How Abbott Kept Sick Babies From Becoming a Scandal

Sep 6, 2022

Abbott’s lawyers at Jones Day negotiated secret settlements and used scorched earth tactics with families whose infants fell ill after consuming powdered formula.

Early on a Saturday morning in 2013, Mark Bennett, a federal judge, walked into his chambers in the courthouse in Sioux City, Iowa. He’d been out of town for a speaking engagement and was hoping to catch up on work. A surprise awaited him as he entered his office: Cardboard boxes were stacked everywhere. His immediate thought was that another judge might be moving in.

Another judge was not moving in. Judge Bennett was presiding over a case in which Abbott Laboratories, the sprawling health care company that dominated the market for infant formula, was being sued on behalf of a girl, Jeanine Kunkel, who five years earlier had suffered severe brain damage after consuming the company’s powdered formula. Jeanine couldn’t speak, sit up or even swallow, and the tragedy had nearly destroyed her family.

The boxes cluttering Judge Bennett’s chambers were filled in large part with evidence that Abbott’s lawyers wanted to be able to introduce at the upcoming trial.

After more than two decades on the federal bench, Judge Bennett had a pretty good guess as to what was going on. The accusations in the lawsuit posed a threat to Abbott, which had staked its reputation on being family-friendly and devoted to health and safety. Judge Bennett figured that to protect an important client, the company’s outside lawyers, from the international law firm Jones Day, were trying to snow their opponents with tens of thousands of pages of paperwork. Even if the materials were only tangentially related to this particular case, the plaintiffs’ lawyers would need to spend countless hours poring over the documents to see what they contained.

A couple of days later, at a meeting in his chambers, the judge laced into Abbott’s lawyers. Their conduct, he told me, was “the worst by a factor of 10” that he had seen in his 20 years as a judge.

Judge Bennett, who retired in 2019 and now teaches at Drake University’s law school, may not have liked it, but the lawyers were effective. Over the ensuing months, Abbott prevailed in court, the poisoning of a newborn baby went largely unnoticed and the company continued making and selling its powdered formula just as it had done before.

Nobody was prepared for what would happen nearly a decade later. In early 2022, after several infants fell ill and regulators found unsanitary conditions at an Abbott factory in Sturgis, Mich., the company voluntarily recalled its powdered formula and shut the plant. (No proof has emerged that the problems at the Sturgis factory caused the infant illnesses and deaths.)

The closing caused a severe shortage of the formula that most American infants are fed. Desperate parents struggled to feed their children. Angry lawmakers convened hearings. Government agencies opened investigations. The Biden administration organized an airlift to import formula from overseas. The crisis focused attention on shortcomings with food safety and industry oversight.

The scrutiny was new, but the phenomenon wasn’t. Over the years, newborns on rare occasions have fallen sick or died after being fed powdered formula. Until recently, however, the pattern largely lurked below the public and political radar. One big reason is that Abbott and its lawyers, at times deploying scorched earth legal tactics, have repeatedly beaten back attempts to hold the company liable.

Several lawyers who have worked on baby-formula cases said they were not aware of a plaintiff ever beating Abbott or its competitors at trial. “These are tough, tough cases,” said William Marler, a Seattle lawyer who has sued companies for spreading food-borne illnesses.

Much of this, of course, comes down to good lawyering. Jones Day — a 129-year-old law firm with roots in Cleveland and a powerful political practice in Washington — is a goliath in corporate litigation, having represented companies like R.J. Reynolds, Purdue Pharma, General Motors and Smith & Wesson.

Often Jones Day dukes it out with other giant law firms that are also representing enormous companies. When the opposing sides shower each other in paperwork, discovery requests, venue changes and objections, it usually resembles a fair fight. But as the Abbott cases illustrate, when the resources and tactics of Big Law are brought to bear against poor families and their overwhelmed lawyers, the results tend to be lopsided.

Jones Day lawyers told me the firm didn’t do anything unusual or untoward as it sought to fend off families like Jeanine’s. Kevyn Orr, the partner in charge of Jones Day’s U.S. offices, said the firm’s only goal “was to prove the truth that Abbott’s infant formula was not contaminated when it was opened.”

Daniel Reidy, who until his retirement as a Jones Day partner represented Abbott, disputed elements of Judge Bennett’s critique, noting, for example, that the boxes in his chambers also contained the plaintiff’s evidence. Mr. Reidy said the judge was “deeply and irrevocably prejudiced against ‘big firms.’”

