Marler Clark asks Federal Panel to consolidate ByHeart Botulism Litigation

BEFORE THE UNITED STATES 

JUDICIAL PANEL ON MULTIDISTRICT LITIGATION 

IN RE BYHEART INFANT BOTULISM LITIGATION

MDL DOCKET NO.

PLAINTIFFS’ MOTION TO TRANSFER AND CENTRALIZE RELATED ACTIONS TO THE SOUTHERN DISTRICT OF NEW YORK PURSUANT TO 28 U.S.C. § 1407

Pursuant to 28 U.S.C. § 1407 and Rule 6.2 of the Rules of Procedure of the United States Judicial Panel on Multidistrict Litigation, Plaintiffs in the Related Actions^[1] respectfully move the Judicial Panel on Multidistrict Litigation (“the Panel”) for an Order transferring and centralizing the Related Actions in the United States District Court for the Southern District of New York before the Honorable Denise L. Cote. Plaintiffs submit herewith a Schedule of Related Actions and a contemporaneously filed Memorandum of Points and Authorities in support of this Motion.

In summary, centralization is appropriate because all related actions arise from the same nationwide outbreak of infant botulism caused by contaminated infant formula manufactured and distributed by Defendant ByHeart, Inc. (“ByHeart”)^[2]. The outbreak sickened and hospitalized at least 51 infants across 19 states, giving rise to multiple civil actions asserting overlapping factual allegations, common questions of law, and substantially identical claims for relief. In addition to the personal injury actions, several Economic Loss Class Actions have also been filed. 

Absent centralization, the parties and courts will be forced to litigate the same issues repeatedly in courts across the country—conducting duplicative discovery, presenting repetitive expert testimony, and risking inconsistent pretrial rulings on core issues such as causation, liability, and damages. Centralization will eliminate these inefficiencies and promote the just and efficient conduct of this litigation. 

Centralization is particularly critical given the limited insurance coverage available to satisfy claims. ByHeart reportedly maintains only $10 million in liability insurance, subject to “burning limits”^[3] that are being rapidly depleted by defense costs. This is especially true in multi-State and District cases where defense counsel need to retain local counsel, only adding to additional attorney’s fees and costs. Allowing parallel litigation to proceed independently across numerous jurisdictions threatens to exhaust all available coverage, to the detriment of injured infants and their families. 

The Southern District of New York is the most logical and convenient transferee forum for this litigation. ByHeart’s principal place of business is located at 131 Varick Street, 11th Floor, New York, NY 10013, within the Southern District of New York. As a result, key witnesses and relevant documents and electronically stored information are expected to be located in or near this District. Moreover, eight of the eighteen currently pending actions have already been filed in the Southern District of New York,^[4] making it the district with the greatest concentration of cases. Centralizing the litigation where the defendant-manufacturer is headquartered and where the largest number of cases are already pending will minimize disruption, maximize efficiency, and serve the convenience of the parties and witnesses. In addition, the Southern District of New York has a distinguished record of managing complex multidistrict litigation, and its judges—particularly the Honorable Denise L. Cote—are exceptionally well qualified to oversee coordinated pretrial proceedings in this matter.

For all of these reasons, transfer and centralization under 28 U.S.C. § 1407 will promote judicial economy, prevent inconsistent rulings, reduce unnecessary costs, preserve limited insurance proceeds, and protect the interests of injured infants and their families.

WHEREFORE, Plaintiffs respectfully request that the Panel enter an Order transferring and centralizing the Related Actions set forth in the Schedule of Related Actions, together with any tag-along or subsequently filed actions asserting related or similar claims, in the United States District Court for the Southern District of New York before the Honorable Denise L. Cote.

DATED:          January 15, 2026                                                         

Respectfully submitted,

MARLER CLARK, INC., P.S.

William D. Marler

Ilana P. Korchia

Adriana Zimova

180 Olympic Drive S.E.

Bainbridge Island, Washington 98110

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^[1] Plaintiffs’ counsel, William D. Marler, has filed five related actions to date and is currently investigating 30 additional claims arising from the outbreak (of at least 51 total known cases). The filed actions are: Wescott et al v. ByHeart, Inc. et al, No. 3:2025-cv-06039 (W.D. Wash.); Dexter et al v. ByHeart, Inc. et al, No. 3:2025-cv-08241 (D. Ariz.); Mazziotti et al v. ByHeart, Inc. et al, No. 2:2025-cv-12116 (C.D. Cal.); Barbera et al v. ByHeart, Inc. et al, No. 2:2025-cv-03339 (E.D. Cal.); Joseph et al v. ByHeart, Inc. et al, No. 3:2025-cv-00391 (S.D. Tex.). Plaintiffs’ counsel has intentionally refrained from filing additional actions at this time to avoid unnecessarily depleting limited insurance proceeds.

^[2] See CDC report – https://www.cdc.gov/botulism/outbreaks-investigations/infant-formula-nov-2025/investigation.html and FDA report – https://www.fda.gov/food/outbreaks-foodborne-illness/outbreak-investigation-infant-botulism-infant-formula-november-2025

^[3]  “Burning limits” refers to a type of liability insurance policy under which the costs of legal defense (e.g., attorney fees, court costs, and expert witness expenses) are deducted from the total policy limits. Such policies are also commonly referred to as eroding limits, wasting policies, or defense-within-limits (“DWL”) coverage. Given the scope of this litigation and ByHeart’s retention of multiple national law firms (including Munger, Tolles & Olson and DLA Piper), the available insurance coverage is expected to be rapidly depleted in the coming months.

^[4] See Schedule of Related Actions filed contemporaneously herewith.

Republished with permission from Bill Marler and Marler Clark. Copyright (c) Marler Clark LLP, PS. All rights reserved.

Source: https://www.marlerblog.com/case-news/marler-clark-asks-federal-panel-to-consolidate-byheart-botulism-litigation/