Case CAN/4:21-cv-01600 Document 33 Filed 04/13/21 Page 1 of 24
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`BEFORE THE UNITED STATES JUDICIAL PANEL ON
`MULTIDISTRICT LITIGATION
`
`
`
`IN RE: BABY FOOD
`MARKETING, SALES
`PRACTICES AND PRODUCTS
`LIABILITY LITIGATION
`
`
`_______________________________/
`
`
`MDL NO. 2997
`
`
`
`INTERESTED PARTY RESPONSE IN PARTIAL SUPPORT OF MOTION FOR
`TRANSFER OF ACTIONS PURSUANT TO 28 U.S.C. § 1407 FOR COORDINATED OR
`CONSOLIDATED PRETRIAL PROCEEDINGS
`
`Pursuant to Rule 6.2(e) of the Rules of Procedure for the United States Judicial Panel on
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`Multidistrict Litigation, Plaintiffs AG, HG, and XG in the matter of AG, et al. v. Plum, PBC, et
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`al., Case No. 3:21-cv-01600-YGR, respectfully submit this response to Plaintiffs Lori-Anne
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`Albano, Myjorie Philippe, Rebecca Telaro and Alyssa Rose’s (“Albano Plaintiffs”) motion to
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`transfer actions to the Eastern District of New York. [D.E. 1].
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`Case CAN/4:21-cv-01600 Document 33 Filed 04/13/21 Page 2 of 24
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`
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`TABLE OF CONTENTS
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`TABLE OF CONTENTS ................................................................................................................ ii
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`TABLE OF AUTHORITIES ......................................................................................................... iii
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`INTRODUCTION .......................................................................................................................... 1
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`FACTUAL BACKGROUND ......................................................................................................... 2
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`I. Filed Cases as of April 13, 2021 ...................................................................................... 2
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`II. Rising Concerns Regarding the Presence of Toxic Heavy Metals in Baby Foods .......... 3
`
`III. Congressional Investigation Finds Substantial Presence of Heavy Metals in Baby Foods
`Sparking National Outrage ............................................................................................... 4
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`IV. Dangers of Toxic Heavy Metals to Babies and Children ............................................... 10
`
`ARGUMENT ................................................................................................................................ 12
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`I. The Small Number of Personal Injury Actions Are Not Fit for Centralization under 28
`U.S.C. § 1407 ................................................................................................................. 13
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`II. Should the Court Centralize all Related Actions, Centralization in the Northern District
`of California Would Be Most Convenient for Parties and Witnesses Because the
`Majority of Plaintiffs, Including One of the Defendants, Are Located There................ 16
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`In re Adderall XR (Amphetamine/Dextroamphetamine) Mktg., Sales Practices & Antitrust Litig.,
`968 F. Supp. 2d 1343 (J.P.M.L. 2013) ...................................................................................... 14
`
`In re Best Buy Co., Inc., Cal. Song-Beverly Credit Card Act Litig.,
`804 F. Supp. 2d 1376 (J.P.M.L. 2011) ...................................................................................... 14
`
`In re ClassicStar Mare Lease Litig.,
`528 F. Supp. 2d 1345 (J.P.M.L. 2007) ................................................................................ 17, 19
`
`In re Crest Sensitivity Treatment & Prot. Toothpaste Mktg. & Sales Practices Litig.,
`867 F. Supp. 2d 1348 (J.P.M.L. 2012) ................................................................................ 14, 15
`
`In re First Am. Fin. Corp. Customer Data Sec. Breach Litig.,
`396 F. Supp. 3d 1372 (J.P.M.L. 2019) ............................................................................ 1, 14, 15
`
`In re Mattel, Inc., Toy Lead Paint Prod. Liab. Litig.,
`528 F. Supp. 2d 1367 (J.P.M.L. 2007) ................................................................................ 17, 19
`
`In re Prevagen Prod. Mktg. & Sales Practices Litig.,
`283 F. Supp. 3d 1379 (J.P.M.L. 2017) ...................................................................................... 14
`
`In re Sigg Switzerland (USA), Inc., Aluminum Bottles Mktg. & Sales Practices Litig.,
`682 F. Supp. 2d 1347 (J.P.M.L. 2010) ...................................................................................... 17
`
`In re: Lifewatch, Inc., Tel. Consumer Prot. Act (TCPA) Litig.,
`140 F.Supp.3d 1342 (J.P.M.L.2015) ......................................................................................... 13
`
`In re: OxyElite Pro & Jack3d Prod. Liab. Litig.,
`11 F. Supp. 3d 1340 (J.P.M.L. 2014) ........................................................................................ 15
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`Pat. Litig.,
`547 F. Supp. 2d 1383 (J.P.M.L. 2008) ...................................................................................... 17
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`Statutes
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`28 U.S.C. § 1407 .............................................................................................................. i, ii, 13, 14
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`Other Authorities
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`2020 WL 588473 (J.P.M.L. Oct. 2, 2020) .................................................................................... 19
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`A Look at the Judicial Panel on Multidistrict Litigation,
`72 F.R.D. 211 (1977) ................................................................................................................ 16
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`Manual For Complex Litigation (Fourth) § 20.131 (2004) .......................................................... 16
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`INTRODUCTION
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`These lawsuits follow recent revelations that baby foods sold to unknowing parents and
