CHICAGO (Legal Newsline) - The woman unhappy with what's in Gerber Good Start Grow formula might not get a chance to pursue a class action lawsuit because she isn't asking for enough money.
Chicago federal judge Lindsay Jenkins ruled on Sept. 20 that plaintiff Melissa Garza failed to show at least $5 million in damages were possible, a threshold for federal jurisdiction of class action cases. Jenkins dismissed the case, though she did so without prejudice, which allows Garza to file an amended complaint.
The suit blames Nestle for claiming the Gerber Good Start Grow milk-based formula is nutritionally appropriate. It was filed by noted consumer deception lawyer Spencer Sheehan, who hoped to create a class of Illinois consumers who would not have paid as much for the formula had they not been tricked.
The case says the formula, which is fortified with vitamins D and E to help fill gaps in nutrition for toddlers, isn't as effective as cow's milk. The complaint noted the formula costs four times more than milk.
"As a result, the Illinois Class' claims cannot aggregate to over $5 million," Jenkins wrote. "If Good Start Grow is only worth 25% of the price Gerber sells it for... the class could recover at most $3.825 million in damages, more than $1 million below the jurisdictional requirement.
"That figure might not be exactly correct, but it is so far below the requisite $5 million, the Court is satisfied that no legally permissible measure of damages could result in an aggregate amount in controversy of over $5 million for the Illinois Class alone."
Garza's complaint says groups like the American Academy of Pediatrics Committee and a subcommittee of the World Health Organization advise children older than one year should have their nutritional needs met with whole milk, water and healthy foods, rather than transition formula.
Such transition formulas were introduced to deal with declining sales since mothers have increasingly chosen breastfeeding, the suit says.
“Companies like Defendant capitalize on consumers’ familiarity and acceptance of federally approved infant formula and continue selling it to them when their children are no longer infants, defined as zero to twelve months old,” the suit says.