Contaminated Baby Formula From China

Dangerous, Defective and Deadly Baby Food from China Contaminated with Melamine: Law Firm Investigating Potential Lawsuit Claims

The trial lawyers at Keefe Law Firm are investigating recent news of the serious and life-threatening risks posed by contaminated baby formula from China which may have made its way into the United States. There is an immediate concern that the baby food could be contaminated with the toxic chemical substance known as melamine.

Melamine is a chemical substance used to produce such items as plastic, cleaning products, glues, flame retardants, and fertilizer. The ingestion of this dangerous chemical can lead to risks of reproductive damage, bladder or kidney stones, and bladder cancer. The toxic substance melamine was previously found in the pet food recall last year in March 2007, when the United States Food and Drug Administration (“FDA”) discovered melamine in pet foods imported from China. Now melamine has contaminated baby formula and milk powder from China threatening very serious harm to infants.

Reports from Beijing, China indicate that there is an unusual spike with dozens of infants diagnosed with kidney stone throughout the country sparking concern regarding the safety of baby formula and infant milk powder. The Wall Street Journal reports the China’s Ministry of Health issued a statement that it had a “high degree of suspicion” that some of the kidney stone cases were caused by babies ingesting infant milk powder contaminated with melamine. Article titled “Tainted Baby Formula Blamed in Chinese Kidney Cases”by Loretta A. Chao, Wall Street Journal ( September 12, 2008)

The contaminated baby formula may have been exported into the United States. On September 12, 2008 the U.S. Food and Drug Administration immediately released a Health Information Advisory on the official web site. The alert states the following:

In response to reports of contaminated milk-based infant formula manufactured in China, the U.S. Food and Drug Administration (FDA) today is issuing a Health Information Advisory. This is to assure the American public that there is no known threat of contamination in infant formula manufactured by companies that have met the requirements to sell infant formula in the United States. Although no Chinese manufacturers of infant formula have fulfilled the requirements to sell infant formula in the United States, FDA officials are investigating whether or not infant formula manufactured in China is being sold in specialty markets which serve the Asian community.

The FDA is advising caregivers not to feed infant formula manufactured in China to infants. This should be replaced with an appropriate infant formula manufactured in the United States as mentioned below. Individuals should contact their health care professional if they have questions regarding their infant’s health or if they note changes in their infant’s health status.

The FDA began investigating the reports of contamination immediately and received information from the companies who manufacture infant formula for the American market that they are not importing infant formula or source materials from China. The following manufacturers have met the necessary FDA requirements for marketing milk-based infant formulas in the United States: Abbott Nutritionals, Mead Johnson Nutritionals, Nestle USA, PBM Nutritionals, and Solus Products LLC. Also, one manufacturer, SHS/Nutricia, Liverpool, England, markets an amino acid based exempt infant formula that does not contain any milk-derived ingredients.

We are asking state officials to work with the Agency to assist with the removal of any Chinese infant formula found on store shelves, and to warn members of the Asian community to avoid using Chinese manufactured infant formula.

It has been reported that a number of infants in China who have consumed Chinese manufactured infant formula are suffering from kidney stones, a condition which is rare in infants. The Chinese manufactured infant formula may be contaminated with melamine. Melamine artificially increases the protein profile of milk and can causes kidney diseases such as those seen in these Chinese infants.

FDA requires that all infant formula manufacturers register with the Agency and adhere to specific labeling and nutritional requirements. All properly registered infant formula manufacturers marketing infant formula in the United States undergo an annual inspection of their production facilities.

If you think you or a loved one may have been injured by eating the dangerous infant baby formula from China tainted with the chemical melamine, contact the dangerous products trial lawyers at our law firm. Our accident attorneys are experienced in products liability injury cases and aggressively represent our clients.

Products liability law protects all consumers from the known, and oftentimes undisclosed, dangerous risks of harm and injury posed by defective products. If the continuing investigation confirms that the baby formulas and infant milk powder were contaminated with melamine, then the manufacturers of these products may be legally responsible for the injuries and harms caused by their toxic and poisonous products.