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`vulnerable infants within the U.S. contain astronomical quantities of toxic heavy metals, namely
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`arsenic, lead, mercury, and cadmium. The vast majority of the related cases are class actions
`
`alleging economic injuries, whereas there are only three personal injury actions filed alleging
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`that exposure to defendants’ baby foods caused neurodevelopmental disorders in small children,
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`with two of the cases specifically alleging autism spectrum disorder (“ASD”) and Attention
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`Deficit Hyperactivity Disorder (“ADHD”). It is not often that opposing parties agree, but this is
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`one of the rare instances where plaintiffs and defendants concur: that the personal injury actions
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`do not warrant centralization. However, should the Court centralize all related actions, Plaintiffs
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`submit that the Northern District of California is the most appropriate venue for this MDL.
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`First, this Court has in the past repeatedly denied centralization of a small number of
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`actions where parties can efficiently manage cases through cooperation of counsel, coordination,
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`and other alternatives to centralization. See In re First Am. Fin. Corp. Customer Data Sec.
`
`Breach Litig., 396 F. Supp. 3d 1372, 1373 (J.P.M.L. 2019). That is the case here. There have
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`only been three personal injury actions filed to date—pending in just two courts—compared to
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`over eighty putative class actions pending in district courts through the country. The same
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`constellation of counsel represent the parties, with two out of the three personal injury actions
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`being represented by the same counsel and pending before the same court in the Northern
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`District of California. Accordingly, the interests of efficiency, convenience of parties and
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`witnesses, and judicial resources militate against centralizing the personal injury actions.
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`Second, notwithstanding some factual overlap between the personal injury and class
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`actions, there are issues unique to the personal injury claims—such as medical causation, certain
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`aspects of liability, and punitive damages—not relevant to the class actions, which are not
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`concerned with medical causation or any specific personal injury. Conversely, the class actions
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`will focus on how to estimate class-wide economic damages, i.e., price premium or full-refund.
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`This entails different experts and evidence for the personal injury claims compared with the class
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`actions. Thus, carving out the personal injury actions is not bound to disturb any centralized
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`proceeding or result in inefficiencies—there are too few personal injury actions, and they involve
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`fundamentally different issues than the class claims to warrant centralization, as acknowledged
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`by defendants. See Defendants’ Interested Party Response at 3.
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`Third, should the Court be inclined to centralize the personal injury and class actions,
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`Plaintiffs submit that the Northern District of California is the best venue for this MDL. In
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`addition to one of the defendants being located in the Northern District of California, the
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`majority of plaintiffs and events in this litigation are anticipated to be centered in California.
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`The state constitutes the major share of organic food consumption in the U.S. (most of the baby
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`foods at issue in this litigation are sold as organic) and is the single largest producer of
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`ingredients used to manufacture defendants’ baby foods. And, California has the highest birth-
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`rate compared to any other U.S. state, providing another reason to anticipate that the majority of
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`plaintiffs will be located in California.
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` Moreover, the first class action in the country was filed in the Northern District of
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`California and there are currently eight cases (including two out of the three personal injury
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`actions) pending in that court, seven of which are before the Honorable Yvonne Gonzalez
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`Rogers. As explained further below, Judge Rogers is an experienced and capable MDL judge
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`who is currently overseeing a small MDL that should not pose any obstacles to centralizing the
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`baby foods cases in her court. The Northern District of California is a well-resourced court that
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`has successfully managed numerous MDLs. The court’s location in the business hub of
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`California’s Bay Area lies in close proximity to two large international airports and numerous
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`lodging, restaurant, and business services that can accommodate the efficient conduct of an
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`MDL.
