On February 3, 2022 a Los Angeles County, California judge concluded an early evidentiary hearing centered on the opinions from four of the plaintiff’s experts in one of the nation’s first lawsuits over baby food allegedly contaminated with toxic metals. In what is known in California as a Sargon hearing, the defendants asked the court to evaluate “whether reliable scientific evidence exists that lead, arsenic, and/or mercury (the “heavy metals”) can cause autism spectrum disorder (ASD), and whether lead can cause attention deficit hyperactivity disorder (ADHD).” Notably, this hearing comes before any discovery has been conducted in the case, as the defendants made an argument that they should not be forced to expend time and money on discovery when they would ultimately prevail on a causation challenge.
The case at issue involves a seven-year-old minor plaintiff represented by his mother, who alleges that he was diagnosed with ASD at two years and nine months of age, and with ADHD four years later. The plaintiff alleges that these conditions were caused by eating baby food containing heavy metals. The catalyst for the plaintiff’s suit? The widely reported and heavily publicized February 2021 U.S. House of Representatives report finding that several “commercial baby foods are tainted with significant levels of toxic heavy metals, including arsenic, lead, cadmium, and mercury.”
The plaintiff filed his case in June 2021, four months after the release of the report, against seven baby food manufacturers and one retailer, alleging that they knowingly sold baby foods that “contain dangerous levels of toxic heavy metals—mercury, lead, arsenic, and cadmium.” His complaint sounds in strict products liability (on theories of failure to warn, design defect, and manufacturing defect) and negligence (on theories of negligent failure to warn, negligent product design, negligent manufacturing, negligent misrepresentation).
In early January 2022, the defendants filed a formal briefing seeking to exclude the opinions of the plaintiff’s four experts, which included two epidemiologists, one toxicologist, and one pediatric neurologist. Broadly, as to all four experts, the defendants argued that research into environmental exposures to heavy metals has been ongoing in recent years, but there is nothing close to any scientific consensus that exposure to heavy metals causes ASD. Additionally, the defendants argued that no regulatory or judicial body has ever reached such a conclusion, and commented that the court in this case would be the first in the nation to find a causal link between post-natal exposures to heavy metals and ASD.
In opposition, the plaintiff argued that there was overwhelming evidence from scientists and regulators linking toxic heavy metals to the development of ASD and/or ADHD. The plaintiff noted that the court’s role as a gatekeeper in a Sargon hearing was to “determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert’s general theory or technique is valid,” and further argued that the defendants’ motions improperly invited the court to “wade into a scientific debate” about environmental exposures and the development of ASD.
The court heard testimony from the plaintiff’s experts over course of four days, via Zoom, with the defendants having the opportunity to cross-examine each. Next up, defense experts are expected to testify in early March, after which the court should issue an opinion as to whether the case can proceed to discovery. If the court rules that the science is valid, the defendants in this case and other baby food manufacturers and retailers referenced in the 2021 House of Representatives study could face a flood of lawsuits throughout the country as ASD prevalence continues to increase.