NEC Baby Formula Lawsuit

Our lawyers are handling Similac and Enfamil infant formula lawsuits for families whose premature babies suffered or died from necrotizing enterocolitis (NEC) after taking one of these formulas.  Our law firm is reviewing NEC lawsuits in all 50 states.

Medical research links cow milk-based infant formulas such as Similac and Enfamil to a dangerous neonatal medical condition known as necrotizing enterocolitis.  These newborn NEC formula lawsuits make a lot of allegations.  But at their core, they allege that the makers of these formulas knew of the risk of NEC and did nothing to warn families and give them a choice.

If your premature baby was diagnosed with NEC after being given Similac or Enfamil formula, you may be able to participate in a class action lawsuit against the formula companies and receive financial compensation for the harm that was done to your child.

Our law firm is currently seeking new preemie baby formula lawsuits to represent families who have suffered as a result of this infant formula.  Our NEC formula lawyers are bringing lawsuits against baby formula manufacturers. Three cases have already gone to trial in state court as we discuss below.  The first trial in the MDL will be in May 2025.

On this page, you will find:

1. The latest news and updates on the ongoing NEC infant formula litigation in federal and state courts,
2. How our toxic NEC formula lawyers believe these claims will unfold, and
3. Predicted settlement payouts if this litigation is as successful as expected.

Call our baby formula lawyers today in all 50 states at 800-553-8082.  Time may be limited to bring an NEC lawsuit.  Call our attorneys right now.

NEC Class Action Lawsuit Status Updates

I know many of you are closely following the NEC baby formula lawsuit.  So before we get into the substance of these lawsuits, let me give you a quick update on the latest in the litigation.  

December 13, 2024: State Versus Federal Court

The Judicial Panel on Multidistrict Litigation has refused to remand a lawsuit to California state court, keeping the case within the NEC MDL consolidated in Illinois federal court. The suit alleges that Similac and Enfamil formulas for premature babies caused necrotizing enterocolitis after a child was fed the formula in a hospital shortly after birth in May 2014.

According to the complaint, the child required surgery and continues to suffer long-term health consequences. The panel rejected the plaintiff’s argument that federal subject jurisdiction was lacking, noting that such objections do not typically impede transfer.

While this MDL progresses, state court cases involving NEC claims against Abbott and Mead Johnson have moved more quickly, resulting in three verdicts, including a $495 million total damages award in Missouri earlier this year and a $60 million verdict against Mead Johnson. So many plaintiffs, like this one, are looking hard at state court options.

December 2, 2024: Case Update

The NEC infant formula MDL maintained its pace from October, adding 26 new cases again in November—a 4.3% increase—bringing the total to 626 cases. Because you are seeing verdicts in state court, more lawsuits are being filed in state court in recent months.

November 26, 2024: Next Hearing

Judge Pallmeyer has scheduled an in-court status hearing for December 19, 2024, at 2:00 p.m.  The status hearing will likely address key issues, including the bellwether selection trial preparation updates, the progress of discovery, and, with any luck, settlement efforts. Both sides will present their view on trial readiness and any unresolved disputes that could impact the timeline.

November 21, 2024: Reflections on First Loss

The recent defense win in Missouri highlights the unpredictable nature of jury trials. While the plaintiffs in that case faced a setback, the verdict is unlikely to halt the momentum of the broader NEC litigation. Plaintiffs’ attorneys remain optimistic, pointing to the substantial compensatory and punitive damages awarded in prior state court trials as evidence of the litigation’s overall strength.

November 16, 2024: Donor Milk

We are seeing more NICUs prioritizing donor milk for preterm infants to reduce NEC risk. These decisions are influenced by the growing body of research linking NEC to cow milk. Does the NEC litigation also push them in the direction?  Of course.

November 1, 2024: First Loss in Missouri Trial Today

The defense verdict in Missouri yesterday will not slow the momentum of this litigation. In October, 26 new cases were added, bringing the total to over 600 pending cases. Many more are being filed in state court. Right now, the state court litigation is blowing past the MDL in terms of settling the tone of this litigation and that is causing more plaintiffs to file in state court.

Yesterday I was talking about the tea leaves pointing to a plaintiff’s victory.  You can never predict how a trial will turn out.  Defendants go their first defense verdict in Whitfield.  Plaintiffs’ lawyer were certainly confident.  They asked for $6 billion in punitive damages in closing statements.

October 31, 2024: Trial Update

October 26 2024: Trial Continues

We are into the defense case in the Whitfield trial. Defense expert  Dr. David Stevenson testified that he believes Kaine Whitfield, the child at the center of the case, has a genetic condition—possibly Kabuki syndrome—that could explain his intellectual impairments.

The family, of course, alleges his issues stem from necrotizing enterocolitis which they say was caused by Abbott’s and Mead’s cow-milk formulas given after the child’s premature birth. The child also had significant bowel removal, resulting in short bowel syndrome, impacting his nutrient absorption.

Fun fact: Dr. Stevenson never bothered to evaluate the child to form his opinions.

