But in any individual case, it is difficult to prove what caused the infection. Potentially deadly bacteria reside in dirt and water; Studies have found it in the kitchen. Because bacteria can clump together in the container of formula, the sample can give a negative result even if the Cronobacter present in the powder is passed into the baby’s bottle.
Nick Stein, an attorney with a small practice in Indiana, recalls the first time he encountered a case involving contaminated formula. A woman walked into his office with her toddler, limping in her arms, and explained that the baby had suffered brain damage after formula feeding. Mr. Stein negotiated a settlement. More cases followed, and they also led to settlements that silenced Mr. Stein and his clients.
In 2005, Mr. Stein received an email from Kimberly Sisk in rural Pisgah Forest, NC. Her son, Slade, suffered brain damage after drinking Abbott’s Similac formula in 2004. Mrs. Sisk, who lives in a house mobile and working as a house cleaner, facing lifelong medical costs. In February 2007, Mr. Stein and a colleague, Stephen Meyer, sued Abbott in North Carolina state court.
The seven-year war would later become a case study of how companies like Jones Day used their savvy legal systems to take down – and in some cases attack – the causes of death. Single has little money and time on hand.
The first volley came in late 2007. Jones Day filed a motion to remove Mr. Stein and Mr. Meyer from the case. The rationale is that, in an unrelated formula milk case in Kentucky, Mr. Meyer contacted an expert witness that Abbott used in another case. It turns out that this specialist has an ongoing relationship with Abbott. It has nothing to do with Miss Sisk’s case. But the trial judge concluded that the contact with the expert “created the appearance of impropriety” and granted Abbott’s recommendation. An appeals court overturned the decision. Then, in 2010, the State Supreme Court upheld the original ruling.
More than three years have passed since Ms. Sisk’s case was filed, and the case still hasn’t made any progress. Now she doesn’t have a lawyer. Mr. Stoffel, a spokesman for Abbott, denied that the company was trying to delay legal proceedings, but Ms. Sisk was skeptical. “Time is on their side,” she said. “Conceivably they stretched it out.”