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`FACTUAL BACKGROUND
`
`I.
`
`Filed Cases as of April 13, 2021
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`This litigation involves two different theories of liability—one based on economic
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`damages (the putative class actions) and one based on personal injury (the personal injury
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`actions). Although both cases involve the presence of neurotoxic heavy metals in baby food,
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`numerically, the personal injury actions are dwarfed by the number of class suits. As of the date
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`of this submission, there are only five plaintiffs—specifically children—in three complaints who
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`allege that exposure to defendants’ baby foods caused them neurodevelopmental disorders;
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`whereas there are over eighty class actions pending throughout the country. All of the pure
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`personal injury plaintiffs are located in the Northern District of California; one is located in New
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`York, although that case (Walls, et al. v. Beech-Nut, et al. Case No. 1:21-cv-00870) is primarily
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`a class action with a personal injury component thrown in.
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`II.
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`Rising Concerns Regarding the Presence of Toxic Heavy Metals in Baby Foods
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`In October 2019, an alliance of nonprofit organizations, scientists and donors named
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`“Happy Babies Bright Futures” (“HBBF”), dedicated to designing and implementing “outcomes-
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`based programs to measurably reduce babies’ exposures to toxic chemicals”1, published a report
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`investigating the presence of Toxic Heavy Metals in baby foods.2 The HBBF Report, which
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`received little publicity, tested 168 different baby foods sold on the U.S. market and concluded
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`that “[n]inety-five percent of baby foods tested were contaminated with one or more of four toxic
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`heavy metals—arsenic, lead, cadmium and mercury, including that of defendants’ baby foods.
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`All but nine of 168 baby foods contained at least one metal; most contained more than one.”3
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`Specifically, the HBBF report identified “puffs and other snacks made with rice flour”,
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`“[t]eething biscuits and rice rusks”, “infant rice cereal”, “apple, pear, grape and other fruit
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`juices”, and “carrots and sweet potatoes” manufactured by baby food companies as particularly
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`high in Toxic Heavy Metals.4
`
`
`1 https://www.hbbf.org/solutions.
`2 Healthy Babies Bright Futures, What’s in My Baby’s Food? A National Investigation Finds 95
`Percent of Baby Foods Tested Contain Toxic Chemicals That Lower Babies’ IQ, Including
`Arsenic and Lead (Oct. 2019) (“HBBF Report”), available at:
`www.healthybabyfood.org/sites/healthybabyfoods.org/files/2019-
`10/BabyFoodReport_FULLREPORT_ENGLISH_R5b.pdf).
`3 Id. at 6.
`4 Id. at 10-11
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`The results of the HBBF report were consistent with that of the FDA which had, in 2017,
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`detected one or more of the four Toxic Heavy Metals in 33 of 39 types of baby food tested.5
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`However, the HBBF reported that “[f]or 88 percent of baby foods tested by HBBF—148 of 168
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`baby foods—FDA has failed to set enforceable limits or issue guidance on maximum safe
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`amounts.”6 To that end, the HBBF, along with other concerned stakeholders, urged the FDA to,
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`among other measures, “[s]et health-protective standards for heavy metals, prioritizing foods that
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`offer FDA the greatest opportunity to reduce exposure, considering additive effects of the
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`multiple metals detected in foods, and explicitly protecting against neurodevelopmental
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`impacts… Implement a proactive testing program for heavy metals in foods consumed by babies
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`and toddlers…[and] [e]stablish a goal of no measurable amounts of cadmium, lead, mercury, and
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`inorganic arsenic in baby and children’s food, in recognition of the absence of a known safe level
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`of exposure, and work with manufacturers to achieve steady progress.”7 The HBBF also invited
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`baby food manufacturers to share its goal of reducing “heavy metals in baby food to levels as
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`low as reasonably achievable.”8
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`III. Congressional Investigation Finds Substantial Presence of Heavy Metals in Baby
`Foods Sparking National Outrage
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`On February 4, 2021, the U.S. House of Representatives’ Subcommittee on Economic
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`and Consumer Policy, Committee on Oversight and Reform, published a report detailing its
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`findings that Toxic Heavy Metals—including arsenic, cadmium, lead, and mercury—were
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`present in “significant levels” in numerous commercial baby food products.9 Four companies—
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`Hain, Gerber, Nurture, and Beech-Nut —produced internal testing policies, test results for
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`ingredients and finished products, and documentation about what the companies did with
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`ingredients and/or finished products that exceeded their internal testing limits. Three
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`
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`5 Id. at 6.