October 9, 2024: Status Conference Tomorrow

As we keep a hopeful eye on the Whitfield trial, there is a status conference tomorrow in the MDL. The key issues include:

1. Motions Pending: There are several motions pending, including a motion by plaintiffs to dismiss non-cancer related cases without prejudice, a motion to enforce discovery orders against L’Oréal that we have talked about, and motions to dismiss filed by multiple defendants (that are going nowhere).
2. Bellwether Process: The parties are working on establishing a bellwether process to select representative cases for early trials we told you about yesterday.
3. Defendant-Specific Discovery Issues: Several defendants, such as Strength of Nature and Namaste Laboratories, have pending motions related to document production and protective orders. Revlon has produced a significant number of documents in response to discovery requests, but plaintiffs are still reviewing these for completeness.
4. “Second-Wave” Defendants: Motions to dismiss have been filed by defendants like Advanced Beauty, John Paul Mitchell, and Wella Operations, with responses and replies being reviewed.
5. Amendment to Case Management Order 10: The parties are working on an amendment to streamline the process of identifying and tracking plaintiffs, particularly those dismissed without prejudice, to ensure compliance and ease of re-filing if necessary.

October 8, 2024: Bellwether Trial Schedule

We finally have a bellwether trial schedule in the MDL. Lawyers on both sides  have reached an agreement on the proposed dates for the first four bellwether trials:

1. May 5, 2025:  Mar v. Abbott Laboratories, Case No. 1:22-cv-00232
2. August 11, 2025:  K.B. v. Abbott Laboratories, Case No. 1:22-cv-05356
3. November 3, 2025: Brown v. Abbott Laboratories, Case No. 1:22-cv-02001
4. February 2, 2026: Inman v. Mead Johnson & Company, LLC, et al., Case No. 1:22-cv-0373

So assuming the court signs off, the first trial date in less than seven months away.  Our lawyers think an NEC settlement agreement will be reached before these cases go to trials. (But we also though the defendants would not be foolish enough to let the last two lawsuits go to trial.)

October 7, 2024: New NEC Trial

Opening statements kicked off the latest NEC baby formula trial in Whitfield v. St. Louis Children’s Hospital. Testimony will continue today.  See our October 1 update.

What sets this case apart from the other two verdicts is that the doctors are being sued.  Why would the doctors be responsible in these lawsuits?  If the doctor is going to say on the witness stand, “Sure, we knew the risks, but we went ahead and fed the infant cow-milk formula anyway and did not bother to tell the parents of the risks,” they are also responsible.  This is particularly true if, like this case, the hospital had donor milk available as an option.  What parent would not take donor milk if properly advised of the risks?

NEC baby formula cases in the MDL have pinned blame squarely on the formula makers for not slapping a big, glaring warning label of the obvious risks of the product. But when the healthcare providers say it would not have mattered anyway, they will become defendants in these cases.

October 3, 2024: “They Already Knew” Defense

One of the defense arguments in this litigation that perplexes me is the idea that you did not have to warn because of the risk of NEC with baby formula because the hospitals already knew of the risk.

October 1, 2024: MDL Case Totals

The NEC infant formula class action MDL added 27 new cases during the month of September. That brings the total number of cases in the MDL up to 598. After these two huge verdicts, you can expect more claims to be filed in the months to come.

But the energy in this litigation right now is not in the MDL.  A new kicked off in Missouri yesterday. A family is suing Abbott, Reckitt, and St. Louis Children’s Hospital. The lawsuits claims their formulas caused their premature son – born at 28 weeks –  to develop necrotizing enterocolitis in 2017. The family seeks compensation for the severe, permanent injuries her son continues to suffer.

September 30, 2024: Trial Dates in the MDL

The lawyers are expected to provide a joint submission on Friday of proposed trial dates.

September 23, 2024: NIH Funded Study on Donor Milk and NEC

A National Institutes of Health-funded study published in the Journal of the American Medical Association found that extremely preterm infants fed donated human milk had half the incidence of necrotizing enterocolitis (NEC) compared to those fed formula (4.2% vs. 9%).

The study involved 483 infants born before 29 weeks of gestation or weighing less than 1,000 grams. While the donor milk-fed infants grew slightly slower than formula-fed infants, there were no significant differences in neurological development between the two groups as measured by the Bayley Scales of Infant Development at 22 to 26 months corrected age.

The study provides strong scientific evidence that donor human milk reduces the risk of NEC in extremely preterm infants compared to formula feeding. In the context of NEC baby formula litigation, it bolsters plaintiffs’ claims by highlighting the increased risk associated with formula feeding in this vulnerable population.

September 9, 2024: Junk Science

August 26, 2024: Mar v. Abbott Laboratories Case Facts

Yesterday we told you the Mar case was up first.  Let’s talk about the facts of this wrongful death claim.

In January 2014, a premature baby was born at Summersville Regional Medical Center in West Virginia. Weighing just 3 pounds and measuring a little over 15 inches, she was immediately transferred to the Neonatal Intensive Care Unit (NICU) at CAMC Women and Children’s Hospital in Charleston, West Virginia, where she received specialized care.

Initially, the baby was fed exclusively on breast milk provided by her mother, who worked hard to pump and supply her milk. However, on January 14th and 15th, the hospital introduced Similac Special Care 24, a cow’s milk-based product, into her feeding regimen. Shortly after, the baby developed severe symptoms, including a distended abdomen and bloody stool. She was diagnosed with NEC.

The situation rapidly worsened, and on January 15th, the baby had to undergo emergency surgery, where doctors found significant damage to her intestines, including necrosis (tissue death) and a perforation. Despite the medical interventions, the baby tragically passed away on January 16, 2014.

