Lawyers Propose Direct Filing of Toxic Baby Food Lawsuits Over Autism, ADHD in Federal MDL

In advance of a case management conference scheduled for today, parties involved in the federal toxic baby food lawsuits over autism and attention deficit hyperactivity disorder (ADHD) side effects have asked the U.S. District Judge presiding over the litigation to approve a streamlined process for families to file new complaints against the manufacturers of products contaminated with heavy metals.

In recent years, popular baby food products sold by Gerber, Nurture, Beech-Nut and several other major manufacturers have been found to be widely contaminated with toxic heavy metals, including lead, arsenic, mercury and cadmium, which pose serious health risks for children.

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 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.

Toxic Baby Food Autism and ADHD Lawsuits Being Pursued By Families

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 having potentially dangerous levels.

Dozens of families are now pursuing financial compensation for children diagnosed with autism or ADHD, each raising similar allegations 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 complaints, the U.S. Judicial Panel on Multidistrict Litigation (JPML) issued an order in April 2024, establishing a federal toxic baby food MDL (multidistrict litigation), which centralized the cases in the Northern District of California before U.S. District Judge Jacqueline Scott Corley.

As the litigation continues to grow, Judge Corley is working with baby food injury lawyers appointed to leadership positions to establish the organizational structure for the litigation and discovery process, which is expected to culminate with a series of early “bellwether” trials, to help gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the litigation.

Parties Call for Baby Food Lawsuit Direct Filing Order

In complex product liability lawsuits, where large numbers of individuals are pursuing similar claims and allegations, it is common for the Court to approve a Master and Short Form Complaint, where plaintiffs can then file future lawsuits through an abbreviated form, where they adopt allegations that are relevant to their specific claim.

On June 13, both Plaintiffs (PDF) and Defendants (PDF) filed statements in support of direct filing of baby food autism and ADHD lawsuits with the MDL court. However, the parties disagree on whether the court should allow the submission of complaints involving multiple plaintiffs at once.

“Defendants seek to include language in the Direct Filing Order which would categorically prohibit the filing of multi-plaintiff complaints and would essentially require the dismissal of such complaints if not amended within 30 days of filing,” argue lawyers representing families throughout the U.S. “Plaintiffs oppose including this language. The Direct Filing Order should not adjudicate whether multi-plaintiff complaints are, or are not, appropriate. This is a complex issue that should not be resolved in the Direct Filing Order and Plaintiff believes that the Order should simply be silent on this issue.”

However, baby food manufacturers argue that preventing multi-plaintiff complaints lines up with Federal Rules of Civil Procedure.

If Judge Corley approves the direct filing requests, it will dramatically streamline the process for families bringing new lawsuits over the toxic baby food products, reducing delays associated with transferring complaints from various different U.S. District Courts nationwide, and allowing the parties to standardize information gathered about each claim and determine which lawsuits are the most representative of others in the litigation.

Baby Food Lawsuit MDL Status Conference

The lawyers are scheduled to meet with Judge Corley for a status conference today, on June 20, to discuss a number of issues in the litigation and how the cases will move forward in the coming months.

In a joint statement (PDF) submitted on Tuesday, lawyers for both the families and the baby food manufacturers outlined competing proposals regarding the scope of general causation expert proceedings, where each side will vet experts proposed by the opposing party regarding testimony that will establish whether the toxic baby food caused autism or ADHD diagnosed in the individual children of parents bringing claims.

One of the disagreements centers the defendants’ desire to exclude the toxicity of heavy metals found in baby food from questions of general causation, saying they are not a “product”, and want plaintiffs to be required to prove each specific product individually caused children to develop autism.  Plaintiffs say defendants are trying to prevent them from proving their children’s injuries were caused by the high levels of toxic heavy metals found in their baby food products.

“Defining the question without reference to toxic heavy transforms the inquiry away from what Plaintiffs intend to prove at trial. Indeed, this is why Defendants do not want the question to reference toxic heavy metals,” plaintiffs wrote. “They want to be able to argue that the overwhelming number of studies demonstrating that exposure to toxic heavy metals in infancy, whether through food, environment, or otherwise, increases the risk of ASD and ADHD are not ‘relevant’ or do not ‘fit’ the question because they are not studies about ‘baby food’.”

Following the MDL proceedings and any early bellwether trials scheduled by Judge Corley, if the parties fail to negotiate baby food lawsuit settlements for children diagnosed with autism, ADHD and other injuries, the Court may later remand each individual lawsuit directly filed in the MDL back to the U.S. District Court where it would have originated for a separate trial.

However, the joint statement notes that the first claim to go before a jury will be a toxic baby food lawsuit filed in California state court. It is scheduled to go to trial beginning on January 21, 2025.