Parents Reminded of Duty To Preserve Evidence in Ongoing Baby Food Heavy Metal Litigation

As families throughout the U.S. move forward with lawsuits over heavy metals in baby food, alleging that children developed autism or attention deficit hyperactivity disorders (ADHD), lawyers recently advised the court that they have sent letters to all parents and caregivers reminding them of their duty to preserve information that may be relevant in the litigation.

There are currently dozens of product liability lawsuits being pursued against several major baby food manufacturers in the federal court system, each raising similar allegations that products sold in recent years contained toxic levels of lead, arsenic, cadmium and mercury, which can have 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 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.

Families now seek financial compensation and baby food heavy metal settlements from the manufacturers, alleging that they placed a desire for profits before the health and safety of children. However, each of those plaintiffs involved in the litigation have important duties to preserve medical records, bills, receipts or other documents regarding the injuries or baby food products at issue in the litigation.

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

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.

Baby Food Heavy Metal Evidence Preservation Orders

A key part of the pretrial proceedings involves a discovery process, which includes the gathering of marketing, warnings and other documents related to baby food autism and ADHD risks.

While the initial discovery is focused on issues relevant to all claims, ultimately each individual claimant will be required to provide information and documents in their possession, which contain information relevant to the lawsuits.

Last week, plaintiffs’ attorneys submitted a statement (PDF) to the Court, confirming that a letter has been sent to each parent or guardian of children presenting claims in the MDL, notifying them of their duty to preserve certain types of documents and platform content in their possession.

The letter explained that relevant information may include, but is not limited to:

• Medical records detailing the autism, ADHD or other injury at issue in the lawsuit;
• Medical bills or other relevant expenses incurred treating the injury;
• Receipts or other documentation for purchases of baby food products with heavy metal contamination;
• All images or videos demonstrating the injuries or products at issue in the litigation;
• Communications regarding the baby food products at issue, or the Defendants involved in the cases.

“With the understanding that this Statement is part of an ongoing discovery process, Plaintiffs’ counsel has advised all…plaintiffs of the duty to both preserve and prevent any automatic deletion of the above materials,” the statement said.

Claimants were also instructed to identify any relevant third parties, such as loyalty programs, which may have some of the relevant data.

Manufacturers of the toxic baby food products face similar discovery obligations, and Judge Corley recently ordered them 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.

That order also called for the manufacturers to produce 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.

While it will likely be several years before the first federal MDL cases are ready for trial, it is expected that a baby food heavy metal contamination lawsuit will go to trial in California early next year.  Although the outcome will not have any binding impact on other claims, it will be closely watched as any jury payout awarded may influence how much the manufacturers need to pay in autism or ADHD settlements to resolve the litigation.