At the time of her death, the baby’s parents had no idea that the cow’s milk-based formula she had been fed may have caused or significantly contributed to the development of NEC.  The baby’s mother filed a wrongful death lawsuit against Abbott seeking justice for her daughter.

August 25, 2024: Parties Agree On Order Of First Four Bellwether Trials

The parties have agreed on the order of the first four bellwether trials, pending the resolution of dispositive motions and reserving the right to seek summary judgment in any of these cases. This stipulation is submitted for the Court’s consideration instead of the previously planned competing position papers. The proposed trial order is as follows:

1. Mar v. Abbott Laboratories (Case No. 1:22-cv-00232)
2. Diggs v. Abbott Laboratories (Case No. 1:22-cv-05356)
3. Etienne & Brown v. Abbott Laboratories (Case No. 1:22-cv-02001)
4. Inman v. Mead Johnson & Co. (Case No. 1:22-cv-03737)

The parties request that the August 29, 2024, Status Conference be held remotely instead of in-person, as initially planned. The parties will be available to address any questions the Court may have.

August 17, 2024: Philadelphia Expected As Next Focal Point Of NEC Lawsuits 

NEC litigation has predominantly taken place in state courts and through federal claims within the Illinois MDL. The big verdict in  St. Louis last month has now put a spotlight on Missouri as well.

Philadelphia is poised to become the next focal point, known for being a supportive venue for victims seeking justice. NEC baby formula lawsuits in Philadelphia are not consolidated, thus no class action exists—each lawsuit is addressed on its own merits.

In Philadelphia, a distinct tactic NEC lawyers are using involves plaintiffs suing the hospitals, a move that complicates the defense for manufacturers like Mead Johnson and Abbott. Typically, defendants aim to align their defense strategies. Yet, the significant verdicts might tempt hospitals to distance themselves from manufacturers, blaming them for inadequate warnings about product risks.

The first trial in Philadelphia addressing NEC-related injuries from baby formula is anticipated to commence this spring.

August 9, 2024: Mead Johnson Files Notice To Remove NEC Lawsuit To MDL In Illinois 

Mead Johnson filed a notice to remove an NEC lawsuit to the MDL in Illinois.

The plaintiff, a Virginia resident, alleges that his premature infant daughter developed NEC and subsequently died after consuming Mead Johnson’s preterm infant formula in 2007. The defendants argue that the case meets the criteria for federal jurisdiction due to diversity of citizenship under 28 U.S.C. §§ 1332(a), 1441, and 1446, as the plaintiff and the Mead Johnson defendants are citizens of different states, and the amount in controversy exceeds $75,000.

Mead asserts that Abbott Laboratories and Abbott were fraudulently joined to prevent removal under the forum defendant rule since there is no claim that the child consumed any products manufactured by Abbott. The notice contends that Abbott’s involvement is a sham to obstruct the removal process. The defendants emphasize that the plaintiff’s claims against Abbott have no reasonable possibility of success under Virginia law, which governs this case, because the injury and related events occurred in Virginia

Whether this case is heard in Virginia or Illinois, Mead is going to have to offer a fair settlement or face a jury.

July 31, 2024: Plaintiffs’ Lawyers Granted Permission To Depose Five Individuals 

Things are still plodding along in the federal MDL. Plaintiffs’ lawyers were granted permission to depose five individuals by August 20, 2024:

• Dan Achimov – Worked in portfolio management and product innovation, potentially holding information on the company’s infant formula products, including those implicated in the NEC litigation.
• Brian Berg – A scientist associated with pre-clinical research on NEC and involved in product innovation at Mead Johnson, potentially providing insight into scientific studies and product development.
• Craig Hadley – Former Head of Regulatory for Infant Formula and Child Nutrition Innovation, with knowledge about Mead Johnson’s regulatory compliance and interactions with regulatory agencies.
• Daniel Secada – Senior Vice President of Nutrition, sitting on Mead Johnson’s Nutrition Leadership Team, possibly overseeing decisions related to infant formula products, including preterm infant formula development.
• Justin Wells – A marketing executive involved in project management and potential partnerships related to the key issue of cow’s milk formula alternatives, relevant to the litigation focusing on product content and marketing practices.

The court will maintain the existing deadline for the close of fact discovery on August 9, 2024, allowing for a potential limited extension if necessary for outstanding written discovery requests.

The order follows a dispute over delays in scheduling depositions and obtaining written discovery, which was partly due to Mead Johnson’s involvement in a related state-court case. The plaintiffs’ lawyers had served new discovery requests after the initial cutoff date, which Mead Johnson opposed, leading to ongoing discussions to resolve these outstanding issues.

Certainly, the MDL court feels new pressure to move these cases along with these state court cases going to verdict.

July 26, 2024: Missouri Jury Awards $495 Million In Damages 

July 19, 2024: Abbott CEO Contemplated Withdrawing Premature Infant Formula From Market

July 11, 2024: First Trial Against Abbott For Infant Formula Begins In Missouri 

The first trial against Abbott for infant formula designed for premature babies began in Missouri, with the plaintiff’s attorney arguing that Abbott’s cow’s milk-based formula, sold under the Similac brand, caused a plaintiff’s daughter to develop necrotizing enterocolitis.

This is a huge trial that will have a bellwether effect the NEC settlement amounts throughout the litigation.  This trial follows a similar case where a jury awarded $60 million to a mother whose premature baby died after receiving Enfamil infant formula made by Mead Johnson, marking the first NEC-related verdict.  See the March 15 update below.

