Allegations of Tainted Baby Formula Revived

     (CN) – The 8th Circuit refused to sideline expert testimony that blames an infant’s permanent brain damage on contaminated Enfamil formula by Mead Johnson.
     H.T.P. was less than 1 month old in May 2005 when he was fed Mead Johnson’s Enfamil Lipil, a powdered infant formula.
     Mead has previously issued two nationwide recalls of its infant formula products, one in March 2002 and the other in January 2003, for C. sak contamination.
     With H.T.P. running a fever at 16 days old, his parents took him to the emergency room where he was treated for presumed bacterial meningitis.
     The baby was admitted twice more to the hospital for vomiting and seizures before an MRI in June revealed the baby had suffered extensive brain damage, at which point doctors suspected, and tests confirmed, that he had been infected with the C. sak bacterium.
     The child survived the infection, but suffered permanent brain damage.
     His family collected all the Mead formula cans at the home, except for one completely used and discarded can, but tests showed the cans were not contaminated.
     Nevertheless H.T.P.’s guardian ad litem, Scott Johnson, sued Mead for products liability, negligence and failure to warn.
     Johnson’s experts said the testing methods used by the Food and Drug Administration do not detect all forms of C. sak, and contamination can exist in a single can without being present in other cans in the same lot.
     A federal judge in Minneapolis excluded that testimony, however, and dismissed Johnson’s complaint. The judge said the experts had improperly “ruled out” other sources of the bacterial contamination without testing the baby’s home or water supply.
     But the 8th Circuit revived the lawsuit Friday, saying the judge “violated these liberal admission standards by resolving doubts in favor of keeping the testimony out and relying upon its own assessment of the correctness of the expert opinions.”
     “By doing so, it disallowed the adversarial process to work,” Judge Clarence Beam wrote for a three-judge panel.
     Mead does not dispute that Enfamil has been a source of C. sak, so the formula has properly been “ruled in” as a likely contamination source.
     While there may have been some omissions in the experts’ methods, “we have consistently ruled that experts are not required to rule out all possible causes when performing the differential etiology analysis,” the St. Louis-based federal appeals court found. “And, a differential expert opinion can be reliable even ‘with less than full information.’ Instead, such considerations go to the weight to be given the testimony by the factfinder, not its admissibility.”

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