`6 Id. at 6.
`7 Id. at 8-9.
`8 Id. at 9
`9 See generally Subcommittee Rpt.
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`companies—Plum, 10 Walmart, and Sprout—refused to cooperate.11
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`The Subcommittee reported that the data submitted by the companies unequivocally
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`revealed that a substantial number of the companies’ finished products and/or ingredients used to
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`manufacture the Baby Foods are tainted with significant levels of Toxic Heavy Metals, namely
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`inorganic arsenic, lead, cadmium, and mercury.12 Specifically, the Subcommittee concluded the
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`following:
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`ARSENIC was present in baby foods made by all responding companies:
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`• Nurture (HappyBABY) sold baby foods after tests showed they contained as
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`much as 180 parts per billion (ppb) inorganic arsenic. Over 25% of the products
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`Nurture tested before sale contained over 100 ppb inorganic arsenic. Nurture’s
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`testing shows that the typical baby food product it sold contained 60 ppb
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`inorganic arsenic.
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`• Hain (Earth’s Best Organic) sold finished baby food products containing as much
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`as 129 ppb inorganic arsenic. Hain typically only tested its ingredients, not
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`finished products. Documents show that Hain used ingredients testing as high as
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`309 ppb arsenic.
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`• Beech-Nut used ingredients after they tested as high as 913.4 ppb arsenic. Beech-
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`Nut routinely used high-arsenic additives that tested over 300 ppb arsenic to
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`address product characteristics such as “crumb softness.”
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`• Gerber used high-arsenic ingredients, using 67 batches of rice flour that had tested
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`over 90 ppb inorganic arsenic.
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`LEAD was present in baby foods made by all responding companies:
`
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`10 Plum’s parent corporation, Campbell’s, responded to the Subcommittee’s inquiries, and the
`Subcommittee Report references the parent corporation as opposed to Plum. However, as Plum
`is the Defendant in this lawsuit, any references to the Subcommittee’s findings regarding
`Campbell are attributed to Plum. The same Baby Foods are at issue.
`11 Subcommittee Rpt. at 2.
`12 Id. at 2-3.
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`• Nurture (HappyBABY) sold finished baby food products that tested as high as
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`641 ppb lead. Almost 20% of the finished baby food products that Nurture tested
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`contained over 10 ppb lead.
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`• Beech-Nut used ingredients containing as much as 886.9 ppb lead. It used many
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`ingredients with high lead content, including 483 that contained over 5 ppb lead,
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`89 that contained over 15 ppb lead, and 57 that contained over 20 ppb lead.
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`• Hain (Earth’s Best Organic) used ingredients containing as much as 352 ppb lead.
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`Hain used many ingredients with high lead content, including 88 that tested over
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`20 ppb lead and six that tested over 200 ppb lead.
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`• Gerber used ingredients that tested as high as 48 ppb lead; and used many
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`ingredients containing over 20 ppb lead.
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`CADMIUM was present in baby foods made by all responding companies:
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`• Beech-Nut used 105 ingredients that tested over 20 ppb cadmium. Some tested
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`much higher, up to 344.55 ppb cadmium.
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`• Hain (Earth’s Best Organic) used 102 ingredients in its baby food that tested over
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`20 ppb cadmium. Some tested much higher, up to 260 ppb cadmium.
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`• Sixty-five percent of Nurture (HappyBABY) finished baby food products
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`contained more than 5 ppb cadmium.
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`• Seventy-five percent of Gerber’s carrots contained cadmium in excess of 5 ppb,
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`with some containing up to 87 ppb cadmium.
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`MERCURY was detected in baby food of the only responding company that tested for it:
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`• Nurture (HappyBABY) sold finished baby food products containing as much as
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`10 ppb mercury.
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`• Beech-Nut and Hain (Earth’s Best Organic) do not even test for mercury in baby
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`food.
