about two decisions in the In re Acetaminophen − ASD-ADHD Products Liability Litigation, MDL No. 3043, that were improvements over last November’s debacle of a preemption decision.  Today we report on a decision that makes it a trilogy.  We are still reserving judgment, but with hope.

This MDL is premised on a purported risk that in utero exposure to acetaminophen causes autism spectrum disorders (ASD) and attention deficit hyperactivity disorder (ADHD)—an allegation that is skating on thin causation ice.  Plaintiffs have sued both the manufacturer and several retailers.  As is common in MDLs, Plaintiffs filed two master complaints, one against each category of defendants.  Individual plaintiffs then file short form complaints (“SFCs”) identifying specifics about their claims, such as product usage, state of residency, etc., and adopting the allegations of the master complaints.  The plaintiff who is the subject of the most recent ruling sued Walmart under Tennessee law alleging claims for failure to warn, design defect, misrepresentation, breach of implied warranty, and violation of Tennessee’s Consumer Protection Act (“TCPA”).  Walmart moved to dismiss the TCPA claim as preempted, and plaintiff’s remaining claims as subsumed under the Tennessee Products Liability Act (“TPLA”).  The court granted the former and denied the latter.  So, maybe this is just a baby step, but at least it is a step.

The preemption question was one of the scope of express preemption for OTC drugs under 21 U.S.C. § 379r(a) which preempts any state regulation of OTC drugs that is “different from or in addition to, or that is not otherwise identical with, a requirement under” the FDCA and two other federal statutes.  But there is an exception–§ 379r(a) does not apply to “any action or the liability of any person under the product liability law of any State.”  So, the real question was whether a TCPA claim is a products liability claim.  While the court’s analysis is of the Tennessee statute, the conclusion should apply equally to all state consumer protection statutes which are largely the same. 

The TCPA bars “unfair or deceptive practices” or misrepresentations about a product’s uses and benefits.  In re Acetaminophen − ASD-ADHD Products Liability Litigation, MDL No. 3043, 2023 WL 3045802, *3 (S.D.N.Y Apr. 21, 2023).   Section 379r(a) does not define “product liability law.”  So, the court had to afford it its common law meaning.  Id. at *4.  At its core, product liability law is “aimed at providing relief for personal injury and property damage caused by defective products.”  Id.  A definition with roots in Black’s Law Dictionary and the Restatement (Third) of Torts: Products Liability.  Therefore, the court concluded that the exception to express preemption applied to “traditional theories of liability, largely grounded in tort law, for personal and property damage caused by defective products.”  Id.

The TCPA, however, is modeled on the Federal Trade Commission Act, not state tort law.  Its primary purpose is not to hold defendants liable for defective products.  And TCPA claims are solely for economic loss—no personal or property damage required.  Id. at *5.  Therefore, the TCPA is not a product liability law and accordingly not exempt from express preemption.  Id.  That the Tennessee statute does not allow recovery for personal injury was a useful fact, but the tenor of the opinion was that, even if personal injury recovery were allowed (as some states do) that would not have prevented preemption, since consumer fraud statutes are not “traditional” product liability.  That’s a nice win. 

On the flip side, the court rejected defendant’s argument that because the TPLA subsumes all product liability claims, and the plaintiff’s SFC did not mention the TPLA, all the claims should be dismissed.  The court found the argument was one of form over substance.  Plaintiff adequately pleaded the claims and the failure to cite the statute was not by itself fatal.  Comparing the two halves of the decision, defendants walked away with the bigger victory.