On July 20, 2026, the Second Circuit Court of Appeals reversed a district court ruling that had excluded plaintiffs' expert testimony in a failure-to-warn lawsuit against Walgreen Co. The case involves claims under state law alleging that maternal use of Tylenol during pregnancy is linked to autism in children.

The district court had issued a detailed opinion under Federal Rule of Evidence 702, rejecting the expert testimony for reliability concerns. However, the Second Circuit revived the claims by reversing this decision.

Legal analyst David Bernstein noted several issues with the Second Circuit's legal reasoning. He pointed out that the court began its analysis by quoting Rule 702 but then relied on precedent from Daubert v. Merrell Dow Pharmaceuticals and other cases predating the 2000 and 2023 amendments to Rule 702. Bernstein suggested this indicates the court may not fully recognize that Daubert is no longer the operative standard, as the amendments supersede conflicting case law.

Most notably, Bernstein criticized the court's interpretation of the district court's gatekeeping role under Rule 702. The Second Circuit stated that the district court should exclude expert testimony only if it falls outside the boundaries of ordinary scientific discourse and constitutes "junk science." Bernstein argued that this is incorrect, emphasizing that Rule 702 does not limit exclusion to testimony deemed "junk science" but requires careful scrutiny of reliability.

Bernstein also remarked on the Second Circuit's general reluctance, particularly under Judge Guido Calabresi, to apply Daubert/Joiner and the amended Rule 702 to uphold exclusion of plaintiffs' evidence in major tort litigation. He expressed respect for Judge Calabresi but noted this pattern in the court's approach.

The case highlights ongoing tensions in federal courts over the standards for admitting expert scientific testimony, especially in complex tort cases involving public health claims.

Sources