Mark Bennett, a federal judge, walked into his chambers in the courthouse in the early hours of a Saturday morning in July. He was hoping to get back to work after being out of town. As he entered his office, he was surprised to see a lot of cardboard boxes. He thought another judge might move in.
A judge was not in the room. Judge Bennett was presiding over a case in which Abbott Laboratories, the health care company that dominated the market for infant formula, was being sued on behalf of a girl who had suffered brain damage after consuming the company's powdered formula. The tragedy almost destroyed Jeanine and her family.
The boxes in Judge Bennett's chambers were filled with evidence that Abbott's lawyers wanted to present at the trial.
After more than 20 years on the federal bench, Judge Bennett had a pretty good idea of what was going on. The accusations in the lawsuit posed a threat to Abbott, which had staked its reputation on being family-friendly. In order to protect an important client, the company's outside lawyers from Jones Day were trying to snow their opponents with tens of thousands of pages of paperwork. If the materials were only related to this case, the lawyers would have to spend a lot of time looking over the documents.
The judge reprimanded Abbott's lawyers at a meeting in his chambers. He said that their conduct was the worst he had ever seen as a judge.
The lawyers were effective even though Judge Bennett didn't like it. The company continued to make and sell powdered formula despite the poisoning of a newborn baby and Abbott's victory in court.
There was no one prepared for what would happen next. After several infants fell ill and regulators found unsanitary conditions at Abbott's factory in Michigan, the company voluntarily recalled its powdered formula. There is no evidence that the problems at the factory caused the illnesses and deaths of infants.
Most American infants don't have enough formula to eat because of the closing. Parents were struggling to feed their children. Lawmakers were angry and held hearings. Government agencies are looking into the matter. The formula was imported from overseas. Food safety and industry oversight were the focus of the crisis.
The phenomenon wasn't new. Newborns have fallen sick or died after being fed powdered formula many times. The pattern was mostly hidden under the radar until recently. Abbott and its lawyers frequently use scorched earth legal tactics to beat back attempts to hold the company responsible.
Several lawyers who have worked on baby-formula cases said they didn't know that a person could beat Abbott at trial. William Marler is a Seattle lawyer who has sued companies for food-borne illnesses.
Good lawyering is a big part of this. With roots in Cleveland and a powerful political practice in Washington, Jones Day is a goliath in corporate litigation.
Jones Day is often at odds with other large law firms. It usually resembles a fair fight when the opposing sides give each other paperwork. When the resources and tactics of Big Law are brought to bear against poor families and their lawyers, the results tend to be skewed.
Jones Day lawyers told me that the firm didn't do anything strange as it tried to fight off Jeanine's family. The only goal of Jones Day was to prove that Abbott's infant formula was not contaminated when it was opened.
The boxes in his chambers also contained the plaintiff's evidence, which was disputed by DanielReidy, who until his retirement as a Jones Day partner represented Abbot. The judge was prejudiced against large firms.
The link between infant illness and powdered formula was kept from becoming a scandal by Abbott's victory streak. It would get a lot of national publicity if there had been a large verdict. What is the focus for the public? It wasn't much.
As I researched for my book, "Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice," I learned that Jones Day worked for Abbott. The article is mostly based on what I wrote for the book.
Scott Stoffel was an Abbott spokesman. Ensuring the quality and safety of our products is a top priority and healthy infants and children are at the heart of what we do. He said that their products undergo rigorous quality checks to make sure they meet the needs of infants and children. The company was sympathetic to the families but juries had decided Abbott was not to blame.
Abbott decided to recall its powdered formula within three weeks.
Before this year's crisis, Abbott accounted for nearly half of formula sales, and it is still the largest company in the market.
The powdered version isn't sterile. Being cheaper than the ready-to-pour variety is one of its advantages. Studies have shown that powdered formula can be a breeding ground for Cronobacter sakazakii, a type of bacterium that can cause Meningitis in infants. Severe brain damage can be caused by the illness.
It was found that babies who were not fed powdered formula were more likely to get Cronobacter infections. In a paper published in 2020, other C.D.C. officials studied scores of cases of infant meningitis and found that most of the babies had recently eaten powdered formula.
It can be difficult to prove the cause of an illness. Studies have shown that the potentially deadlybacteria reside in dirt and water. If Cronobacter was in the powder that went into a baby's bottle, it is possible for a sample to be negative.
The first case that Nick Stein encountered was a contaminated formula case. A woman walked into his office with her toddler limp in her arms and said that the child had suffered brain damage after being fed formula. Mr. Stein was able to reach an agreement. More cases resulted in settlements that required Mr. Stein and his clients to stay quiet.
Mr. Stein received an email from the mother of a child who had suffered brain damage after eating infant formula. Ms. Sisk lived in a mobile home and worked as a house cleaner for a long time. In February 2007, Mr. Stein and Stephen Meyer filed a lawsuit against Abbott.
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, the people who have less money and time on their hands.
Late 2007, the first volley came. Jones Day wants Mr. Stein and Mr. Meyer removed from the case. In an unrelated infant-formula case in Kentucky, Mr. Meyer had been in contact with an expert witness. The expert had a relationship withAbbott. This had nothing to do with Ms. Sisk. The trial judge decided that the contact with the expert constituted the appearance of impropriety and granted the motion. The decision was reversed. The initial ruling was upheld by the supreme court.
The case hadn't progressed after more than three years. She didn't have a lawyer anymore. The spokesman for Abbott denied that the company was attempting to delay the legal proceedings. She said that time was on their side. They need to stretch it out.
Mr. Stein was impressed by Jones Day's hardball tactics. He said that it was a different league than the one we all play in. It was really bad.
