Toxic baby food autism trial pending
Last week, a California judge denied a petition by a group of baby food manufacturers that sought to exclude expert testimony about a link between heavy metals in baby food and the development of spectrum disorders. autism and ADHD.
This decision, in NC vs. Han Celestial, et al. (Superior Ct. of Cal., Los Angeles Cnty. – 21STCV22822), could have major implications for future toxic baby food lawsuits and it means we could have the first food autism trial for babies this summer.
If you’ve been waiting on the sidelines to see if what you’re hearing about the viability of a baby food autism lawsuit is real, this is a message you want to digest. Because it’s the biggest development in the history of the toxic metals in baby food litigation.
Facts of the case
NC vs. Hain Celestial Group, et al. is a toxic baby food lawsuit filed in California Superior Court for Los Angeles County. The minor plaintiff (“NC”) in the case has been diagnosed with Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD).
The lawsuit alleges that these disorders were caused by NC’s consumption of heavy metals (lead, arsenic and mercury) contained in baby food manufactured by the defendants.
Manufacturing defendants named in the case include Hain Celestial Group Inc. (maker of Earth’s Best Organic), Beech-Nut Nutrition Co., Nurture, Inc., Plum Organics, Gerber Products Company, Walmart, Inc. (maker of HappyBaby brand) and Sprout Foods, Inc. The complaint also named Ralphs Grocery Company as an additional defendant.
The defendants deny that their baby food products contained harmful levels of heavy metals (this claim appears to contradict information revealed in the recent congressional investigation). More persuasively, the defendants also argue that even if their baby food contained heavy metals, the consumption of these metals could not have been the cause of the plaintiff’s autism or ADHD. The defendants argue that autism and ADHD are genetic conditions that develop before birth and are not linked to the consumption of metals in food.
Scientific evidence on causation
To establish product liability claims, all plaintiffs must present expert testimony demonstrating a scientific basis for their claims of causation. In other words, plaintiffs need scientific “evidence” showing that the products in question caused their injuries. Scientific evidence as to causation comes in the form of opinion evidence from expert witnesses. Courts have a responsibility to ensure that expert opinions on causation presented to a jury are not based on a “leap of logic or conjecture”.
Examination of the admissibility of expert opinions that heavy metals can cause autism
The allegation at the heart of the plaintiff’s lawsuit is that consuming high levels of heavy metals (arsenic, lead and mercury) in baby food products can potentially cause autism or attention deficit disorder. This is a controversial position as scientific evidence linking heavy metal exposure to the development of autism and ADHD has only recently emerged and challenges conventional thinking that these neurological conditions cannot be caused. only by genetics.
Recognizing this controversy, the court of NC vs Hain Celestial persuaded the parties to present their expert opinion evidence and ask the court for a preliminary ruling on whether the plaintiff’s causation evidence would be admissible under the California legal standard.
In response, the plaintiff retained the services of four experts who each presented written opinions, appeared for depositions and testified at witness hearings. The Applicant’s experts included 2 epidemiologists, a neurotoxicologist and a pediatric neurologist. The defendants fought back with their expert, Dr. Eric Fombonne, to challenge the basis of the plaintiff’s expertise.
Defense expert identifies 4 ‘analytical flaws’ in plaintiff’s causation opinions
The defendant’s expert, Dr. Fombonne, challenged the validity of the scientific opinions submitted by the plaintiff’s 4 experts. Specifically, Dr. Fombonne identified what he claimed were 4 analytical gaps in the opinions offered by the plaintiff’s experts:
- Speculative conclusions based on studies that lack “temporality”
- Inappropriate use of behavioral questionnaires
- Lack of consistent association
- Ignoring what we know about autism
According to Dr. Fombonne, these analytical shortcomings rendered the opinions offered by the plaintiff’s experts invalid and unreliable with regard to the standards of the epidemiological community. On this basis, the defendants filed a motion to exclude plaintiff’s expert witness evidence.
Judge addresses 4 ‘analytical shortcomings’ identified by defense expert Dr Fombonne
In a lengthy and detailed opinion, Judge Amy D. Hogue denied the defendants’ motion to exclude the plaintiff’s expert testimony on the basis of unreliability. Judge Hogue considered each of the 4 analytical flaws identified by defense expert Dr. Fombonne. Each of these points was found to be unconvincing and did not convince the court that the plaintiff’s expert opinions should not be presented to the jury.
