Baby Food Lawsuit Updates & News | October 2024

In toxic baby food cases, the statute of limitations for minors is often paused until they turn 18, giving them extra time to file claims. However, some states, like Florida, have stricter rules that limit filing time for minors in toxic exposure cases. The statute of limitations varies by state and can be extended through rules like the discovery rule, which starts the clock when an injury is discovered. Given these complexities, filing a lawsuit early is crucial to avoid missed deadlines. Consulting with a lawyer is recommended to ensure your case is timely filed.

Loyalty programs offered by baby food companies have become important evidence in toxic baby food lawsuits. These programs track purchase histories, showing patterns of

brand loyalty and product use, which can be critical in establishing proof of purchase in legal claims. If you're part of such a program, it's vital to keep all documentation, including receipts and purchase histories. This information can support your claim in product liability cases, where proof of specific purchases may be necessary. Lawyers will likely request these records to ensure your case is well-documented.

The pace of heavy metal baby food lawsuits remains slow, with the MDL shrinking from 31 to 30 cases last month but adding two new cases this month, bringing the total to 32. This does not suggest a lack of interest from plaintiffs’ lawyers. Many states have extended statute of limitations for minors, allowing lawsuits to be filed well into adulthood. As a result, attorneys are adopting a cautious, “wait-and-see” approach, opting to observe how the litigation progresses before filing more cases to better assess strategy and outcomes.

A status hearing on September 2 set important deadlines for both sides. The Defendants are required to propose their electronic evidence protocol by October 1, 2024. The Plaintiffs must submit a document detailing their evidence preservation process by October 11, 2024. Additionally, both legal teams must either file a joint protective order or submit a statement outlining their agreements and disagreements by October 10, 2024.

Parties in the heavy metal baby food lawsuit have made progress on Electronically Stored Information (ESI) and Protective Orders but are still divided on three key points: applying the ESI protocol to plaintiffs’ discovery, its use for retailer defendants, and collecting hyperlinked documents. Plaintiffs argue that using the same protocol for both large corporations and individuals is too burdensome, suggesting a two-step approach.

ESI is crucial in this case as it could reveal internal communications, product testing, and supply chain records. These may provide evidence that companies knew about harmful heavy metals in their products and failed to act.

A new case, S.K. v. Beech-Nut, alleges that baby food from major brands like Beech-Nut, Gerber, and others contained harmful levels of toxic metals. The plaintiff, a child from Florida, reportedly suffered long-term health and developmental issues after consuming the contaminated products. The lawsuit names several brands for exceeding toxic metal limits set by internal guidelines and the FDA.

The toxic baby food MDL saw a slight decrease in pending cases, dropping from 31 to 30. While some new cases were transferred in, others were dismissed or sent back to state courts.

In an unusual twist, the federal MDL is significantly lagging behind the more advanced state court litigation in California. While the MDL is still in its early stages, the first baby food lawsuits in California are already scheduled for trial in January 2025.

Defendants are ordered to produce heavy metal test results for baby food ingredients, final products, and water used in manufacturing from 2012 to 2021, as well as product formulas. They must also identify any third-party co-manufacturers during that period, and if data is insufficient, identify their suppliers.

By September 12, 2024, defendants must file documentation detailing their evidence preservation efforts, including when and how litigation holds were implemented. The parties are to submit an ESI protocol by September 19, 2024, noting any disagreements. Case management conferences are scheduled for September 26, November 7, and December 12, 2024, with the next update on September 24, 2024.

A Florida family has initiated a lawsuit in the Northern District of California against baby food companies, including Beech-Nut, Gerber, and Walmart. The suit alleges that the companies sold baby food contaminated with toxic heavy metals—lead, arsenic, mercury, and cadmium—linked to severe neurodevelopmental harm.

The plaintiffs claim that their child, exposed to these products between November 2018 and May 2021, developed Autism Spectrum Disorder as a result. The lawsuit accuses the companies of failing to warn consumers about the risks and neglecting to test for or limit these dangerous metals in their products, prioritizing profits over child safety.