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`• Gerber rarely tests for mercury in its baby foods.13
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`• These levels surpass the limits allowed by U.S. regulatory agencies. To be sure,
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`the FDA has set the maximum contaminant levels (“MCL”) in bottled water at 10
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`ppb inorganic arsenic, 5 ppb lead, and 5 ppb cadmium, and the EPA has capped
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`the allowable level of mercury in drinking water at 2 ppb. However, these limits
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`were created in reference to adult exposure, not infants. Compared to these
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`thresholds, the test results of the Defendants’ Baby Foods and their ingredients
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`are hundreds of times above that allowed by the FDA and EPA for these toxic
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`heavy metals.14
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`Compounding these troubling discoveries, the manufacturers set internal limits for the
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`presence of Toxic Heavy Metals in their foods that were, themselves, dangerously high and then
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`routinely failed to abide by those inadequate standards. For example, the Subcommittee found
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`that Hain (Earth’s Best Organic) set an internal standard of 200 ppb for arsenic, lead, and
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`cadmium in some of its ingredients. But Hain routinely exceeded its internal policies, using
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`ingredients containing 353 ppb lead and 309 ppb arsenic. Hain justified these deviations based
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`on “theoretical calculations,” even after Hain admitted to FDA that its testing underestimated
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`final product toxic heavy metal levels.15
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`As found by the Subcommittee, the companies have willfully sold—and continue to
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`sell—contaminated Baby Foods notwithstanding their full awareness of these unacceptably high
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`levels of Toxic Heavy Metals in their products. In August 2019, Hain held a closed-door
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`meeting with the FDA during which Hain delivered a presentation to the agency acknowledging
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`the Toxic Heavy Metal problem in its Baby Food.16 In the PowerPoint slides presented during
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`
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`13 Id. at 2-4.
`14 HBBF Rpt. at 19.
`15 Id. at 4-5.
`16 Hain, PowerPoint Presentation to Food and Drug Administration: FDA Testing Result
`Investigation (Aug. 1, 2019) (“2019 Hain & FDA Meeting”), available at:
`https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2.pdf).
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`the meeting—only made public by the Subcommittee—Hain confirmed that some of the
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`ingredients in its Baby Food contain as much as between 108 to 129 ppb of arsenic, specifically
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`noting “[p]reliminary investigation indicates Vitamin/Mineral Pre-Mix may be a major
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`contributing factor”17. Additionally, the presentation revealed that:
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`Hain’s corporate policy to test only ingredients, not final products, underrepresents the
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`levels of toxic heavy metals in baby foods. In 100% of the Hain baby foods tested, inorganic
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`arsenic levels were higher in the finished baby food than the company estimated they would be
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`based on individual ingredient testing. Inorganic arsenic was between 28% and 93% higher in
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`the finished products;
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`Many of Hain’s baby foods were tainted with high levels of inorganic arsenic—half of its
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`brown rice baby foods contained over 100 ppb inorganic arsenic; its average brown rice baby
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`food contained 97.62 ppb inorganic arsenic; and
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`Naturally occurring toxic heavy metals may not be the only problem causing the unsafe
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`levels of toxic heavy metals in baby foods; rather, baby food producers like Hain may be adding
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`ingredients that have high levels of toxic heavy metals into their products, such as
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`vitamin/mineral pre-mix.18
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`Moreover, although Walmart, Plum, and Sprout refused to cooperate with the
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`Subcommittee’s investigation, independent data confirms that the Baby Food of these companies
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`is similarly tainted. For example, the HBBF Report observed that Walmart’s Parent’s Choice
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`brand products contain 66 ppb inorganic arsenic, 26.9 ppb lead, 26.1 ppb cadmium, and 2.05 ppb
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`mercury.19
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`17 Id. at *9.
`18 Subcommittee Report at 5-6
`19 See HBBF Report at 21, 22, 25-27.
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`Instead of producing any substantive information, Plum provided the Subcommittee with
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`a self-serving spreadsheet declaring that every one of its products “meets criteria”,20 while
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`declining to state what the criteria were. Plum’s self-serving testing summary speaks volumes
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`since the summary does not show the levels of Toxic Heavy Metals that the testing found or the
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`levels that would “meet criteria.” Plum also conceded that, for mercury (a powerful neurotoxin),
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`the company has no criterion whatsoever, stating: “No specific threshold established because no
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`high-risk ingredients are used.”21 However, despite Plum having no mercury threshold, it still
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`marked every food as “meets criteria” for mercury. The Subcommittee even commented that
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`“[t]his misleading framing—of meeting criteria that do not exist—raises questions about what
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`[Plum’s] other thresholds actually are, and whether they exist.”22 Indeed, HBBF’s independent
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`testing confirms the presence of Toxic Heavy Metals in Plum’s Baby Food:
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`Sprout did not respond to the Subcommittee at all. Again, the testing conducted by
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`HBBF confirms that Sprout’s Baby Foods are similarly tainted by substantial amounts of Toxic
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`20 Campbell, Product Heavy Metal Test Results (Dec. 11, 2019), available at:
`https://oversight.house.gov/sites/democrats.oversight.house.gov/files/12.pdf).
