Baby food
SAN FRANCISCO – Lawyers trying to link autism to baby food last week lost a key ruling when a federal judge found their experts’ testimony unreliable, in part because their theory stemmed from a hypothetical diet put forth by those attorneys.
Judge Jacqueline Scott Corley on Feb. 27 tossed seven of eight proposed experts, delivering a blow to the plaintiffs blaming heavy metals in baby food for autism and ADHD. A judge has already rejected lawyers’ efforts to blame Tylenol for autism, and Corley’s ruling boosts the defense of companies like Gerber, Hain and Walmart.
Corley wrote that the methods used by plaintiff experts like infant dietician Priscilla Barr did not satisfy rules for testimony, which forbids them from spreading their theories to juries.
“(T)hey have not identified any studies of whether food of any kind can cause (autism and ADHD),” she wrote.
“So, Plaintiffs’ causation theory is built upon a series of extrapolations from studies that do not look specifically a consumption of baby food.”
Corley took issue with opinions derived from a hypothetical menu given to the experts by the lawyers leading the litigation. It formed the basis of what effect arsenic and lead could have a child who eats that food and is not “the product of reliable principles and methods,” Corley said.
The master complaint names 103 Beech-Nut products, but only 24 of them are included in the hypothetical menu, with no explanation why they were included and others omitted.
It also was not explained why children with these hypothetical diets would only drink formula and not breast milk, causing a reliability issue the experts could not overcome.
Further, in a consumption grid for Nurture products, lawyers estimated two servings of “Yogis” per day from 6 months old to 1 year, and then three servings per day from 1 to 3. However, there was only one product on the menu – Blueberry & Purple Carrot.
“That means a child is expected to consumer Blueberry & Purple Carrot Yogis every day for two and a half years,” Corley wrote.
“Of course, Ms. Barr’s charge from Plaintiffs was not to create a menu that reflects a realistic consumption pattern for U.S. children; she was told what the menu was, and so her report functions as an ex-post analysis to justify its plausibility. In this way, Ms. Barr’s proffered opinions are ‘unduly results-driven,’ and lack a discernable, reliable method under Rule 702.
Corley cited last year’s Delaware Supreme Court decision that disqualified experts trying to show Zantac can morph into cancer-causing NDMA in the stomach, which seemingly put an end to 75,000 lawsuits and followed a similar ruling by a Florida federal judge.
Many of the other experts relied on the findings of scientist Rachael Jones, whose report dealt with exposure. She took the hypothetical menus and data from heavy-metal testing to estimate lead and arsenic exposure.
Though her methods were reasonable and accepted by agencies like the EPA, it was still based on the hypothetical menus designed by lawyers.
“These issues infect the core assumptions of Dr. Jones’ opinions and render them inadmissible…” Corley wrote. “Dr. Jones did not have any information about how the consumption patterns were constructed, nor did she question them, since it was ‘outside the scope of [her] task.’
“This means two of the three data sources supporting her calculations come from Plaintiffs’ counsel, without any scientific validation. An expert cannot blindly accept data without assessing its reliability prior to incorporating it into her analysis.”
Only neurologist Kevin Shapiro wasn’t disqualified. He is not testifying to causation, only that it is biologically plausible that heavy metals can cause autism and ADHD.
Among lead counsel for the plaintiffs are Aimee Wagstaff of Wagstaff Law Firm and R. Brent Wisner of Wisner Baum, which says it represents more than 8,000 plaintiffs in these cases. It’s also among the firms hurt by Zantac judges who wouldn’t let plaintiff experts testify.
