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The Second Circuit's Problematic Rule 702 Analysis in its Recent Tylenol Decision

David Bernstein | 7.20.2026 10:36 AM

Last week, in Rutledge v. Walgreen Co., the Second Circuit revived failure-to-warn claims under state law relating to maternal use of Tylenol during pregnancy and its alleged links to autism in children. The district court had rejected the plaintiffs' expert testimony in a careful, extensive Rule 702 opinion, and the Second Circuit reversed that ruling.

I am hardly an expert on the underlying subject matter in general, or how it was presented to the district court in particular, and have no desire to become one, so I can't claim to know whether the district court was correct as an initial matter.

Nevertheless, in reading the opinion, I saw three errors in the Second Circuit's legal........

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