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.”