Defense attorney Jim Hurst was in the middle of questioning an expert witness when plaintiffs’ lawyer Timothy Cronin called for a sidebar—one of many during a high-profile trial in St. Louis over infant formula.

This time, however, he asked the judge to impose sanctions against Hurst, a Kirkland & Ellis partner in the Am Law 1 firm's Chicago office, who represented defendant Abbott Laboratories Inc.

“Mr. Hurst needs to be done with this examination,” he told 22nd Judicial Circuit Judge Michael Noble, according to a transcript of the Oct. 24 proceedings. “He needs to have his pro hac revoked. He needs to go back to Chicago.”

Hurst, acknowledging he was in an “uncomfortable position,” was adamant he had done nothing wrong.

“I was acting in absolute good faith,” he told the judge. “I was nowhere near intentionally violating your orders.”

Outside the presence of the jury, Noble called the issue a “grave matter of serious consequence,” according to the transcript. Later that day, Noble issued a sanctions order against Hurst.

Noble's order has few details but references the expert witness, Dr. David Stevenson, a professor of pediatrics at Stanford University’s School of Medicine who specializes in genetic disorders, who took the stand to testify about whether Kaine Whitfield, the son of plaintiff Elizabeth Whitfield, may have had a genetic condition that caused him to develop a gastrointestinal illness called necrotizing enterocolitis, or NEC.

Whitfield’s attorney, Cronin, of the Simon Law Firm, in St. Louis, had alleged that Abbott’s cow’s milk-based infant formula had caused the illness, which her son got while in the hospital after being born premature in 2017.

According to the transcript, Hurst asked Stevenson about the date the lawsuit was filed—a move that Cronin accused him of doing to suggest that his client deliberately avoided having genetic testing done in order to pursue damages in the lawsuit for her son, now 7, who continued to need medical care.

“Yeah, my inference is that testing was not done because the lawsuit was pending,” Hurst told the judge, according to the transcript. “That is my inference. And that’s contrary to the argument that plaintiff made in the opening statement, which was that she forgot. I do not think she forgot. The jury is entitled to know the timing to ensure that they understand that is not a credible argument that she forgot.”

Cronin disagreed, calling it an attack against his client and her lawsuit.

“Now, I personally, and my colleagues, along with Kaine’s mom, have been accused of intentionally harming this child by not getting genetic testing to gain a benefit in litigation,” Cronin said. “This entire thing is planned out to do exactly what Your Honor made clear they couldn’t do. Your Honor said you could entertain serious sanctions. I’m asking for them now.”

Cronin then launched into a list of other occasions when Hurst allegedly had violated the court’s orders, starting with opening statements, when he attacked plaintiffs counsel. He referenced other pretrial motions dealing with the American tort system and misrepresenting that the lawsuit was asking to remove the formula entirely from the neonatal intensive care unit of all hospitals.
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'Mr. Hurst Is a Terrific Trial Lawyer'

The sanctions ordered followed weeks of an unusually cantankerous trial, the third involving NEC and cow’s milk-based infant formula. There were numerous sidebars and objections and, Abbott had moved for a mistrial at least four times.

In the end, Noble stopped short of revoking Hurst's pro hac vice admission but, referencing “bad faith on several occasions,” barred him from participating in closing arguments or questioning witnesses for the remainder of the trial.

“Throughout the course of this trial, Mr. Hurst has repeatedly toed the line of appropriate conduct both before the jury and outside the presence of the jury,” he wrote in his Oct. 24 order. “Mr. Hurst’s professional conduct has been reasonably called into question. Mr. Hurst has repeatedly either attempted to violate or overtly crossed the lines of the court’s orders related to evidence and arguments before the jury.”

He added, “It appears this conduct and these tactics are an intentional attempt to elicit a mistrial.”

Kirkland & Ellis, in a statement, defended Hurst.

“As a world-class trial lawyer, Jim has successfully led cases for 30 years in jurisdictions around the country with supreme professionalism,” Kirkland & Ellis said in a statement. “His impeccable trial record speaks for itself.”

Abbott, in a separate statement, said, "As we said previously, Mr. Hurst is a terrific trial lawyer and acted professionally, ethically and in good faith throughout the trial. We respectfully disagree with the court's sanctions order and are considering our options."

On Oct. 31, after three hours of deliberations, the jury returned a defense verdict for Abbott and another infant formula manufacturer, Mead Johnson, owned by Reckitt Benckiser Group, as well as St. Louis Children’s Hospital.