June 30, 2024: New Lawsuit Filed In NEC MDL

A new NEC lawsuit was filed on Friday alleging that a prematurely born infant at Rose Medical Center in Denver, Colorado, developed severe health complications after being fed cow’s milk-based products. The infant, born on June 19, 2002, was given products including Enfamil Premature Infant Formula and Enfamil Human Milk Fortifier shortly after birth.

According to the lawsuit, shortly after consuming these cow’s milk-based products, the infant developed NEC. The condition, as it usually does, led to severe complications, necessitated surgery, and resulted in ongoing negative long-term health effects for the child.

The plaintiffs assert that the NEC and subsequent health issues have caused significant financial and economic losses, as well as emotional distress. They also claim that they were not informed of the risks associated with feeding cow’s milk-based products to preterm infants. The lawsuit alleges that if the mother had been aware of the potential health risks, she would not have allowed these products to be used.

It is noteworthy that NEC lawyers continue to file lawsuits for victims whose injuries occurred over twenty years ago. These are viable claims, but the challenge in many of these cases is finding the medical records from that time to support them.

June 29, 2024: NEC MDL Schedule Moving Forward

Let’s take a look at the schedule moving forward:

June 17, 2024: NEC Test Trial To Begin May 5th 2025

The first NEC baby formula test trial in the MDL will be on May 5, 2025.

May 30, 2024: New NEC Lawsuit Filed This Week Highlights The Fact That Many NEC Cases Occurred Long Ago

A NEC lawsuit filed this week underscores that many of these cases occurred long ago.  This case involves a premature infant born at 32 weeks and 6 days gestation on May 29, 2004, at Children’s Memorial Hermann Hospital in Houston, Texas. Weighing less than six pounds at birth, the infant was admitted to the NICU (Level II) and initially placed on low-volume D10W. The infant was fed Enfamil Premature 20, a cow’s milk-based formula, via continuous feedings.

Around June 1, 2004, the infant developed symptoms indicative of NEC, including emesis with abdominal distention, bloody stools, and x-ray imaging revealing dilated loops of bowel pneumatosis and portal air. Diagnosed with NEC, the infant was immediately taken off formula feedings, received blood transfusions, and was prescribed double antibiotics.

Due to worsening respiratory failure, sepsis, and increasing abdominal distension, the infant required intubation from June 3 to June 7, 2004. Subsequently, the infant was transferred to Texas Children’s Hospital NICU for continued management and remained there until being discharged home on July 23, 2004.

The lawsuit claims that the infant’s mother was unaware that the cow’s milk-based formula could cause NEC, holding the formula manufacturers accountable for the severe health complications that ensued.

May 15, 2024: MDL Judge Kept Nevada NEC Lawsuit In Illinois State Court 

In a new opinion, the MDL judge kept a Nevada NEC lawsuit in Illinois state court, where it was originally filed.  The claim at issue is a classic NEC lawsuit.  A child was born prematurely and given Mead’s formula at a Nevada hospital, leading to a diagnosis of NEC and significant medical interventions, including extensive bowel removal. The child has spastic cerebral palsy.

The backstory is an NEC lawsuit was originally filed in Illinois state court, believing that Mead maintained its principal place of business there. However, after Mead transferred the case to federal court in Nevada, it was eventually sent back to Illinois for consolidated pretrial proceedings as part of MDL No. 3026.

Two years into the case, the plaintiffs’ NEC lawyers found new evidence suggesting potential negligence by Nevada medical staff in treating the plaintiff’s child. This led to a motion to amend the complaint to include these staff as defendants and remand the case to state court due to a lack of complete diversity.

As the case evolved, an expert’s testimony pointing to the radiologist for a delay in the diagnosis of NEC led to the inclusion of that doctor as a defendant.  The destroyed complete diversity of citizenship and potentially remand the case to state court.

There are different views about whether MDL or Illinois state court is the better venue for an NEC lawsuit.  Certainly, the recent $60 million verdict helped push many attorneys into the state court camp.

May 8, 2024: MDL Judge Issues New CMO To Encourage Cautious Naming Of Defendants  

Many plaintiffs’ lawyers are reflexively naming both defendants in NEC lawsuits.  The MDL judge, wanting to force victims’ lawyers to be more circumspect in who is named as a defendant, has issued a new case management order specifically targeting the involvement of Mead Johnson & Company.  The Order stipulated the company should only be named in cases where there is clear evidence that the infant consumed their manufactured or distributed products.

The court outlines specific protocols for identifying such products. Before filing a lawsuit, plaintiffs’ attorneys must thoroughly review all the infant’s medical and feeding records from birth through discharge to verify product usage. If these records do not conclusively show Mead Johnson’s products were used, attorneys must engage in further investigation to obtain this proof.

Failure to properly identify Mead Johnson products or comply with these protocols can result in dismissal from the lawsuit. The order emphasizes thorough pre-suit diligence by plaintiffs’ counsel to ensure only relevant cases involving Mead Johnson proceed in this NEC baby formula MDL.

April 5, 2024: New Lawyers Enter Their Appearances For Mead Johnson In MDL

A lot of new lawyers entered their appearances for Mead Johnson this week in the MDL. Could it be a coincidence? Sure. But I like to think they are rattled by that $60 million verdict.