Last week, plaintiffs’ lawyers filed a master complaint in the baby food MDL. This document consolidates claims from multiple plaintiffs against major baby food manufacturers—Beech-Nut, Gerber, Hain Celestial, Nurture, Plum, Sprout, and Walmart—accusing them of selling products contaminated with toxic heavy metals.

Key Allegations:

• Contaminants: Lead, arsenic, mercury, cadmium, and aluminum.
• Health Impact: Neurodevelopmental harm, including autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD) in children.
• Failure to Warn: Defendants allegedly knew about the risks but did not inform consumers.

Evidence and Claims:

• Congressional Investigations: Independent testing revealed significant levels of heavy metals in baby foods.
• Contamination Factors: Sourcing ingredients with high metal levels, setting dangerously high internal metal limits, failing to adhere to standards, and manufacturing practices.
• Concealment: Defendants are accused of hiding dangers, preventing consumers from seeking safer alternatives.

Accusations Against Defendants:

• Negligence: Failing to test and warn about heavy metals.
• Manufacturing Deviations: Not following specifications and producing defective products.
• Profit Over Safety: Recklessly prioritizing profits, leading to severe harm.

Plaintiffs Seek Damages For:

• Severe and permanent injuries, including pain, suffering, disability, impairment, economic loss, and future medical expenses.

A new lawsuit has been filed in the MDL, following the procedure discussed in the July 3 update.

A child from Orlando, Florida, and his mother have sued Gerber, Beech-Nut, and Walmart. The lawsuit alleges that these companies knowingly sold baby food containing dangerous levels of toxic heavy metals, including lead, arsenic, and mercury. The plaintiffs claim these substances substantially contributed to the child developing autism.

Whole Foods and Amazon have filed a motion to dismiss a lawsuit alleging negligence related to harmful baby food sales. They argue that as retailers, they are not responsible for inspecting or testing products manufactured by other companies and should not be liable for product defects.

Plaintiffs’ lawyers disagree, claiming that retailers have a duty to ensure the safety of the products they sell, especially baby food. They argue that Whole Foods and Amazon should have conducted proper inspections and tests to detect potential hazards.

A significant settlement is anticipated, and Amazon’s involvement is seen as crucial due to its financial capacity to contribute without strain.

Whole Foods and Hain Celestial are requesting a full Fifth Circuit review of a decision that remanded a lawsuit to state court. The suit claims toxic heavy metals in Hain’s baby food caused a toddler's mental and physical decline. The companies argue that remanding the case post-final judgment in federal court contradicts Fifth Circuit and Supreme Court precedent.

Key Points:

• Jurisdiction Dispute: Whole Foods and Hain assert the second amended complaint shouldn't have led to remand, emphasizing jurisdiction should be based on the operative complaint at removal.
• Diversity of Citizenship: They claim complete diversity existed at judgment since Whole Foods, based in Texas, had been dismissed.
• Federal Jurisdiction: They argue post-removal complaint amendments don't divest federal jurisdiction and Texas law doesn't hold non-manufacturer sellers liable for product harm.

Success in the toxic baby food lawsuits hinges on convincing the MDL judge of the scientific evidence's validity. The framing of causation evidence is crucial. Plaintiffs argue that expert focus should be on whether heavy metals in baby foods can cause autism and ADHD.

In contrast, the defense wants the focus on whether baby food products themselves can cause these conditions, a subtle yet critical distinction. This framing affects how scientific evidence is presented and evaluated, with significant implications for the case's outcome.

Defendants in the toxic baby food lawsuit filed a motion to avoid new discovery, citing success in previous similar cases. They argued that established protocols for managing electronically stored information (ESI) have worked well and should be reused. They quoted the judge's remark about the litigation being “more mature than we often see” to support their stance.

The defendants aim to avoid producing new documents, witnesses, or other discovery materials. However, each case has unique details and nuances that must be addressed, making their argument insufficient for the current MDL.

Attorneys in the toxic baby food case agree to an Omnibus Sealing Stipulation for high confidentiality. This includes redacting sensitive health information in court documents to protect victims' privacy, pending MDL judge approval.

In May, no new cases were added to the toxic baby food class action MDL. The total number of pending cases remains at 25.