There is little doubt, though, that Abbott’s victory streak was one of the forces that kept the connection between infant illness and the powdered formula from becoming a scandal sooner. “If there had been a large verdict, it would’ve gotten a lot of national publicity,” Judge Bennett said. When that didn’t happen, “what’s the focus for the public? Not much.”

I learned about Jones Day’s work for Abbott as I conducted research for my forthcoming book, “Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice.” (This article is largely based on my reporting for the book.)

In January, I asked an Abbott spokesman, Scott Stoffel, for comment. “Healthy infants and children are at the heart of what we do and ensuring the quality and safety of our products is a top priority,” he replied in an email on Jan. 25. “Our products undergo rigorous quality checks,” he went on, “to ensure that they meet both the nutritional and safety needs of infants and children.” In a follow-up email, Mr. Stoffel noted that the company was “very sympathetic to the families in these situations” but that juries had concluded Abbott was not to blame.

Barely three weeks later, Abbott agreed to begin recalling its powdered formula.

‘Time Is on Their Side’

A few large companies control the $2.1 billion market for infant formula — none more so than Abbott, which before this year’s crisis accounted for nearly half of formula sales.

Unlike breast milk and bottled formula, the powdered version is not sterile. (Its advantages include being less expensive than the ready-to-pour variety.) Academic and government studies have repeatedly found that powdered formula can be a breeding ground for a type of bacteria, Cronobacter sakazakii, that in babies can cause meningitis. Even when treated swiftly, the illness can lead to severe brain damage or death.

A study in 2012, by a longtime official at the Centers for Disease Control and Prevention, found that it was “extremely unusual” for Cronobacter infections to occur in babies who were not fed powdered formula. In another paper, published in 2020, other C.D.C. officials studied scores of cases of infant meningitis since 1961 and found that in the vast majority — 79 percent — the baby had recently consumed powdered formula.

But in any individual case, it can be hard to prove what caused an infection. The potentially deadly bacteria resides in dirt and water; studies have found it in kitchens. Because the bacteria can clump together in formula containers, it’s possible for a sample to test negative even if Cronobacter was in the powder that went into a baby’s bottle.

Nick Stein, a lawyer with a small practice in Indiana, recalled the first time he encountered a case involving contaminated formula. A woman walked into his office with her toddler, limp in her arms, and explained that the child had suffered brain damage after being fed formula. Mr. Stein negotiated a settlement. More cases followed, and they, too, resulted in settlements that required Mr. Stein and his clients to keep quiet.

In 2005, Mr. Stein received an email from Kimberly Sisk in rural Pisgah Forest, N.C. Her son, Slade, had suffered debilitating brain damage after consuming Abbott’s Similac powdered infant formula in 2004. Ms. Sisk, who lived in a mobile home and worked as a house cleaner, faced a lifetime of medical costs. In February 2007, Mr. Stein and a colleague, Stephen Meyer, sued Abbott in state court in North Carolina.

The ensuing seven-year battle would become a case study for how firms like Jones Day use their mastery of the legal system to grind down — and in some cases attack — plaintiffs who have limited money and time on their hands.

The first volley came in late 2007. Jones Day filed a motion seeking to remove Mr. Stein and Mr. Meyer from the case. The rationale was that, in an unrelated infant-formula case in Kentucky, Mr. Meyer had been in touch with an expert witness that Abbott had used in a different case. It turned out the expert had an ongoing relationship with Abbott. None of this had anything to do with Ms. Sisk’s case. But the trial judge concluded that the contact with the expert “constitutes the appearance of impropriety” and granted Abbott’s motion. An appeals court reversed the decision. Then, in 2010, the State Supreme Court upheld the initial ruling.

More than three years had passed since Ms. Sisk’s lawsuit was filed, and the case hadn’t progressed. Now she had no lawyers. Mr. Stoffel, the Abbott spokesman, denied that the company was trying to delay the legal proceedings, but Ms. Sisk was skeptical. “Time is on their side,” she said. “It behooves them to stretch it out.”

Mr. Stein, for his part, sounded a little awestruck by Jones Day’s hardball tactics. “It’s a different league than we all play in,” he told me. “It was brutal.”

Ms. Sisk hired another lawyer, Stephen Rathke, a former local prosecutor in Minnesota. He refiled the suit in state court. Abbott then removed the case to federal court, which essentially restarted the legal process.

 

Read the full article at the New York Times