According to Dr. Fombonne, very few studies underlying the opinions of the plaintiff’s 2 epidemiology experts are capable of establishing a “temporality”. Temporality means that there is evidence of exposure before a disease develops. Temporality is necessary to prove causation because, without exposure before illness, causation cannot exist.
After a lengthy discussion and explanation of the timing issue, Justice Hogue rejected the defendants’ argument on this point. In Justice Hogue’s view, the plaintiff’s epidemiologists and Dr. Fombonne simply have a difference of opinion on how to interpret some of the studies that have time limitations. Justice Hogue explained that the interpretation of epidemiological data is a matter of professional judgment in which the trial court does not engage.
(2) Quiz Scores
Dr. Fombonne disputed that the plaintiff’s experts relied on studies that treated behavioral assessment scores as the equivalent of an autism diagnosis. According to Dr. Fombonne, behavioral assessment scores were not a reliable substitute for an actual diagnosis of ASD because they have a 90% error rate.
The applicants respond that ASD is a spectrum of disorders and that the presence of disorders recorded on a behavioral score can at least approximate the diagnosed ASD. As one of the plaintiff’s experts put it, ASD is a “complex constellation of symptoms” from a clinical perspective, it’s “the symptoms that are interesting, not the label”.
Justice Hogue held that relying on behavioral scores as a proxy for the diagnosis of ASH did not render the plaintiff’s expert opinions inadmissible:
[w]ith all the experts agreeing that ASD is a spectrum of behavioral disorders, it is not unreasonable to measure the presence and severity of behavioral disorders characteristic of ASD to approximate the diagnosed ASD.
Again, Judge Hogue finally concluded that Dr. Fombonne’s criticisms on this point relate to the strength and weight of the plaintiff’s expert opinions, and not to their admissibility.
(3) No consistent association
Dr. Fombonne argued that there is no consistent positive association between heavy metals and ASD among studies that satisfy the temporality factor and assess a clinical diagnosis of ASD (as opposed to a simple behavioral assessment ). The court correctly notes that it is only a combination of the 1st and 2n/a “analytical gaps”.
Justice Hogue easily dismissed this point, holding that the mere fact that the plaintiff’s experts did not follow the same procedure as Dr. Fombonne in their analysis does not render the opinions impermissibly illogical.
(4) Failure to consider what is known about autism
The final challenge posed by Dr. Fombonne to the plaintiff’s experts is the failure to consider the role of genetics as the cause of autism. Specifically, Dr. Fombonne notes that the plaintiff’s experts did not rely on any papers examining whether genetics combined with heavy metal exposure can cause autism. This point goes to the very heart of the scientific debate underlying the claims in this case: whether autism is purely the result of genetics or whether it can be caused by environmental factors.
Once again, Judge Hogue concluded that Dr. Fombonne’s criticism on this point focused more on the weight and force of the plaintiff’s expert opinions and not on their admissibility. Moreover, Justice Hogue noted that Dr. Fombonne and the plaintiff’s experts may also be right:
Logically, however, Dr. Fombonne’s hypothesis – ASD is primarily caused by genes – and the plaintiff’s expert hypothesis – environmental factors are capable of causing ASD – are not mutually exclusive theories. Both genes and environmental factors could logically be important factors in the onset of ASD behaviors.
Court denies motion to exclude plaintiff’s expert opinions
After addressing each of the 4 analytical flaws asserted by the defense expert, Dr. Fombonne, Judge Hogue denied the defendants’ motion to exclude the expert testimony presented by the plaintiff. In Judge Hogue’s opinion, Dr. Fombonne and the plaintiff’s experts simply have two competing and equally valid scientific opinions and it is not the role of the courts to settle scientific debates.
Filing a Baby Food Autism Complaint
If your child has been diagnosed with autism and regularly consumes baby food containing high levels of toxic heavy metals, you may be eligible to take legal action and seek financial compensation. Call a baby food lawyer at 800-553-8082 or contact online.