`21 Id. at 00046.
`22 Subcommittee Report at 45.
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`Heavy Metals:
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`IV. Dangers of Toxic Heavy Metals to Babies and Children
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` According to the World Health Organization (“WHO”), Toxic Heavy Metals,
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`specifically arsenic, cadmium, lead, and mercury, pose a “major public health concern” for
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`children.23 The Occupational Safety and Health Administration (“OSHA”) has warned that these
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`metals “may build up in biological systems and become a significant health hazard.”24 Indeed,
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`the Department of Health and Human Services’ Agency for Toxic Substances and Disease
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`Registry (“ATSDR”) ranks arsenic as number one among substances present in the environment
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`that pose the most significant potential threat to human health, followed by lead (second),
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`mercury (third), and cadmium (seventh).25
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`The threat presented by Toxic Heavy Metals to children’s health is widely shared by the
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`global scientific community. As one recent study observed, “[t]he implications of heavy metals
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`with regards to children’s health have been noted to be more severe compared to adults. The
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`elements’ harmful consequences on children health include mental retardation, neurocognitive
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`disorders, behavioral disorders, respiratory problems, cancer and cardiovascular diseases. Much
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`attention should be given to heavy metals because of their high toxicity potential, widespread
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`use, and prevalence.”26 Children and, even more so, babies have higher exposure to metals
`
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`23 World Health Organization, Children’s Health and the Environment WHO training Package
`for the Health Sector (October 2011), available at:
`https://www.who.int/ceh/capacity/heavy_metals.pdf.
`24 OSHA, Toxic Metals, available at: https://www.osha.gov/toxic-metals.
`25 ATSDR, ATSDR’s Substance Priority List (2019), available at:
`www.atsdr.cdc.gov/spl/index.html#2019spl.
`26 Osman, et al., Exposure routes and health effects of heavy metals on children,
`32 BIOMETALS 563–573 (2019), available at:
`https://link.springer.com/article/10.1007%2Fs10534-019-00193-5#citeas.
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`compared to adults because they consume more food in relation to their body weight and absorb
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`metals more readily than adults by 40 to 90%.27 And, the mechanisms needed to metabolize and
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`eliminate heavy metals are comparatively undeveloped in childhood, with babies having weaker
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`detoxifying mechanisms and poorer immune systems than adults.28 For example, liver pathways
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`that in adulthood metabolize absorbed arsenic do not mature until mid-childhood; un-excreted
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`arsenic thus continues to circulate and is deposited in other organs.29 According to Linda
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`McCauley, Dean of the Nell Hodgson Woodruff School of Nursing at Emory University, who
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`studies environmental health effects, “[n]o level of exposure to these [heavy] metals has been
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`shown to be safe in vulnerable infants.”30 Thus, “the major windows of developmental
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`vulnerability occur during infancy and early childhood due to continuing brain development after
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`birth.”31 In short, even small amounts of exposure to Toxic Heavy Metals can have devastating
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`health outcomes for babies and children.
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`Specifically, all of the heavy metals found in large quantities in defendants’ baby foods
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`have been consistently associated with Autism Spectrum Disorder (“ASD”) and Attention
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`Deficit Hyperactive Disorder (“ADHD”) in pediatric populations. Recent meta-analyses,
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`reviewing large bodies of prior research, confirm the causal associations: “After reviewing 14
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`studies on arsenic exposure, “[w]e concluded that there is consistent evidence supporting a
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`positive association between early life [arsenic] exposure and diagnosis of ASD[.]”32 And,
`
`
`27 Stein, et al., In harm’s way: toxic threats to child development, 23 J DEV BEHAV PEDIATR.1
`S13–S22 (2002).
