EAST ST. LOUIS – David Cates of Swansea, counsel for a Florida client in U.S. district court on a claim that milk product Enfamil caused a baby to die, wants to take the case back to Madison County circuit court where it started.
He moved to remand it on Dec. 17, stating that all claims of Abigail Grosshuesch against Enfamil maker Mead Johnson arose from state law.
Mead Johnson opposes remand and proposes to litigate at district court in Chicago.
Decision rests with District Judge Stephen McGlynn.
Elizabeth Kaveny of Chicago sued Mead Johnson and its nutrition company in Madison County in October, for Grosshuesch as mother of Isabella Zormelo.
The complaint carried names of two other Chicago lawyers and four in Connecticut.
Kaveny wrote that Enfamil caused Isabella to develop necrotizing enterocolitis, a lethal disease that largely affects preterm babies.
Isabella was born on Oct. 13, 2013, at 30 weeks and two days, weighing just over three pounds.
According to the lawsuit, Isabella did well on her mother’s milk until Oct. 23. Starting that afternoon, she wrote, Isabella was fed Enfamil.
Isabella was diagnosed with necrotizing enterocolitis on Oct. 30. She underwent emergency exploratory surgery on Oct. 31. And after hours of aggressive intervention, Isabella’s parents withdrew life saving measures.
On Nov. 1, Isabella died in her mother’s arms, the complaint says
“A diet based exclusively on human milk and human milk based products provides all the nutrition necessary to support preterm and low birth weight infants without the elevated risk of necrotizing enterocolitis associated with cow’s milk based products,” it states.
It alleges that Mead Johnson uses relations with hospitals to encourage substitution of formulas for breast milk, offering free formula, coupons and gift baskets in hospitals.
It further alleges that Mead Johnson pays for advertising on Google and other search engines targeted to searches involving preterm infants.
“No prescription is necessary,” it says.
Mead Johnson removed the complaint to district court in November, asserting diversity jurisdiction as a business in Evansville, Indiana.
It moved to transfer it to district court in Chicago on Dec. 6, claiming no facts or events in it occurred in the Southern District.
Cates, whose name didn’t appear on the complaint, entered an appearance and moved for remand to Madison County.
He wrote that Mead Johnson provided no support for claiming Indiana citizenship.
He wrote that it repeatedly held itself out as an Illinois company with its principal place of business in Chicago.
Anscombe opposed remand on Jan. 7, writing that management functions in Illinois ceased in 2018.
He wrote that Evansville is Mead Johnson’s historic home where it manufactures liquid products and controls operations.