Supreme Court could yank Whole Foods back into baby food brawl  

WASHINGTON (CN) — Two Texas parents who claim a baby food brand sickened their child made headway convincing the Supreme Court on Tuesday that their suit wasn’t given a fair shake.

“There is a sense of unfairness, I think, to the plaintiffs because they just never get the opportunity to try to remedy this wrong,” Justice Amy Coney Barrett, a Donald Trump appointee, said.

A federal judge found Sarah and Grant Palmquist’s theory that their son’s severe autism spectrum disorder was caused by ingesting heavy metals in Earth’s Best Organic baby food wasn’t supported by science. However, the Palmquists want the Supreme Court to give them another shot at proving their case in a Texas state court.

“[The Palmquists’] case was tried solely based on the quality of the product, but that was an artifact of the erroneous ruling made by the district court about the content of state law that should have been a determination made by the state courts,” Russell Post, an attorney with Beck Redden representing the Palmquists, said.

After a 2021 congressional staff report found the presence of metals in baby foods, the Palmquists sued Earth’s Best maker Hain Celestial Group for negligence. The Food and Drug Administration rebutted the report, stating that it is impossible to prevent all naturally occurring elements from entering the food supply through soil, water or air. The agency confirmed that it regularly tests baby food products to mitigate exposure to harmful elements.

Hain, then a citizen of Delaware and New York, said the case should be moved to federal court based on diversity jurisdiction, the authority of federal courts to hear lawsuits between citizens of different states.

However, the Palmquists also sued Whole Foods, where they claimed to have bought baby food. Whole Foods is a citizen of Texas. Hain argues the Palmquists fraudulently joined Whole Foods to the suit to keep the case in state court.

The federal judge sided with Hain, dismissing the claims against Whole Foods. After over a year of discovery and a trial that included seven days of testimony from the Palmquists’ witnesses, the court concluded none of the experts could connect the ingestion of heavy metals to their son’s symptoms. The court held that the Palmquists didn’t present sufficient evidence to prove causation.

Without reviewing the merits, the Fifth Circuit determined the lower court erred in dismissing Whole Foods and sent the case back to Texas state court. The appeals court also vacated the ruling against Hain, finding the initial error tainted the final judgment.

Before the Supreme Court, Hain argued that the Fifth Circuit shouldn’t have vacated and it shouldn’t have to relitigate its case in state court.

“The Fifth Circuit’s decision, with all due respect to them, they don’t have a time machine,” Sarah Harrington, an attorney with Covington & Burling representing Hain, said. “They can’t go back and change what actually happened.”

The high court appeared skeptical, probing whether dismissing Whole Foods put the Palmquists at a disadvantage.

“Whole Foods was dismissed erroneously,” Justice Sonia Sotomayor, a Barack Obama appointee, said. “[The Palmquists were] deprived permanently of a tactical opportunity to try this in state court. Isn’t that inherent prejudice?”

Justice Neil Gorsuch, a Donald Trump appointee, noted the problem was sparked by Hain’s request to move the case to federal court.

“I mean, in terms of fairness, your hands aren’t exactly clean here,” Gorsuch told Hain’s lawyer.

Last term, the Supreme Court confronted a similar dilemma involving a pet owner’s suit against a dog food company. In Royal Canin v. Wullschleger , the court held that a federal court still had jurisdiction over a suit after the federal claims were dropped and only state claims remained.

Justice Elena Kagan, who wrote the majority opinion in Royal Canin , told Hain that the same principle applied here because federal claims can reemerge on appeal.

“It seems to me there should be no different rule with respect to diversity [jurisdiction],” Kagan, an Obama appointee, said. “Even once one of the parties was dismissed that party still had the potential to get back into the suit.”

Justice Ketanji Brown Jackson said that there was a risk that Whole Foods could have jumped back into the case if the lower court ruled in an unfavorable way. The Joe Biden appointee said Hain had to face the risks of its litigation choices.

“Everybody’s strategic here and making determinations about what is worth pursuing,” Jackson said. “You can have an interlocutory appeal; you cannot. You can wait; you cannot. But you’re taking a risk that when you get to the end of the case, this jurisdictional defect will be realized and not cured and you might suffer.”

Justice Clarence Thomas, a George H.W. Bush appointee, said the case before the Supreme Court would have been a lot easier if the Palmquists had appealed the dismissal of Whole Foods right away.

Based on the high court’s precedent, the Palmquists said they knew there was no obligation to immediately appeal the dismissal.

“That makes it seem like your choice was to take a wait and see approach and then decide whether you liked the result or not before you chose to fight,” Barrett said.

Several justices questioned whether including Whole Foods would have changed the outcome of the case.

“How did it hurt your client that Whole Foods wasn’t in the case when your friend on the other side is pointing out that nothing in the case turned on Whole Foods or its evidence,” Barrett asked.

The Palmquists said they didn’t have the opportunity to develop evidence about Whole Foods making misrepresentations about the quality of the baby food it sold.

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