The trial attorneys at Keefe Law Firm are experienced in products liability law and the prosecution of such cases. The toxic contamination of a product, in this case baby formula, could be attributable to a manufacturing defect caused by a defect or flaw in the production process. Such a manufacturing defect may be proven by direct evidence, inference based on the circumstances of the contamination or concluded by a finding that the evidence shows that there could be no other cause for the contamination. In a potential suit concerning the melamine contaminated infant formula from China, the manufacturing defect is established by proof that the made in China baby formula was contaminated with the toxic substance melamine at the time it left the control of the manufacturer(s) in China and the formula was not misused or altered by the end user in the United States. Such a product liability case, if effective, can serve a public interest justice to bring compensation to the victims of this dangerous baby food made in China and imported to the United States and sold in ethnic specialty stores. The end users and ultimate victims here are babies and the families who suffer as a result.

The defendant in a dangerous baby food from China lawsuit case as the manufacturer/seller of a product has the duty to make/sell a product that is reasonably safe. This means a product that is reasonably fit, suitable and safe for its intended or reasonably foreseeable uses. Chinese manufacturers and sellers of baby food owe that duty to direct users of the product, to reasonably foreseeable users of the product, and to those who may reasonably be expected to come into contact with it.

The Chinese manufacturers and sellers could only be liable if the lawyers for the family of the injured baby proves that the product causing the harm was not reasonably safe for its intended purpose. Such proof would come by way of showing the baby food was not reasonably safe for its intended purpose because of:

a. a manufacturing defect; or

b. a failure to adequately warn or instruct; or

c. a design defect.

A manufacturing defect may be established by proof that, as a result of a defect or flaw which happened during production or while in defendant’s control, the product was unsafe and that unsafe aspect of the product was a substantial factor in causing plaintiff’s accident and/or injury. To establish his/her claim for a manufacturing defect, the plaintiff must prove all of the following elements by a preponderance (greater weight) of the credible evidence.

One thing plaintiff may want to prove to obtain compensation in a case like this is that the poisonous baby food from China contained a manufacturing defect which made the product not reasonably safe. To determine if the baby food had a manufacturing defect, the jury (or judge in a bench trial) must decide what the condition of the baby formula as planned should have been according to defendant’s design specifications or performance standards and what its condition was as it was made. If it were to be found there is no difference between the two conditions, then there was no manufacturing defect. If there was a difference, the jury must decide if that difference made the Chinese baby food not reasonably safe for its intended or reasonably foreseeable uses. If the answer is “yes,” then the jury will have found the baby food to be defective. Plaintiff need not prove that defendant knew of the defect nor that defendant caused the defect to occur.

Whether there was a manufacturing defect in the baby formula may be shown to the jury the plaintiff in one of three ways. First of all, it may be demonstrated by direct evidence, such as a defective part. Second, it may be inferred that there was a defect by reasoning from the circumstances and facts shown. Third, if the jury finds from the evidence that there is no other cause for the accident other than a manufacturing defect, the jury may find a defect existed.

Plaintiff, through his or her trial lawyer, must prove that at the time of the accident the baby food was being used properly for its intended purposes and for an intended or reasonably foreseeable purpose. To prove this, plaintiff must show that the product was not being misused in a way that was neither intended nor was reasonably foreseeable. In this case the Chinese seller may contend that at the time of the accident the baby food may have been misused, or that it was not unsafe.

Plaintiff must also show that when he/she used the product, it had not been substantially altered since it left defendant’s control. A substantial alteration is a change or modification made to the product after it was manufactured or sold which both alters the design or function of the product and has a significant or meaningful effect on the product’s safety when used. In these cases the defendant may say that the baby food was substantially altered and did not contain melamine when they sold it.

The injured plaintiff would also have to prove proximate cause which means that the manufacturing defect was a substantial factor which singly, or in combination with another cause or causes brought about the accident or injury. Plaintiff need not prove that this same accident could have been anticipated so long as it was foreseeable that some significant harm could result from the manufacturing defect in the product. If the manufacturing defect does not add to the risk of the occurrence of this accident and therefore is not a contributing factor to the happening of the accident, then plaintiff would fail to establish that the manufacturing defect was a proximate cause of the accident.

