A New Goliath: Keller Postman’s Infant Formula Victory Reaffirms a Revolutionary Plaintiffs’ Model

Ashley Keller, Ben Whiting and Amelia Frenkel

David versus Goliath: a prevalent courtroom fable. It is inspiring to watch a small and scrappy firm representing worthy, everyday people fight and win against the nation’s largest corporations.

That said – why is it too often the average Joe on the shoestring budget? Don't everyday people deserve a fair fight every time? What if they had a Goliath of their own?

These are the questions that struck Ashley Keller and his colleagues, founders of elite plaintiffs’ mass action firm Keller Postman. When they founded the firm in 2018, their goal was to create a plaintiffs’ firm with the financial heft and physical size of a Big Law defense firm, taking on cases with the same advantages as the firms they went up against. They wanted to turn David and Goliath cases into two Goliaths; to finally give everyday people the size of voice they deserve. 

In the last six years, they have proven that this model is successful time and again – most recently by achieving a landmark $60M jury verdict on behalf of a client, Jasmine Watson, whose infant son developed necrotizing enterocolitis (NEC) and died after being fed Enfamil formula. In cases spanning the country, the Keller Postman team is suing manufacturers Abbott Laboratories and Mead Johnson, alleging that their false advertising and lack of transparency around cases of NEC tied to their cow’s milk-based formulas have led to premature infants’ deaths. 

“Unfortunately, we have a lot of parents who have suffered very similar injuries at hospitals throughout the country, which have been feeding this product to infants because the companies have failed to warn about the product and have concealed the real dangers with this product,” says partner Amelia Frenkel.

It’s a case that epitomizes the reason for the firm’s creation, says founding partner Ashley Keller: “Plaintiffs can sometimes feel a little bit more hamstrung in their resources, and we started the firm to make sure that that playing field was not going to be so tilted in favor of the other side.”

Keller and his partners formed the firm from a different background than most; Keller, a former partner at trial firm Bartlit Beck, later co-founded prominent litigation finance firm Gerchen Keller Capital. With $1.3B in assets under management, the firm was acquired by Burford Capital in 2016.

A couple years later, Keller and partners wanted to get back in the courtroom. They saw that their financial literacy and heft combined with the social good of a plaintiffs’ mass action firm would make a revolutionary combination. Right out of the gate, the firm started taking on major issues; in 2018, they were the first to sue Elon Musk and Tesla for Musk’s statements about taking the company private. In just the first two years, they recovered more than $200M for 100,000+ clients.

Keller adds that the firm focuses its efforts on cases that provide the most societal benefit. The NEC cases are a textbook example. The cases involve vulnerable members of society – preterm infants – and a product in widespread use that the attorneys allege has caused widespread harm. It’s “an opportunity to deliver positive social change through legal action,” Keller explains. 

FINDING THE CASE

Frenkel has been part of the NEC cases from day one. After joining Keller Postman as an associate in 2021 following defense-side experience at several Big Law firms, Frenkel was promoted to the partnership in December of 2022. While she has been a key part of multiple major litigations at the firm – including a 75,000-strong mass action against Amazon – the Watson case was the first she tried with a standup role from origination to verdict.

Frenkel has “proven herself time and time again in this case,” says Keller, who has a big-picture managerial role in the NEC cases. “No one has lived and breathed the facts and the law more than she has. And when you know the facts and the law cold and you're the go-to person that is the connective tissue for all aspects of the case, you get opportunities.”

Frenkel was the driving force behind the firm’s decision to pursue the NEC claims, researching the underlying law and science and making early cases for the victims. Frenkel found that the companies marketed their infant formulas as “medically endorsed” and “nutritionally equivalent” to breast milk, despite Frenkel and team uncovering scientific evidence suggesting a link between cow’s milk-based formula and NEC in premature infants. The lawyers argue that the companies knew about the link without disclosing it to customers. Currently, the team is representing thousands of clients, with cases filed in Illinois, Missouri, Pennsylvania, Florida and California.

Once the firm decided to go ahead with the cases, partner Ben Whiting also jumped on board. Whiting joined the firm in 2020 following defense-side multibillion-dollar securities cases and mass torts at Bartlit Beck, like Keller. He was compelled by the ingenuity and risk-taking innate to Keller Postman’s outlook, as opposed to the conservative approaches of defense-side firms he’d seen. To that end, Whiting has been instrumental in helping kick off Keller Postman’s innovative mass arbitration practice and, with extensive experience in products liability cases, he was a natural fit for the NEC cases. 

Like Keller, Whiting and Frenkel, many of Keller Postman’s attorneys come from the defense side. It’s by design; the firm looks to take the top talent frequently on the defense side and bring them over to the plaintiffs’. “We have people who can go toe-to-toe from an intellectual heft and firepower perspective with all the white-shoe defense firms out there,” says Keller. He adds that the firm is also able to make huge investments in physical capital. The team takes on expensive cases, and the NEC cases are no exception, with significant costs in expert witnesses and preparations for trials of this magnitude.

JASMINE WATSON’S STORY

For this first trial, the team (which included attorneys from Holland Law Firm and Cates Mahoney in addition to the Keller Postman lawyers) represented client Jasmine Watson in a case filed in St. Clair County, Illinois.