March 15, 2024: Illinois State Court Jury Awards $60 Million To Plaintiffs In NEC Lawsuit 

An Illinois state court jury awarded $60 million to plaintiffs in a state court NEC lawsuit against Mead Johnson. The jury found that the company did not adequately warn of the risks of NEC associated with its cow’s milk-based formula for premature infants and that failure to warn led to a child’s death.

This is the first NEC failure-to-warn lawsuit to go to trial. This landmark decision is bound to bring new attention to this litigation. The jury sent a real message. Plaintiffs’ lawyers asked for $25 million, and the jury awarded $60 million. It is hard to imagine a stronger statement.

March 7, 2024: MDL Judge Tells NEC Lawyers She Is Willing To Monitor Depositions To Assure Compliance 

Judge Rebecca Pallmeyer told NEC baby formula lawyers she was willing to monitor depositions to assure compliance.   The problem for plaintiffs in most MDLs is corporate witnesses who will not answer questions.  Certainly, having a federal judge listening to your deposition testimony has a chilling impact on the urge to be noncompliant.  The judge encouraged the parties to communicate any difficulties during depositions and reiterated her availability to assist as needed.

November 1, 2023: Four Bellwether Cases Selected To Go To Trial 

Four critical “bellwether” cases have been selected to go to trial in the NEC class action lawsuit in federal court, providing insights into how juries might react to evidence presented in all related lawsuits. These trials involve cases of infant death and severe complications due to NEC after being fed the formulas. While the first trial date hasn’t been set, they are expected to begin by 2024. The outcomes of these bellwether trials could influence potential settlements or further individual trials.

You would think and hope that a NEC formula settlement will happen before, during, or immediately after this stretch of trials.  I think Mead and Abbott would be foolish to let even one of these lawsuits go forward.  If plaintiffs get a huge verdict, it will be hard to put the genie back into the bottle regarding settlement amount expectations.

But what if they do not settle after these four bellwether trials?  If no settlements are reached after the initial four trial dates, Judge Pallmeyer will likely send many individual cases back to various U.S. District Courts nationwide for their own trial dates.

September 14, 2023: Plaintiffs’ Motion Partially Approved And Partially Denied 

The motion by the plaintiffs to prolong the bellwether selection date and to finalize the close of fact discovery (394) was partially approved and partially denied. NEC lawyers are ordered to present a mutually agreed-upon order detailing the updated discovery timetable.  The attorneys are directed to liaise with the courtroom deputy to fix a date for the subsequent status hearing, which will take place in about 45 days, either in person or via video conferencing.

August 21, 2023: Peyton v. Abbott Filed Directly Into NEC MDL

Peyton v. Abbott, a new NEC lawsuit, was directly filed into the MDL (1:22-cv-00071) in Illinois on Friday.  This lawsuit addresses the harm and injuries endured by a mother and her minor child from NEC.  The child has faced extensive health challenges due to consuming a bovine-milk-based infant formula produced by Abbott Laboratories Inc. The child developed necrotizing enterocolitis (NEC) after being fed Abbott’s cows’ milk-based formula. Plaintiffs’ lawsuit underscores the effort Abbott made to promote the idea that Similac products are similar to breast milk, marketing Similac as an optimal option for infants.

Anticipating a potential statute of limitations defense because the case is 17 years old, Plaintiffs’ lawyers alleged that because of Abbott’s deceptive advertising and insufficient warnings, the Plaintiffs were unaware that using its cow milk-based formula could considerably heighten the risk of NEC. The mother only became aware of this risk within two years of filing her lawsuit.

July 11, 2023: Statute of Limitations Issues Expected To Be A Battle In Some NEC Lawsuits 

The issue of the statute of limitations will be a battle in some NEC lawsuits. While we’re confident plaintiffs” are on the right side of this issue in most, if not all, claims, it will be a complex battle in certain cases.

A San Francisco Superior Court judge has tentatively approved Abbott Laboratories’ motion to dismiss sixteen lawsuits related to NEC baby formula. The judge’s decision offers parents the chance to revise and refile their complaint and the battle with renew. Lawyers for the parents maintain that the two-year timeframe to file their complaints should commence only when they recognize the alleged problems with the formula. This stance tracks with established legal principles of fundamental fairness—who do you sue when the basis for your lawsuit has been kept from you?

June 28, 2023: Hayes v. Mead Johnson & Co Transferred Into NEC MDL

Hayes v. Mead Johnson & Co, LLC, et al. (3:23-cv-62) is one of the most recent cases to be transferred into the NEC infant formula class action MDL. The case was originally filed in the Southern District of Indiana by Sandra Smith, as guardian of Adam Smith.

Adam Smith was born very prematurely (23 weeks) in April 2003. After his birth, Adam was given Enfamil Premature 24 formula, a cow’s milk-based product made by Mead Johnson. Adam was given the formula 28 times in the first month of his life.

During that time, he developed various symptoms of gastrointestinal distress. He was diagnosed with NEC and had to undergo surgery to remove a section of his bowel, and continues to live with various complications. (The case is a matter of public record, but we did change the last names.)

April 25, 2022: Final Case-Specific Discovery Plan Approved For Bellwether Cases

The final case-specific discovery plan has been approved for the pool of 12 bellwether cases in the NEC formula class action MDL. The discovery protocols permit each side to conduct depositions of case-specific factual witnesses and treating doctors in each of the 12 cases. Once this process is completed, 4 out of the 12 cases will be selected for the opening round of bellwether trials. A final pre-trial conference is currently set for March 11, 2024, at which time the initial trial date will be finalized.

