Herman Quoted by Bloomberg Law on Supreme Court Case that Industry Groups Believe May Prompt Consumer ‘Vertical Forum Shopping’

Steve Herman, special counsel in Fishman Haygood’s Litigation Section, was recently interviewed by Bloomberg Law for the article “Supreme Court Case May Spark Consumer ‘Vertical Forum Shopping.’” As reported, on April 28, 2025, the U.S. Supreme Court agreed to hear Palmquist v. Hain Celestial Group, one of many cases nationwide seeking damages related to toxic heavy metal contamination in various brands of commercial baby food. If the Supreme Court grants the plaintiffs another shot at a state court trial, industry groups fear that the decision might fuel consumer “vertical forum shopping,” wherein a party chooses to file suit in either a federal or state court based on which seems more favorable to their desired outcome. Click here to read more on BloombergLaw.com.

In 2021, Sarah and Grant Palmquist brought a lawsuit in Texas state court against Hain, a commercial baby food manufacturer, claiming that heavy metals in the company’s products caused their child to develop autism. The Palmquists also listed Whole Foods Market, Inc., as a defendant in the matter, but the federal district court dismissed the grocery retailer, denying plaintiff’s motion to remand. After a jury verdict in favor of the manufacturer on the merits, that decision on “fraudulent joinder” was reversed by the Fifth Circuit Court of Appeals, and the case was sent back to state court for further proceedings.

Hain petitioned the Supreme Court to review the Fifth Circuit’s decision, arguing that it would be inefficient to allow a re-trial of the case in State Court. While, as a practical matter, very few cases actually go to verdict, Herman noted, if the Supreme Court were to accept the suggestion of some amici that “the parties’ position on jurisdiction can be controlling,” that would result in a “sea change” of U.S. Supreme Court precedent. Read the full interview here.

Steve, who teaches complex litigation and actively litigates commercial, class action, defective product, and professional liability cases, wrote about the Fifth Circuit’s decision in June of 2024. Read more on JD Supra.