A design defect may be established by different methods. One method is the Consumer Expectations Test. Another method is applying the Reasonable Safer Design standard or the Risk-Utility Analysis. The Consumer Expectations Test typically applies where the product “like a bicycle whose brakes do not hold because of an improper design” is “self-evident(ly)…not reasonably suitable and safe and fails to perform, contrary to the user’s reasonable expectation that it would ‘safely do the jobs for which it was built'”. The design of a product is obviously defective when there are no relevant considerations which make the danger inherent in the product, or reasonably necessary to its functioning. In this respect, such defects are akin to manufacturing defect cases in which the defect is proven by circumstantial evidence. For such a product the usual Risk-Utility Analysis is unnecessary. The only material question is whether the product has been so designed that it poses a danger that is contrary to the user’s reasonable expectations.

A product falling within the Consumer Expectations Test category was a food slicing machine which was not equipped with an interlocked safety device to stop the blade from running after the guard was removed to wipe clean the blade. Mettinger, supra, note 1. The existence of a defect can be proven by circumstantial evidence. Myrlak v. Port Authority of New York and New Jersey et al., 157 N.J. 84 (1999) [adopting “Indeterminate Product Test” of section 3 of the Restatement (Third) of Torts: Products Liability].

Another method of proving the existence of a design defect is the Risk- Utility Analysis. There the defect is established by proof that the product’s risks or dangers outweigh its usefulness and therefore, a reasonably careful manufacturer or seller would not have sold the product at all in the form in which it was sold. This involves a balancing or weighing of a number of factors known as risk/utility factors.

In many or perhaps most cases the core issue is whether or not a Reasonable Safer Design would have reduced the risk or dangers of the product to the greatest extent possible consistent with the product’s continued utility, i.e., without impairing its usefulness and without making it too expensive for it to be reasonably marketable. In such cases, only the charge on reasonable safer design need be given. There, the plaintiff has only to show the existence of a safe and reasonably feasible alternative to the defendant’s product and that, in light of the omitted safer alternative, the product was not reasonably safe as manufactured or sold. The Restatement (Third) of Torts: Products Liability is fundamentally consistent with New Jersey’s products liability case law and statute regarding product defect.

There are three affirmative statutory defenses to certain design defect claims. They are: 1) there was not a practical and technically feasible alternative design, 2) the harm was caused by an unsafe aspect of the product that is an inherent characteristic of the product, and 3) the harm was caused by an unavoidably unsafe aspect of the product and the product was accompanied by an adequate warning or instruction. Our attorneys are prepared to counter these defenses in a dangerous baby food from China cases.

In summary, to prevail on case involving personal injuries from dangerous baby food from China sold in the United States, including at ethnic grocery stores, the plaintiff in most states generally will have to show by the preponderance (greater weight) of the credible evidence that (1) the product as designed, manufactured or sold was defective, in that it was not reasonably safe for its intended or reasonably foreseeable uses, (2) the defect existed when the product left the hands and control of the defendant, (3) that at the time of the accident the product was being used for an intended or reasonably foreseeable purpose, that is, that it was not being misused or had not been substantially altered in a way that was not reasonably foreseeable, (4) that the defect caused injury to a direct or reasonably foreseeable user, or to a person who might reasonably be expected to come into contact with the product and (5) that the defect in the product was a proximate cause of the accident. If plaintiff fails to establish any one of the just mentioned elements, then the defendant would probably win the case.

The product liability attorneys at Keefe Law Firm are hard at work doing their part to protect the public from potentially dangerous infant products as this melamine contaminated baby formula from China. If you or a loved one has used or is using one of these potentially toxic baby products and have experienced any serious side effects, you may have a legal claim or lawsuit related to this defective products. Contact the trial attorneys at Keefe Law Firm to see if they can help you in cases involving dangerous baby food from China.

Print Friendly, PDF & Email

Leave a Reply

Your email address will not be published. Required fields are marked *