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November 16, 2022

Keller Postman Defeats Motion to Dismiss on Preemption Grounds

On Monday, Keller Postman secured a momentous victory for our clients against Walmart on preemption grounds, in the In Re: Acetaminophen – ASD-ADHD multi-district litigation. Three days after the close of briefing, Judge Denise Cote of the Southern District of New York denied Walmart’s motion to dismiss two of our clients’ lawsuits based on preemption.

In a deliberate and well-reasoned opinion, Judge Cote ruled that federal law does not preempt our clients’ claims alleging that their children have autism or ADHD because Walmart failed to warn them of the risks of prenatal exposure to acetaminophen. 

We are delighted that our clients have overcome defendant’s preemption-based arguments, opening up a path to their ultimate recovery.

Walmart’s motions to dismiss argued that the federal monograph drug system acts as both a floor and a ceiling that prevented Walmart from adding additional warnings to its branded acetaminophen about the link between the drug and ASD/ADHD. But as Keller Postman countered in our opposition, “Walmart ignores the distinction between a floor and a ceiling because it knows there is no federal law or regulation forbidding the seller of a monograph drug from adding optional warnings on top of the required ones.”

Judge Cote sided with our clients, ruling that “The dispositive question here is: could the manufacturer have unilaterally changed the label on Equate without violating [the] regulations governing the Pregnancy Warning, and other applicable regulations? The answer is yes.”

Keller Postman Partner Ashley Keller leads the litigation on behalf of our clients and is nationally recognized for his expertise on federal preemption. Our team also includes Partner Warren Postman and Associates Ashley Barriere, Brooke Clason Smith, and JJ Snidow.

The cases are Roberts et al. v. Wal-Mart Stores, Inc. (No. 22-cv-9012) and Hatfield et al. v. Wal-Mart Stores, Inc. (No. 22-cv-9011).