April 1, 2023: Study From Emory University Suggest African-American Infants Are More Likely To Suffer From NEC 

A depressing but not surprising new study from Emory University suggests that African-American infants born prematurely are more likely to suffer from necrotizing enterocolitis (NEC) and die from it than white infants.  Our clients in the NEC litigation are disproportionately minorities, so the study confirms what we see on the ground.

This study underscores healthcare disparities and a lack of access to human donor milk in certain communities, which may increase the incidence of black preemie infants developing the disease from infant formula.

January 17, 2023: 97 Total Pending Cases In NEC MDL

Nine new infant formula NEC lawsuits were filed and transferred into the NEC class action MDL over the last month. There are now a total of 97 NEC formula lawsuits pending in the MDL. This number represents the total plaintiff population (other than those in state court) because there is no claim registry in this MDL.

Is this even close to the total number of NEC baby formula lawsuits we can expect?  No.  Our firm has more than 97 NEC clients.  But this litigation will be small.  This may help plaintiffs get reasonable NEC lawsuit settlements. Why?  Smaller litigation is less burdensome for the defendants, who can make reasonable settlement payouts without destroying the company’s profitability.  These defendants are making a fortune selling baby formula.  There is plenty of money left over to pay fair settlement amounts to children who have suffered these awful injuries from NEC.

January 6, 2023: Judge Plans On Holding Science Day In NEC Class Action

Judge Pallmeyer is planning to hold a “science day” in the NEC infant formula class action lawsuit. Science days are common in complex mass torts. They give lawyers for both sides in the litigation the chance to make presentations aimed at educating the MDL judge on the scientific evidence and issues involved in the cases. Judge Pallmeyer is requiring the parties to provide potential dates for the NEC science day at the upcoming January status conference.

November 11, 2022: Eight Cases Identified For Participation In Bellwether Program 

Eight cases have already been identified for participation in the bellwether program in the infant formula NEC class action MDL. The defendants will pick four more cases to be included in this group by the end of the month. The MDL Judge recently issued an Order formally approving the fact sheet form that each of the plaintiffs in these 12 bellwether cases will be required to complete and submit. The fact sheet will be the first step in the bellwether discovery process. Depositions of witnesses and experts will follow.

November 7, 2022: 29 Pending Cases Remanded To State Courts In PA

The judge in the NEC pre-term infant formula MDL granted a motion to remand 29 pending cases back down to state courts in Pennsylvania. The motion was granted because these claims involved claims against not just the formula manufacturers, but also the local hospitals that fed to the formula to the infants.

The presence of these local hospitals as defendants in the cases meant that the requirements for diversity jurisdiction in federal court were not met and, therefore, the cases were subject to remand. Following the removal of these 29 cases, there are now 106 pending cases in the NEC formula MDL.

October 8, 2022: Bellwether Case Selection Process 

In the NEC baby formula MDL, the judge has received a list of 66 potential NEC cases. From this list, the court will randomly select four cases to be included in the bellwether candidate pool.

This pool will consist of 12 cases in total: four chosen by the plaintiffs, four chosen by the defendants, and four randomly selected by the court. These 12 cases will then undergo fact discovery. Afterward, each side will select two cases from this group for bellwether test trials.

September 15, 2022: NEC Judge Issues First Significant CMO

Last week, the Judge in the infant formula NEC class action MDL issued her first significant case management order. Amended CMO No.7 sets the rules and time frame for selecting bellwether test cases for discovery and trials. The first step will involve the selection of a pool of 12 “bellwether discovery” cases to serve as potential candidates for test trials.  Why is this a big deal?  You never get close to a settlement in litigation like this without the pressure of a trial date.

The plaintiffs, defendants, and the court each select 4 cases to comprise this initial pool of 12 and this process will be completed by November 23, 2022.  So it is just months away. Once finalized, the 12 cases will then go through a brief fact discovery process so both sides can learn more about the cases. Once fact discovery wraps up, four cases will be selected from the pool of 12 and these 4 cases will be the initial bellwether trial cases. The bellwether trials will be scheduled 12 weeks apart and will alternate between defense pick and plaintiff pick.

August 20, 2022: NEC Attorneys Propose Plan For Bellwether Candidate Pool 

Attorneys in the NEC baby formula MDL submitted a proposed plan for the selection of a pool of bellwether candidate cases.  The plan to choose which cases go to trial first is similar to what mass tort lawyers typically see in other class action lawsuits

Under the draft order, the parties will provide the court with a list of 12 NEC lawsuits for the bellwether discovery pool, with even numbers of cases involving both Abbott and Mead Johnson.

Once the pool of 12 lawsuits is selected, they will go through pre-trial fact discovery. Once discovery is completed, both sides will get to select two initial bellwether trial cases for a total of four test trials.

You can guess how this works.  Plaintiffs’ lawyers will pick the NEC lawsuits that have the best facts and are the most likely to win at trial and defense attorneys will pick the weakest cases that are most likely to lead to a defense verdict.

August 10, 2022: NEC Lawsuit Pretrial Procedures Being Developed

The NEC baby formula class action lawsuit in the Northern District of Illinois continues to come into focus as the Plaintiffs’ MDL Leadership Committee is in the final stages of working out an agreement with the defendants as to discovery protocol and other procedures. In the meantime, about a dozen plaintiffs have succeeded in having their cases remanded back to state court based on a lack of diversity jurisdiction.