The Fifth Circuit Court reversed a decision dismissing Whole Foods from a lawsuit involving a Texas toddler who allegedly suffered brain damage from heavy metals in Hain Celestial Group Inc.'s baby food sold by Whole Foods. Initially, the toddler developed normally but regressed at around thirty months, experiencing seizure disorders and intellectual disabilities linked to heavy metal poisoning. The district court had removed Whole Foods due to insufficient evidence, but the Fifth Circuit found potential accountability in Whole Foods' marketing claims, sending the case back to state court.

In the ongoing baby food litigation, “retailer customer loyalty records” have become crucial evidence for plaintiffs. These records can verify specific baby food brands and products purchased. Typically tied to rewards programs, they track individual purchase histories. Plaintiffs should actively secure this information, or any other purchase records, to strengthen their claims.

U.S. District Judge Jacqueline Scott Corley will hold an initial status conference today for pretrial proceedings in baby food toxic heavy metals lawsuits. She will review joint statements from both sides, consider leadership roles for the plaintiffs' legal team, and discuss procedural suggestions and scheduling orders. Plaintiffs aim for bellwether trials by mid-2025, while defendants want to first determine general causation. However, in 2024, such requests are rarely granted, especially given the established link between heavy metals in baby food and brain injuries.

Since its inception, the toxic baby food class action MDL has grown to include 25 pending cases, with 5 new cases added in the first month. The potential for further expansion is significant, given the large pool of potential plaintiffs.

Judge Corley has issued the first pretrial order in the heavy metal baby food lawsuits centralized in the U.S. District Court for the Northern District of California. This order establishes important procedural guidelines and sets a deadline of April 29, 2024, for lawyers to apply to the plaintiff's steering committee. An initial hearing is scheduled for May 16, 2024, in San Francisco. The order marks the beginning of what is expected to be a swiftly progressing lawsuit.

Federal lawsuits against major baby food producers have been consolidated into a class action multidistrict litigation (MDL) in California's Northern District. Judge Jacqueline Scott Corley is appointed to oversee the proceedings, involving companies like Gerber, Beech-Nut, and Campbell Soup Co. Despite initial expectations of increased legal inquiries following the consolidation announcement, the volume of new calls to our lawyers has remained stable over the past year. However, a surge in cases is anticipated in the near future.

Baby food companies, including Gerber Products Co., Beech-Nut Nutrition Co., and Hain Celestial Group Inc., are resisting the consolidation of federal lawsuits into a Multidistrict Litigation (MDL). These lawsuits allege that the companies' products, containing heavy metals, have contributed to Autism Spectrum Disorder (ASD) and ADHD in children. The manufacturers argue against the need for an MDL to manage pre-trial proceedings, even as the motion for its creation, filed in January, awaits a decision from the Judicial Panel on Multidistrict Litigation (JPML).

State attorneys general have reiterated calls for the FDA to mandate lead and other metal testing in baby food. This push comes in response to recent lead poisoning cases linked to applesauce pouches, highlighting the need for stricter measures against metal contamination in infant and toddler foods.

On February 2, 2024, plaintiffs in the toxic heavy metal baby food litigation filed a request with the Judicial Panel on Multidistrict Litigation (JPML) to consolidate their cases into a Multidistrict Litigation (MDL). The goals include:

• Enhancing procedural efficiency and ensuring uniform decisions to potentially expedite settlements.
• Utilizing the MDL to address the complex nature of toxic baby food cases more effectively.

Lawyers successfully appealed the dismissal of consumer claims against Beech-Nut Nutrition Company. The Second Circuit Court of Appeals ruled against deferring to the FDA, allowing the litigation to proceed.

Despite initial setbacks in the toxic baby food litigation, where two cases linking heavy metals in baby foods to autism were dismissed, there's a renewed sense of optimism among plaintiffs as we approach 2024. Our team of toxic baby food lawyers is encouraged by these recent developments and is actively accepting new cases. We are reaching out to individuals who meet our specific criteria for eligibility, signaling a revitalized effort to address and advance these important claims.