Stephen Rathke was a local prosecutor in Minnesota. The suit was filed in state court. The case was removed from state court to federal court.
The powdered formula that Ms. Sisk had in her possession was found to be free of Cronobacter. The kitchen sink had been tested and found to have traces of thebacteria.
Ms. Sisk said she dumped her son's unfinished milk down the drain because she was a neat freak. Jones Day said that it was a sign that the Cronobacter that caused the illness came from Ms. Sisk's home. It's not possible to know who was right.
The case was going on for a long time. Jones Day was reprimanded by a federal judge for making "nonsensical" claims that were a waste of judicial resources.
The trial was supposed to start in the early part of the year, but was delayed due to Slade's illness. The case was offered to be settled for $900,000. She and her lawyers thought that was inadequate and she was staring at $3 million in expenses. If I settled, they told me to keep everything quiet. That wasn't going to work.
The settlement was turned down by Ms. Sisk. A restraining order that was imposed against a member of the Sisk family in 2012 was to be introduced as evidence at the trial. The restraining order was issued because of an assault that did not involve Ms. Jones Day said it was relevant because of the stress it caused.
The lawyer for Ms. Sisk wrote in a court filing that this was nothing more than an attempt to taint the family. Jones Day didn't mention the restraining order.
The firm did not need it to prevail. Jones Day raised doubts about the source of thebacteria. The jury decided that Abbott wasn't responsible.
Jones Day wanted a court order to seal some trial testimony and evidence because they contained confidential information about Abbott's testing and food safety protocols. When the judge granted the request, the details about the factory in Michigan that was shut down vanished from the public eye. Last month, Abbott announced that it would resume making infant formula in Sturgis and that the product would be available in about six weeks.
Mr. Rathke was fighting Abbott in a similar case in Iowa while working on the Sisk lawsuit. It would show how corporate litigators can flatten outmatched opponents and possibly cross ethical lines in the process.
When Jeanine and her twin brother were 12 days old, they were diagnosed with Meningitis after being fed Abbott's powdered formula in a gift bag.
I was told by Jeanine's parents that her twin did not drink the formula and did not get sick.
They didn't have a lot of money. Troy used his job as a construction worker to procure carpets and other materials for their small house. The pressure of caring for a brain-injured child was putting a strain on their marriage.
Her mother urged her to call Mr. Stein after seeing a TV ad for him. Mr. Stein referred the Kunkels to Mr. Rathke because he lost his appetite for fighting. Mr. Rathke sued Abbott in order to pay for the care of Jeanine for the rest of his life.
The judge became troubled by what he saw from Jones Day. There was a large amount of evidence in his chambers. He flipped through the transcripts of depositions taken by Mr. Rathke and Ms. Ghezzi. The judge was surprised by what he read.
Ms. Ghezzi interrupted with objections that seemed intended to steer the witnesses testimony. The federal rules of civil procedure require objections to be stated concisely in a nonargumentative and nonsuggestive manner and warn that an excessive number of unnecessary objections may itself constitute sanctionable conduct.
Two Abbott employees, a research scientist and a quality-assurance manager, were deposed in August of 2012 by Mr. Rathke. Ms. Ghezzi objected 115 times over the course of seven hours. Judge Bennett said in a court filing that Ms. Ghezzi interrupted hundreds of other times. He wrote that the volume was "astounding"
Abbott draws small samples from large batches of its baby formula to determine its safety. The witness was asked if there was a correlation between what was found in the samples and the finished product. Judge Bennett said it was a reasonable question.
The objection was vague and ambiguous.
The witness said that was speculation. Mr. Rathke said something different. The object was the form of the question. It doesn't have facts.
The witness said that the hypotheticals were true. Mr. Rathke asked the same question again.
Ms. Ghezzi said the same thing.
The witness said they wouldn't answer.
You are not going to answer. "Mr. Rathke, what do you think?"
It's speculation. It would be hard to tell.
She said that you don't have to guess.
The routine played out over and over. Mr. Rathke was taking a break during the deposition. The lawsuit was supposed to be the focus of the deposition. June should be allowed to do the deposition. The man remembered saying. You are getting steam rolled.
It was important that the depositions were done. Abbott wanted a summary judgement ruling based on them. A portion of the trial would be read to the jury. The witnesses had no idea what the witnesses would say if Ms. Ghezzi had not interrupted.
It was a common carrier of Cronobacter that Jeanine had eaten.
In product liability cases, Jones Day tries to raise doubts and blame others. An expert witness testified that Jeanine had already been exposed to the disease when she consumed the formula. The lawyers said that the formula the government tested didn't contain Cronobacter. Visitors might have brought thebacteria into the house. Maybe it was on the bottle that Megan had put the powder in. It could have come from any part of the world.
After seven hours of deliberations, the jury decided that Abbott was not responsible.
Mr. Rathke talked to Jeanine's family. He said that they lost.
Judge Bennett wasn't surprised by the verdict, but he told me it was the wrong one. He said that if it had been a bench trial he would have ruled in favor of the people. If the judge felt that way, he could have ordered a new trial or entered a verdict in favor of the person who sued.
Abbott has been sued at least 30 times since the recall of formula. The amount of evidence that has recently entered the public domain, including a lawsuit that the Justice Department filed against Abbott and a whistle-blower complaint submitted to the F.D.A., make them optimistic that they will fare better against Abbott.
Abbott, though, already appears to be laying the groundwork for a robust defense, repeatedly stating that there is no proven link between its formula and the deaths of infants. Jones Day isn't representing Abbott in any of the lawsuits.
For the Kunkel family, all of this has reminded them of their legal battle, and how Abbott avoided public attention to their child's near-death experience.
Mr. Kunkel said that they didn't want anyone to know about the risks. Since that time, how many families have been hurt?
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