`28 Gorini, et al., The Role of Heavy Metal Pollution in Neurobehavioral Disorders: a Focus on
`Autism 1 REV. J. AUTISM DEV. DISORD. 1, 354–372 (2014), available at:
`https://link.springer.com/article/10.1007/s40489-014-0028-3.
`29 Del Rio, et al., A comparison of arsenic exposure in young children and home water arsenic in
`two rural West Texas communities 17 BMC PUBLIC HEALTH 850 1-13 (2017), available at:
`https://bmcpublichealth.biomedcentral.com/articles/10.1186/s12889-017-4808-4.
`30 Roni Caryn Rabin, Some Baby Food May Contain Toxic Metals, U.S. Reports (NY TIMES, Feb
`4. 2021), available at: https://www.nytimes.com/2021/02/04/health/baby-food-metals-
`arsenic.html
`31 Gorini, et al. supra.
`32 Wang, et al., Exposure to Inorganic Arsenic and Lead and Autism Spectrum Disorder in
`
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`Case CAN/4:21-cv-01600 Document 33 Filed 04/13/21 Page 16 of 24
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`identifiable biomarkers, such as blood, urine, and hair samples, lend strength to the observed
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`associations: “All three bio samples in the meta-analysis showed a positive association between
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`Hg and ASD, with hair at a significant level and urine and blood at a highly significant level.”33
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`Similarly, with respect to ADHD, two large recent meta-analysis concluded that “exposure to
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`lead and arsenic was independently associated with ADHD. These results are consistent with
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`previous published work that has already revealed that both metals are potential neurotoxic for
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`development”34 and “[t]he evidence from the studies allowed us to establish that there is an
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`association between lead and ADHD and that even low levels of lead raise the risk.”35 In short,
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`defendants’ toxic baby foods have no business being the bodies of infants.
`
`ARGUMENT
`
`The small number of personal injury actions are not fit for centralization. And
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`Defendants agree in their Interested Party Response. See Defendants’ Interest Party Response at
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`3. As discussed below, this Court has repeatedly held that alternatives to centralization (such
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`cooperation of counsel and coordination) are better suited in such circumstances. And, carving
`
`out the personal injury claims would not disturb a centralized proceeding should one be created.
`
`The inherent contrast between the class actions and personal injury claims—with the latter
`
`involving unique issues such as medical causation—provide an additional reason for not
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`centralizing this small number of personal injury actions with an MDL dominated by class
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`claims.
`
`That said, should the Court be inclined to centralize the personal injury and class actions,
`
`
`Children: A Systematic Review and Meta-Analysis, 21 CHEM RES. TOXICOL. 32, 1904-1919
`(2019), available at: https://pubmed.ncbi.nlm.nih.gov/31549506/.
`33 Sulaiman, et al., Exposure to Aluminum, Cadmium, and Mercury and Autism Spectrum
`Disorder in Children: A Systematic Review and Meta-Analysis, 33 CHEM. RES. TOXICOL. 11,
`2699-2718 (2020), available at: https://pubmed.ncbi.nlm.nih.gov/32990432/.
`34 Muñoz, et al., Attention deficit hyperactivity disorder and its association with heavy metals in
`children from northern Chile, 226 INT. J. HYG. ENVIRON. HEALTH (2020), available at:
`https://europepmc.org/article/med/32106053.
`35 Donzelli, et al., The Association between Lead and Attention-Deficit/Hyperactivity Disorder: A
`Systematic Review, 16 INT. J. ENVIRON. RES. PUBLIC HEALTH 382, 1-14 (2019), available at:
`https://pubmed.ncbi.nlm.nih.gov/30700018/.
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`Case CAN/4:21-cv-01600 Document 33 Filed 04/13/21 Page 17 of 24
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`Plaintiffs submit that the Northern District of California is an appropriate venue for the location
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`of this MDL. As discussed below, the majority of Plaintiffs and a substantial portion of relevant
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`facts are centered in California—a state which grows most of the ingredients used in the U.S.
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`food supply, consumes the largest portion of organic foods (with the majority of products in this
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`litigation being marketed as organic), has the highest rate of births out of any U.S. state, and is
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`the location of one of the defendants, namely Plum. Moreover, the first class action was filed in
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`the Northern District of California and, as of the date of this filing, a total of seven out of the
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`eight Northern District cases are pending before the Honorable Yvonne Gonzalez Rogers who
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`has related the baby food cases