Kirkland Lawyer Barred From Abbott Formula Argument Over Conduct

A Missouri judge barred Kirkland & Ellis partner James Hurst from making arguments for Abbott Laboratories in a major trial over the safety of formula for premature babies.

Judge Michael Noble of St. Louis City Circuit Court sanctioned Hurst, a star litigator who has long represented Abbott, for “bad faith” after he “repeatedly toed the line of appropriate conduct” throughout the trial.

The Oct. 24 sanctions order comes in a case where Abbott and Mead Johnson are defending claims that the formula they manufacture caused a bowel inflammation called necrotizing enterocolitis, or NEC. St. Louis Children’s Hospital is also a defendant. The plaintiff in the case is the family of a child born premature in 2017 who developed NEC shortly after birth.

Abbott faces hundreds of claims in other cases that allege the risks of its formula were hidden. The company in July lost a jury trial in St. Louis that awarded nearly $500 million to the family of a child who developed NEC and allegedly suffered brain damage after being fed Abbott’s Similac Special Care 24. That case is being appealed.

Judge Noble’s ruling said that Hurst, while cross examining a doctor, “admitted on the record to eliciting testimony and introducing evidence to intentionally inflame and prejudice the jury” in ways earlier precluded by the court.

Noble also said Hurst “repeatedly either attempted to violate or overtly crossed the lines” of the court’s orders related to evidence and arguments before the jury. The judge concluded the behavior was an attempt to elicit a mistrial.

Hurst, who delivered opening arguments in the case earlier this month, did not immediately respond to a request for comment. Kirkland spokeswoman Kate Slaasted said in a statement that Hurst’s “impeccable trial record speaks for itself.”

“As a world class trial lawyer, Jim has successfully led cases for 30 years in jurisdictions around the country with supreme professionalism,” Slaasted said. Scott Stoffel, an Abbott spokesman, said, “Mr. Hurst is a terrific trial lawyer and has acted professionally, ethically and in good faith throughout the case.”

In an effort to overturn the sanctions, the defense contended that Hurst should be able to make closing arguments and that his behavior was “zealous advocacy,” not bad faith, according to Noble. The defense also argued that the sanction was severe, and that the punishment had served its purpose, the judge wrote.

But Noble on Monday declined to overturn his ruling, writing that the sanction was “measured and appropriate for the circumstances.” The judge noted Hurst is allowed to remain in the courtroom throughout the trial and his admission to the court wasn’t revoked. The judge declined to strike the defendant’s pleadings, which the plaintiff’s lawyers had requested.

Brief Retirement

Hurst briefly retired from Kirkland last year before returning just a few months later, saying at the time he looked forward to trying cases “for the next decade, if not longer.”

He is one of the best-known trial lawyers in the country, practicing at the country’s top law firm by revenue. He is a fellow of the American College of Trial Lawyers—elite litigators that the group says are renowned for “exemplary” ethics, moral standards and collegiality.

Prior to Hurst’s sanction, Abbott and Mead had been attempting to enter into evidence portions of a nearly 100-page report prepared at the request of the Department of Health and Human Services that concluded preterm infants must be fed as soon as medically feasible “by whatever means are available.”

Following that report, the US Food and Drug Administration, the Centers for Disease Control and Prevention, and the National Institutes of Health this month issued a statement saying “there is no conclusive evidence that preterm infant formula causes NEC.”

The judge had previously denied entering those items into the trial, viewing them as “an unfair and prejudicial surprise” of new evidence created after discovery closed. He reiterated that view in an order last week.

Abbott moved for a mistrial last week, alleging plaintiff’s lawyers had insinuated a witness convened with defense lawyers while still on the stand. Abbott’s lawyers called the line of questioning “highly prejudicial.”

An email sent to Timothy Cronin, a lead plaintiff’s lawyer in the case at The Simon Law Firm, was not immediately returned.

The case is Whitfield v. St. Louis Children’s Hospital, Mo. Cir. Ct., No. 2222-CC06214, 10/24/24.