Watson gave birth to twin sons, Chance and Chase, who were born premature at 31 weeks. There was a sense of relief – babies often survive when born at 31 weeks, and both Chance and Chase were otherwise completely healthy. 

When both babies were put on Mead Johnson’s Enfamil formula, that started to change. After a few days, Chance developed NEC – a life-threatening inflammation and infection of the intestine that almost exclusively affects premature babies. Doctors transferred Chance to the highest-level NICU available, where he was treated by first-rate specialists. Unfortunately, the disease progresses rapidly. Chance was taken into an invasive surgery, but ultimately passed away. 

Though Chase was also put on the formula, he evaded the infection. Frenkel explains that this is a difficult part of trying these cases: The negative impacts aren’t universal. “One of the reasons that these companies have gotten away with this for so long is, and this is true with almost anything, you don’t have a 100 percent injury rate,” she explains. “Once you’re feeding this formula to premature babies, you’re rolling the dice with the risks. Chance got unlucky; his brother got luckier, but he’ll grow up without his twin.”

FIGHTING LOVE AND FEAR

Mead Johnson had power going into the case: It is a multibillion-dollar entity pervasive in the infant formula market. Both Mead Johnson and Abbott Laboratories frequently give hospitals their formulas for free use, and doctors are their key opinion leaders. “When this litigation started, we were swimming uphill a little bit in terms of shining a light on the bad conduct from these companies,” says Frenkel. “There was a general sense in the industry of, ‘How could these companies do anything wrong when you have doctors saying nice things about them and the hospital is getting this amazing product for free?’”

Whiting says they began taking apart that argument in week one of the trial, in which they questioned Mead Johnson’s former chief medical officer and called on expert witnesses to discuss the devastating effects of NEC. Also on the stand: a marketing expert who highlighted the difference between Mead Johnson’s internal documents (which Whiting says included language about “vulnerable moms” being an inflection point” for sales) and its external marketing. There were tears shed, Whiting remembers – not typical for a marketing expert’s testimony.

The following week, it was time for Ms. Watson’s testimony. “I think that was really what cemented it for many of the people in the jury,” says Whiting. Both Ms. Watson and her mother took the stand. Discussing Chance’s death brought a wave of emotion through the entire courtroom, the attorneys remember. “You could see just how much it impacted her family,” Whiting says.

Frenkel explains that the final battle was against “scare tactics” employed by the defense. She remembers that the defense put a doctor on the stand who testified that if the jury were to compensate Ms. Watson, they would be endangering the lives of other premature infants by calling into question whether those babies would be able to get adequate nutrition going forward. Additionally, the defense argued that if this product were not given away for free, hospitals would be forced not to invest in other lifesaving treatments – suggesting that compensating Ms. Watson could be life-threatening for hospital patients at large, says Frenkel. The Keller Postman team then put on a rebuttal expert, the final witness, who testified that that was not the case. 

“For a product that is about babies, it is a product largely marketed on fear, and the defense to a great extent was premised on fear,” Frenkel says. “That’s a consistent theme in their marketing. That’s deeply irresponsible for a product that causes this much harm.”

In the end, the jury awarded Ms. Watson a total of $60M and found Mead Johnson guilty of negligence and failure to warn. “There were a lot of tears when the verdict was read,” says Frenkel. “I never cried when the verdict was read on the defense side, I will say that. It’s a very, very different experience.”

WHAT’S NEXT

To that end, the trial reflects the attorneys’ reasons for going into plaintiffs’ law. For Frenkel, it was about having a personal connection with the client. “We got the chance, as I think the jury ultimately did, to get to know Jasmine and her family. They are wonderful people who do not deserve this.” She says it was impactful to “be able to walk this path with her and bring her some measure of closure.”

For Whiting, it’s about the trust involved in the client relationship on the plaintiffs’ side. Unlike on the defense side, where clients often have law degrees and are in the upper echelons of major corporations, clients like Ms. Watson often have no experience with the law and therefore put all their trust in their attorneys. “There’s a certain responsibility that comes with that,” says Whiting.

For Keller, it all comes back to the reason he started the firm: protecting individuals while sending a clear message to large companies that they can’t get away with lack of oversight. “This is why we need to have the civil justice system that we have: You can’t trust corporations – or anybody, frankly – to decide for themselves when they did something wrong,” says Keller. “We need to force corporations to do the right thing. We’re going to keep fighting until that wrong is corrected, and we prevent future Jasmine Watsons from having the heartache that she experienced.”

Next up: tackling the many other NEC cases that have been filed across Illinois and nationwide. The team is now trying to ensure the other cases get to trial as quickly as possible. Several trials are set to go ahead this year, with some being handled by partner firms. Keller predicts that the verdict in the Watson case will have “significant ramifications” on the rest of the cases, hopefully providing much-needed coverage of what he describes as a “public health crisis,” and ultimately achieving compensation for those like Ms. Watson who have lost children to NEC.

With multiple other active litigations at the firm – including the 3M Combat Arms Earplugs litigation, the hair relaxer litigation and the Camp Lejeune litigation – the fight will continue beyond the NEC cases. “We are going to see this movie again,” says Keller. “Corporations are going to continue at times to misbehave and to hurt people; they’re not going to take responsibility until the tort system forces them to. That’s what we exist to achieve, and it’s nice to see it play out.”