Column: Tainted baby food claims become uphill litigation battle

Hain Celestial

11/09/2023 23:37

(The opinions expressed here are those of the author, a
columnist for Reuters.)
    By Jenna Greene
       Sept 7 (Reuters) - It’s hard to envision a more
sympathetic plaintiff than a chubby-cheeked baby being spoon-fed
pureed sweet potatoes or rice cereal.
    Now imagine the food is tainted with toxic heavy metals
including lead and arsenic that could cause irreversible brain
damage.
    That's what a 2021 report by a congressional subcommittee
found. Based on internal manufacturers’ documents, the report
revealed "significant levels" of neurotoxins in some baby foods,
especially rice and root vegetable-based products, with the
potential to “endanger infant neurological development.”
    Cue the lawsuits?
    Not so fast.
    Fewer than a dozen cases linking baby food to autism and
ADHD have been filed nationwide to date, according to the
lawyers involved. And so far, the plaintiffs are 0 for 2.
    The defendants, which include Nestle's  NESN.S  Gerber unit,
Beech-Nut Nutrition, Earth’s Best maker Hain Celestial Group
 HAIN.O  and several others, strongly dispute allegations that
their products are unsafe and say the elements in question occur
naturally in soil and water.
    Their latest courtroom win came earlier this month in
California, after a Los Angeles County Superior Court judge
nixed crucial expert testimony calculating the dose of heavy
metals ingested from baby food.
    That left the parents of 9-year-old Noah Cantabrana unable
to make their case that tainted baby food was a substantial
factor in causing their son’s autism spectrum disorder as well
as his attention-deficit/hyperactivity disorder.
    Their lawsuit alleged the companies "knowingly sold baby
foods containing dangerous levels of toxic heavy metals" and
failed to warn parents of the contaminants. Judge Lawrence Riff
dismissed the case on summary judgment on Sept. 1.
    While acknowledging some baby food may contain "miniscule"
amounts of naturally occurring heavy metals, Beech-Nut Nutrition
in a statement said the court did not find reliable scientific
evidence to support a link between this and the plaintiff’s
autism or ADHD. The company said it does “extensive" product
testing to ensure food safety. 
   Hain Celestial in a statement said "the court reached the
correct conclusion,” and that the company stands by the safety
of its products.
       Gerber did not respond to requests for comment.
   The case to me underscores the gulf that can arise between
litigation and science — and the challenge of trying to prove
causation.
    It's difficult to bring cases “with a novel theory of
damages, when there’s not a lot of science behind it yet,” said
Bill Marler, a plaintiffs’ side food safety lawyer who is not
involved in the baby food litigation.     
    Recall that tobacco companies starting in the 1950s defeated
hundreds of private lawsuits, successfully arguing for more than
30 years that plaintiffs offered insufficient proof that
cigarette smoking caused lung cancer — before ultimately
shelling out about $200 billion in a master settlement
agreement.
    The baby food litigation is proving even trickier. The heavy
metal elements at issue are widely distributed in the
environment, found in soil, air, food, water and industrial
products — and can also cross the placenta, exposing the fetus
while still in utero.
     “It seems a fact that virtually all neo-nates and infants
are exposed to and have a dose of these metals in their bodies,”
Riff said during a hearing in Los Angeles on Aug. 24, according
to a court transcript. “Yet not all children have these
disorders.”
    Trying to prove baby food makers are to blame for the ones
who do is a steep hill to climb – though the plaintiffs have
made some headway.
    Before retiring from the Los Angeles County Superior Court
bench last year and handing the baby food case off to Riff,
Judge Amy Hogue held a “Sargon” hearing, where trial courts act
as the gatekeeper for what scientific evidence can be admissible
at trial. 
    She ruled that the plaintiffs’ experts used sound
methodologies to conclude that toxic heavy metals “are capable
of being a substantial factor” in causing autism and ADHD.
    The remaining question: Did the metals in baby food cause
Noah Cantabrana’s brain injury specifically?
    That’s where the plaintiffs’ experts in a second Sargon
hearing fell short. Key to the inquiry was establishing the
boy’s cumulative dose of heavy metals. But Riff found the
expert’s methodology here was “a too-far leap of logic and a
too-great analytical gap to be tolerated.”
    In dismissing the case, Riff also noted that Noah ate foods
by all seven defendant companies. While he said a jury could
“probably find” that their products as a whole were a
substantial factor in Noah’s injury, the plaintiffs didn’t show
any particular defendant’s products were to blame.
    Still, the plaintiff's lawyers say they aren't giving up.
    “We are undeterred,” said Alexandra Walsh, who represents
the Cantabrana family along with Wisner Baum’s R. Brent Wisner. 
    A former U.S. Supreme Court clerk, Walsh was a partner at
Paul, Weiss, Rifkind, Wharton & Garrison and co-founder of a
litigation boutique with Beth Wilkinson before launching her own
plaintiff-side firm in 2021.  
        As for Wisner, in 2019 he won a $2 billion jury verdict
against Monsanto on behalf of a couple who blamed the company’s
weed killer Roundup for their cancer.
    The baby food makers have tapped their own heavy hitters
from firms including Covington & Burling, Williams & Connolly
and King & Spalding.
    Wisner said via email that the shortcomings Riff flagged can
be remedied, either on appeal or in a new case. “We just need to
make sure our experts account for everything.”
    That strikes me as easier said than done, at least given the
current scientific limits in understanding the exact causes of
autism. But given the stakes on all sides, I don't see this
fight ending anytime soon.

 (Reporting by Jenna Greene; editing by Leigh Jones)