July 27, 2022: New Study Underscores Plaintiffs’ Claim for a Warning

NEC remains one of the leading causes of death among premature infants, according to a new medical study recently published in the journal JAMA Pediatrics. The study concluded that premature babies diagnosed with NEC increased their chances of dying by a factor of 7. Even for those infants who survive NEC, however, the study found that a majority face permanent disabilities and prolonged medical care.

July 22, 2022: NEC Class Action Lawsuit Gaining Steam

Nine new NEC formula lawsuits were filed and transferred into the Preterm Infant Nutrition MDL over the last 30-day period (June 15, 2022, to July 15, 2022). The number of pending baby formula cases in the federal NEC class action lawsuit is 97. Our lawyers predict that the pace of new NEC formula cases will increase over the next few months and then it will eventually slow down.  Our NEC lawyers are seeing fewer new prospective baby formula lawsuits in recent weeks. But more of our NEC lawsuits will be filed in the federal court NEC class action and in state court over the next few months.

July 19, 2022: New Guidelines From AAP

As concerns and lawsuits continue to grow around the link between NEC and bovine infant formula, the American Academy of Pediatrics (AAP) has issued new guidelines that recommend that parents avoid infant formula entirely for new babies. The new guidance urges hospitals to stop allowing the promotion of infant formula products and focus on emphasizing breastfeeding instead.

May 23, 2022: 52 Total Cases Active In NEC MDL

The Formula NEC MDL (In re: Abbott Laboratories, et al., Preterm Infant Nutrition Prod. Liab. Lit.– MDL No. 3026) is formally underway in the Northern District of Illinois. Judge Rebecca Pallmeyer held her first status conference on May 19 and will make selections for the plaintiffs’ Lead Counsel, Liaison Counsel, and leadership committee this week. As of May 16, a total of 52 active cases have been consolidated into the MDL. That number will likely triple over the next month.

May 4, 2022: NEC Lawsuits Move Forward

These lawsuits are moving forward.  Our NEC baby formula lawyers are surprised by the number of parents we hear from every day interested in filing an NEC formula lawsuit.  Our attorneys are finding that the most viable lawsuits are the ones where the child was born after 2011.  The biggest problem our law firm is seeing with older claims is that finding the medical records can be a challenge.  The more recent cases are also better because the warning argument that parents and doctors should have been told of the risks gets stronger every year after 1990.  Still, our lawyers are reviewing necrotizing enterocolitis lawsuits as far back as 2001.  

April 8, 2022: MDL Panel Certifies New MDL NEC Baby Formula Class Action Lawsuit 

The MDL Panel has certified a new MDL NEC baby formula class action lawsuit.  This means any NEC lawsuit filed in federal court will be transferred to Judge Rebecca Pallmeyer, a U.S. District Court Judge in Illinois. This development will help push these lawsuits out of second gear, pushing us towards a trial date that may push Abbott and Mead to offer reasonable settlement amounts for an NEC formula lawsuit.

April 6, 2022: Illinois Supreme Court Grants Request To Consolidate About 20 NEC Formula Cases

The Supreme Court of Illinois previously granted a request to consolidate a group of about 20 NEC formula cases pending in Illinois state courts before a single judge (Dennis Ruth) in the Circuit Court for Madison County. This effectively created a mini-MDL at the state court level. Now, however, Abbott is seeking to have the consolidated cases transferred from Madison County to either Cook County (Chicago) or Lake County, under the doctrine of forum nonconveniens (inconvenient forum).  The reason the Illinois lawsuits matter is because lawsuits filed in Michigan, Ohio, Florida, or any other state might well find their way to Illinois state court.  So if you hire an NEC lawyer far away from Illinois, your baby formula lawsuit may end up in front of Judge Ruth in Madison County, Illinois. 

March 6, 2022: Public Gets Closer Look At Formula Manufacturers Following Similac Recall 

After the Similac recall debacle, Americans are getting a closer look at how baby formula manufacturers put profits ahead of people – and how the FDA is not built to keep these companies in check.  This helps the NEC lawsuits because it shines a disturbing spotlight on how the sausage gets made and how federal regulators mind the store.  

February 14, 2022: Enfamil Joins Abbott In Support Of Request For NEC Class Action

Last week, the manufacturer of Enfamil (Mead Johnson) joined Abbott in support of the request for an NEC baby formula class action lawsuit for all NEC claims in federal court.  This is a good development for plaintiffs who are hoping to avoid active litigation on their infant formula lawsuit. The big point of contention is which court will handle the MDL class action.  The defendants want U.S. District Court in Connecticut. Why?  Their motions did a poor job of explaining that.  Baby formula lawyers for victims prefer the Northern District of Illinois for obvious reasons: both Mead and Abbott are headquartered near Chicago.

February 3, 2022: Possible State Court Class-Action In Illinois 

Our NEC lawyers are still waiting to see if there will also be a state court class-action lawsuit in Illinois. The Illinois Supreme Court has yet to rule. There may be two baby formula class actions pending in Illinois at one time: one in state court and the other in federal court. The formula defendants will likely consent to this class action just like they did the federal MDL. 

