Last week, a judge in California denied a motion by a group of baby food manufacturers that sought to exclude expert testimony regarding a link between heavy metals in baby foods and the development of autism spectrum disorder and ADHD.
This ruling, in NC v. 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 baby food autism trial this summer.
If you have been waiting on the sidelines waiting to see if what you were hearing about the viability of a baby food autism lawsuit was real, this is a post you want to digest. Because this is the biggest development in the history of the baby food toxic metal litigation.
Facts of the Case
NC v. Hain Celestial Group, et al. is a toxic baby food lawsuit filed in the Superior Court of California 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 products manufactured by the defendants.
The 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 products), 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 would appear to be at odds with information revealed in the recent congressional investigation). More convincingly, the defendants also argue that even if their baby food contained heavy metals, consuming these metals could not have been the cause of the plaintiff’s autism or ADHD. Defendants contend that autism and ADHD are genetic conditions that develop before birth and do not relate to the consumption of metals in food.
Scientific Evidence on Causation
To establish product liability claims, all plaintiffs must present expert testimony showing a scientific basis for their allegations of causation. In other words, plaintiffs need scientific “proof” showing that the products at issue caused their injuries. Scientific evidence as to causation comes in the form of opinion testimony from expert witnesses. The courts have gatekeeping responsibility to ensure that expert causation opinions presented to a jury are not based on a “leap of logic or conjecture.”
Admissibility Review on Expert Opinions that Heavy Metals Can Cause Autism
The allegation at the core of the plaintiff’s lawsuit is that the consumption of 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 because the scientific evidence linking heavy metal exposure to the development of autism and ADHD has only recently emerged and it challenges the conventional thinking that these neurologic conditions can only be caused by genetics.
In recognition of this controversy, the court in NC v. Hain Celestial convinced the parties to present their expert opinion evidence and seek a preliminary ruling from the court as to whether the plaintiff’s causation evidence would be admissible under California’s legal standard.
In response, the plaintiff retained four experts who each presented written opinions, appeared for depositions, and testified in evidentiary hearings. Plaintiff’s experts included 2 epidemiologists, a neurotoxicologist, and a pediatric neurologist. The defendants countered with their expert, Dr. Eric Fombonne, to challenge the basis of the plaintiff’s expert opinions.
Defense Expert Identifies 4 “Analytical Gaps” 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”
- Improper reliance on behavioral questionnaires
- Lack of consistent association
- Failure to account for what is known about autism
According to Dr. Fombonne, these analytical gaps made the opinions offered by the plaintiff’s experts invalid and unreliable based on the standards of the epidemiological community. Based on this, the defendants filed a motion to exclude the plaintiff’s expert witness evidence
Judge Addresses 4 “Analytical Gaps” Identified by Defense Expert Dr. Fombonne
In a lengthy and detailed opinion, Judge Amy D. Hogue denied the defendants’ motion seeking to exclude the plaintiff’s expert testimony based on unreliability. Judge Hogue considered each of the 4 analytical gaps identified by defense expert Dr. Fombonne. Each of these points was found to be unpersuasive and failed to convince the court that the plaintiff’s expert opinions should not be presented to the jury.
According to Dr. Fombonne, very few of the studies underlying the opinions of the plaintiff’s 2 epidemiology experts are capable of establishing “temporality.” Temporality means that there is evidence of exposure before the development of a disease. Temporality is necessary in order to prove causation because, without exposure before the disease, causation cannot exist.
After a long discussion and explanation of the issue of temporality, Judge Hogue rejected the defendants’ argument on this point. In Judge Hogue’s view, the plaintiff’s epidemiologists and Dr. Fombonne simply have a difference of opinion on how to interpret some of the studies which have temporality limitations. Judge Hogue explained that the interpretation of epidemiological data is a matter of professional judgment that the trial court does not get in involved in.
(2) Questionnaire Scores
Dr. Fombonne took issue with the plaintiff’s experts’ reliance on studies that treated scores on behavioral assessments as the equivalent of an autism diagnosis. According to Dr. Fombonne, behavioral assessment scores were not a reliable substitute for an actual ASD diagnosis because they have a 90% error rate.
The plaintiffs respond that ASD is a spectrum of disorders and that the presence of disorders registered on a behavioral score can at least approximate diagnosed ASD. As expressed by one of the plaintiff’s experts, ASD is a “complex constellation of symptoms” from a clinical perspective it’s “the symptoms that are interesting not the label.”
Judge Hogue held that the reliance on behavioral scores as a proxy for ASH diagnosis did not render the plaintiff’s expert opinions inadmissible:
[w]ith all of the experts agreeing that ASD is a spectrum of behavioral disorders, it is not unreasonable to measure the presence and severity of ASD’s characteristic behavioral disorders to approximate diagnosed ASD.
Once again, Judge Hogue ultimately concluded that Dr. Fombonne’s criticisms on this point address the strength and weight of the plaintiff’s expert opinions, not their admissibility.
(3) No Consistent Association
Dr. Fombonne argued that there is no consistent positive association between heavy metals and ASD among the studies that satisfy the temporality factor and assess a clinical diagnosis of ASD (versus just a behavioral assessment). The court correctly notes that this is merely a combination of Dr. Fombonne’s 1st and 2nd “analytical gaps.”
Judge Hogue easily dismissed this point, finding that just because 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 Account for What is Known About Autism
Dr. Fombonne’s final challenge to the plaintiff’s experts is the failure to consider the role of genetics as a cause of autism. Specifically, Dr. Fombonne notes that the plaintiff’s experts did not rely on any articles examining whether genetics combined with heavy metal exposure can cause autism. This point goes to the very heart of the scientific debate underlying the allegations in this case: whether autism is purely the result of genetics or whether it can be caused by environmental factors.
Once again, Judge Hogue found that Dr. Fombonne’s critique on this point related more to the weight and strength of the plaintiff’s expert opinions and not whether they were admissible. Moreover, Judge Hogue noted that both Dr. Fombonne and the plaintiff’s experts could equally be right:
As a matter of logic, however, Dr. Fombonne’s hypothesis – ASD is primarily caused by genes – and Plaintiff’s experts’ hypothesis – environmental factors are capable of causing ASD – are not mutually exclusive theories. Genes and environmental factors could logically both be substantial factors in causing ASD behaviors.
Court Denies Motion to Exclude Plaintiff’s Expert Opinions
After addressing each of the 4 analytical gaps asserted by defense expert Dr. Fombonne, Judge Hogue denied the defendants’ motion to exclude the expert testimony presented by the plaintiff. In Judge Hogue’s view, 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 resolve scientific debates.
Filing a Baby Food Autism Lawsuit
If your child has been diagnosed with autism and regularly consumed baby food that has been found to have high levels of toxic heavy metals, you may be eligible to file a lawsuit and seek financial compensation. Call a baby food autism lawyer at 800-553-8082 or reach out online.