California has introduced a stringent law, signed by Governor Gavin Newsom, to ensure greater safety in baby food products. This legislation mandates:

• Monthly Testing: Baby food manufacturers must conduct regular tests for toxic heavy metals like lead and arsenic starting in January.
• Public Disclosure by 2025: Results of these tests, including compliance with FDA-recommended heavy metal limits, must be publicly available.
• QR Codes for Transparency: Companies are required to implement QR codes on packaging for easy access to test results.

In response to growing concerns about heavy metals in baby foods, this law aims to enhance transparency and safety in the industry. It is anticipated to not only challenge manufacturers with new compliance requirements but also potentially influence federal regulations and industry-wide safety practices.

Beech-Nut is actively petitioning the Second Circuit Court of Appeals to sustain the dismissal of consumer lawsuits alleging deceptive practices related to the presence of heavy metals in their baby foods. Parents have accused the company of hiding the presence of lead, arsenic, and other heavy metals, leading to overpayment. However, Beech-Nut argues that the issue of trace metal safety in baby food falls under the purview of the FDA's scientific and regulatory expertise, not the courts.

The company's stance implies a preference for regulatory judgment over a trial by jury. Notably, these lawsuits are consumer class actions focused on alleged deceptive practices, distinct from litigation concerning autism or ADHD claims. Beech-Nut's efforts reflect their strategy to shift the matter from judicial scrutiny to regulatory assessment.

A family from Texas, convinced that their son's brain damage was caused by heavy metals in Hain Celestial Group's baby food, appealed to a federal court to reinstate their suit against both Hain and retailer Whole Foods. Following a midtrial victory for Hain Celestial due to the plaintiffs' inability to establish causation, the family contends that they provided ample evidence linking the heavy metals to their son’s condition and that a jury trial should have proceeded.

Consumer Reports unveiled findings from a recent investigation, revealing that despite concerns raised five years ago, heavy metals continue to be present in some baby food brands, including Earth’s Best Organic, Gerber, and Hot Kid. The report emphasized the urgent need for the Food and Drug Administration (FDA) to implement stricter regulations on acceptable levels of toxic metals in baby foods. Notably, foods made primarily from rice, sweet potatoes, and carrots were identified as the most at risk.

The first substantial baby food autism lawsuit is slated to go to trial in California in October 2023, marking a significant milestone in these legal battles.

In a concerning move, the FDA removed deadlines for setting guidelines on reducing toxic metals in baby foods from its website. This change, done without any accompanying explanation, raised further questions about the agency's commitment to child safety.

Hain Celestial Group Inc. achieved a midtrial judgment in a lawsuit where a family alleged that heavy metals in its Earth’s Best products caused their son’s severe autism. The lack of evidence and expert testimony linking the heavy metals to the child's symptoms led to the judgment. However, this judgment is not necessarily indicative of future outcomes, especially with the upcoming trial in California, where more comprehensive expert testimonies are anticipated.

A comprehensive lawsuit was filed in Nevada against multiple baby food manufacturers, including Beech-Nut Nutrition Company Inc., Gerber Products Company, and Walmart Inc., among others. This lawsuit is particularly notable for its detailed reference to multiple reports and international studies on the risks of toxic metals.

A bipartisan group of lawmakers sent a letter to the FDA Commissioner, urging the agency to finalize new regulations on acceptable heavy metal levels in baby foods, emphasizing the prolonged wait for such guidelines.

The FDA proposed new limits on lead levels in baby foods, setting a maximum threshold of 10 parts per billion for products containing fruits, vegetables, and meat-based mixtures. This move, once finalized, will empower the FDA to act against violators.

Bloomberg Law aired a podcast discussing the FDA's delayed response to the crisis of toxic metals in baby food. The podcast highlighted that as far back as 2007, the FDA identified heavy metals in several baby food samples but did not establish enforceable limits or provide clear guidance.

Most baby food lawsuits have been filed in state courts believed to offer a more favorable venue for the plaintiffs. The number of federal lawsuits has seen a significant decline over the past year, with many class action lawsuits being abandoned and new plaintiffs preferring to file in state courts, especially in California, due to favorable rulings.