Gerber, Good Start Probiotic Formula Lawsuit MDL Consolidation Sought

A panel of federal judges is scheduled to hear oral arguments next month over whether a multidistrict litigation (MDL) should be formed for all federal class action lawsuits over allegedly misleading claims about the benefits of Gerber Probiotic and Nestle’s Good Start baby food products. 

According to a hearing schedule (PDF) issued by the U.S. Judicial Panel on Multidistrict Litigation (JPML), a motion to consolidate the baby food litigation will be considered on September 20 in New York City.

At the time the motion to consolidate (PDF) was filed in early July, there were a total of 10 probiotic baby food lawsuits filed in five federal courts nationwide against Gerber and Nestle.

All of the complaints involve similar claims that the manufacturers used misleading advertising to promote baby food sold under the Gerber and Good Start labels, which overstated the benefits of probiotics, prebiotics and Omega-3 fatty acids. All of the lawsuits seek class action status.

According to the claims, Nestle USA Inc and Gerber Products Company ran misleading advertisements for five infant formulas and cereals that contained probiotics, prebiotics and Omega-3 fatty acids. The advertisements alleged that the ingredients boosted infant immunity systems, digestive health and also increased their visual and cognitive functions. The products involved in the lawsuits include:

• Gerber DHA & Probiotic Single Grain Cereal
• Good Start Gentle Formula
• Good Star Protect Infant Formula
• Good Start 2 Gentle Formula
• Good Start 2 Protect Formula

All 10 lawsuits were filed between February and April, and are still in their beginning stages. The motion to consolidate them and create a baby food probiotic MDL was filed by Ryan Burns, a plaintiff from Washington state.

Such consolidation is used in complex litigation where there are a large number of claims involving similar allegations or facts. The process is designed to reduce duplicative discovery across many cases, eliminate contradictory pretrial rulings from different judges and to serve the convenience of the witnesses, the parties and the courts.

Burns proposed that the probiotic baby food MDL be placed in the U.S. District Court for the Eastern District of Washington. In the alternative, Burns indicated that the U.S. District Court for the Southern District of California would be a particularly convenient forum as well.