Results of Baby Food Heavy Metal Testing Must Be Produced in Lawsuits Over Autism, ADHD Among Children

The U.S. District Judge presiding over all toxic baby food lawsuits has ordered Gerber, Beech-Nut and other manufacturers to turn over testing data for hundreds of products to families pursuing lawsuits alleging that heavy metals in the baby food caused their children to develop autism or attention deficit hyperactivity disorder (ADHD).

Dozens of product liability lawsuits have been brought throughout the federal court system against several major baby food manufacturers, each raising similar allegations that products sold in recent years contained toxic levels of lead, arsenic, cadmium and mercury, which had devastating side effects on infants’ neurological development.

The litigation first emerged in April 2021, after a U.S. Congressional report highlighted internal documents and testing results regarding the baby food heavy metal contamination, finding some products sold by several major manufacturers contained more than 91 times the maximum level of arsenic allowed in bottled water, 177 times the allowable levels of lead, 69 times the limits on cadmium and five times the levels of allowable mercury.

Despite calls from health experts and regulators for manufacturers to entirely remove the contaminants from their products, subsequent testing has found that toxic heavy metals in baby food remain a pervasive problem, with a report published last year finding that popular brands sold by Gerber, Plum Organics, Sprout, Walmart and others still have potentially dangerous levels.

All of the baby food lawsuits were brought by families of children who developed autism or ADHD after exposure to the toxic metals, indicating that manufacturers played on the parents’ trust that products would be safe, while concealing the levels of toxic elements present for years.

Given common questions of fact and law raised in the individual complaints, the U.S. Judicial Panel on Multidistrict Litigation (JPML) established a toxic baby food MDL in April 2024, which centralized complaints filed in U.S. District Courts nationwide in the Northern District of California, where U.S. District Judge Jacqueline Scott Corley is presiding over coordinated discovery and pretrial proceedings.

Defendants Must Turn Over Baby Food Metal Testing Results

As part of the management of the litigation, it is expected that Judge Corley will establish a “bellwether” process where a small group of representative claims will be prepared for early trial dates to help gauge how juries may respond to certain evidence and testimony that will be presented throughout other cases.

Part of that process involves the gathering of documents relating to baby food autism and ADHD risks, marketing and warnings, known as the discovery process.

In a pre-trial order (PDF) issued on August 22, Judge Corley ordered defendants to produce all baby food heavy metal test results and product formulas from 2012 to 2021, including information about 600 different products. The test results must include both ingredients and final products, as federal regulators have reported that some companies only report when the metals are at their lowest during the production process.

The order also calls for reports on the testing of water used in the manufacturing of baby food, and the identification of third-party co-manufacturers that helped make the affected products.

“Any Defendant that does not have a significant amount of baby food heavy metal test results for the relevant period shall also identify their suppliers,” Judge Corley wrote in the order.

The data gleaned from the manufacturers’ testing could show plaintiffs and the court what the companies knew about toxic levels of heavy metals in baby food, and when they knew it. In addition, by showing the true amounts of arsenic, lead and other toxic metals in the foods at time of production, the data may strengthen plaintiffs’ claims that the baby food actually could have caused autism and ADHD in children.

September 2024 Baby Food Heavy Metal Lawsuit Update

By September 12, all of the Defendants must file a document with the Court that details all the steps they have taken to preserve evidence for the litigation, Judge Corley ordered.

Defendants have until September 16 to file any motions to dismiss the claims. Plaintiffs will then have until October 28 to respond, and the manufacturers’ reply briefs will be due by November 18. The court will then schedule a hearing to consider the early dispositive motions in the MDL.

Following the last case management conference held on August 22, Judge Corley is next scheduled to meet with lawyers involved in the litigation on September 26, 2024, and the parties have been directed to submit a joint case management statement by September 24.

Unless the manufacturers can dismiss the litigation during the pretrial proceedings, the MDL court will likely move forward with the bellwether plan to set individual claims for early trial dates. However, before the first federal lawsuits are ready to go before a jury, it is expected that a toxic baby food lawsuit in California state court will be the first to go before a jury, in a case scheduled to begin on January 21, 2025.