California Heavy Metals Baby Food Litigation

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Expert Testimony Rejected in California Heavy Metals Baby Food Lawsuit

by: Food and Drug Law at Keller and Heckman of Keller and Heckman LLP - The Daily Intake

Monday, August 28, 2023

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We have observed that uncertainties about the levels of heavy metals in baby foods that are both safe and feasible could pose difficulties for plaintiffs in many of the consumer protection class action lawsuits that followed a February 4, 2021 report and September 29, 2021 supplement (discussed here) by the U.S. House of Representatives subcommittee on Economic and Consumer Policy that raised alarm over the levels of arsenic, lead, cadmium, and mercury reportedly found in U.S. baby foods. Plaintiffs in personal injury litigation face related challenges in establishing that heavy metals in baby food consumed were sufficient to cause heavy metal toxicity and were a substantial cause of neurological disorders.
In an August 24, 2023 hearing, a California state judge said he would grant defense motions to exclude expert testimony that heavy metals in the baby food eaten by the plaintiffs’ son caused him to develop autism and attention deficit hyperactivity disorders (ADHD). The judge ruled one expert’s calculation of the child’s exposure to heavy metals from the baby food was inadmissible, finding his methodology was constructed on assumptions. Specifically, where no heavy metal was detected, the expert assumed the heavy metal was present at the level of detection and where the baby food was not tested, the expert assumed heavy metals were present at the maximum levels specified (whereas the actual levels of heavy metals in the baby food could be zero, or another level less than the assumed amount, in either case). Other experts’ opinions were excluded because these experts could not have reached their purported opinions without relying on the same faulty heavy metal exposure assumptions.
If problems calculating exposure to heavy metals can be fixed, the plaintiffs will face other causation questions raised by the ubiquity of heavy metals and uncertainties about their role in the development of neurological disorders. As noted by the judge, “given that the heavy metals at issue here are found widely distributed throughout the environment from many sources — air, food, water, industrial product, and can cross the placenta — it seems a fact that virtually all neo-nates and infants are exposed to and have a dose of these metals in their bodies, yet not all children have these disorders.” Keller and Heckman will continue to monitor and report on heavy metals baby food litigation and any relevant regulatory actions or developments.