January 27, 2022: Medical Literature Supports Plaintiffs’ Contentions 

The medical literature continues to support the contentions made by plaintiffs’ lawyers in the toxic infant formula NEC lawsuits.   This new article underscores the risks associated with NEC and cow milk.

January 18, 2022: Abbott Files Petition To Consolidate NEC Lawsuits Into MDL

Abbott filed a petition with the JPML requesting that all NEC infant formula lawsuits be consolidated into a new MDL. Abbott requested that the MDL be created in the District of Connecticut and assigned to Hon. Stefan Underwood.

Baby Formulas Are Linked to NEC in Premature Babies

Babies born prematurely require extra nutrition to boost their development and growth.

Many premature infants, however, are not able to breastfeed feed. So they are generally given baby formula instead. Similac and Enfamil are the two leading brands of infant formula.

Feeding Preterm Infants

Cow Milk Problem

Most baby formulas, such as Similac and Enfamil, are made from cow milk with various nutrients and ingredients added to mimic human breast milk. While cow milk products were effective in quickly increasing the weight of these infants, recent scientific advancements have revealed strong links between cow’s milk-based products and necrotizing enterocolitis, an undeniably serious condition that can cause death in preterm and severely preterm, low-weight infants.

In response to these recent and not-so-recent findings, alternative fortifiers derived from human milk and non-bovine-based products have been developed. Despite the established causal connection between cow’s milk-based products and NEC, manufacturers, including the defendants, have not made significant changes to their products, packaging, guidelines, instructions, or warnings. They continue to promote and sell cow’s milk-based versions, ignoring the potential harm to vulnerable preterm infants.

While making tons of money, the manufacturers of these infant formulas have conveniently ignored the science over the last 30 years.  That science shows that cow milk formulas cause bacterial septic overload in the stomach of premature babies that can cut holes in their bowels and cause bleeding and infection.

NEC Treatment

NEC can be mild in some infants and extremely serious in others. The first step in the treatment of NEC is to stop all oral feedings and begin the baby on an aggressive course of antibiotics.

Nutrients will then be administered intravenously. If the infection is not stopped quickly enough, it may leave dead tissue in the baby’s intestines. If this occurs, surgery may be necessary to remove the dead intestinal tissue and repair any perforations.

NEC Can Be Life-Threatening

Even a mild case of NEC can be very dangerous and potentially life-threatening for a premature baby. Between 15-40% of premature infants with NEC die.  The main reason for this is that NEC can lead to a fatal blood infection called sepsis.

When NEC destroys the baby’s intestinal tissue, it allows bacteria to leak out of the intestine into the abdominal cavity.

This type of infection is called peritonitis, and if not immediately and effectively treated, it will eventually allow the infection to enter the baby’s bloodstream and become sepsis.

• Video on NEC lawsuit settlement amounts

NEC Consequences

Even when NEC is not fatal, it can cause other long-term or permanent complications and adverse health consequences. One of every 3 babies with NEC will develop intestinal strictures.

This is a narrowing of the intestine. Intestinal strictures can make it difficult for food to pass through and may require surgery to correct. If NEC results in surgical removal of intestinal tissue, it can cause short bowel syndrome and impact the baby’s development and growth.

NEC in Premature Infants Caused by Enfamil or Similac 

NEC only occurs in 1 out of every 2,000 full-term live births in the U.S. In premature births, however, the condition is much more common. NEC occurs in about 10% of all premature babies (born 37 weeks or earlier).

Although the exact cause of NEC is not fully understood, many scientific and clinical studies definitively prove that cow-milk-based infant formulas, such as Similac and Enfamil, significantly increase the risk of a premature infant developing NEC.

But the risk of Ninth premature babies has long been clear.  For years, the American Academy of Pediatrics told us that human breast milk is the best path for preemies because of the risk of NEC from baby formula. Any newborn NEC baby formula lawsuit will focus on this medical literature and ask why Abbott and Mead did not give a warning.

Lancet Study

In 1990, a seminal study published in The Lancet by Dr. Alan Lucas and colleagues examined the relationship between infant feeding methods and the development of necrotizing enterocolitis (NEC) in preterm infants. The multicenter study involved over 500 preterm infants with birth weights less than 1850 grams. The infants were randomly assigned to receive either human breast milk (from their mothers or donors) or standard bovine-based infant formula.

The researchers found a striking difference in the incidence of NEC between the two groups. Infants fed exclusively on formula were significantly more likely to develop NEC compared to those fed human milk. Specifically, the study reported that formula-fed babies were up to six to ten times more likely to develop NEC than those receiving breast milk. The protective effect of human milk was attributed to its unique components, such as immunoglobulins, growth factors, and anti-inflammatory agents, which are not present in bovine formula. This study was one of the first to suggest a strong link between bovine-based formulas and an increased risk of NEC, emphasizing the critical importance of human milk in the diet of preterm infants.

Journal of Pediatrics Study

Approximately ten years later, in 1999, a study published in the Journal of Pediatrics by Dr. Richard Schanler and colleagues reinforced the findings of the earlier Lancet study. This research focused on extremely low birth weight infants and compared the outcomes of those fed with human breast milk (supplemented with human milk fortifiers) to those fed with preterm infant formula derived from bovine milk.

The study found that infants who received breast milk or human milk fortifiers were 90% less likely to develop NEC compared to those fed with traditional bovine-based formula. The data showed a significant reduction in the incidence of NEC among infants receiving human milk products, highlighting the protective role of human milk fortifiers when added to breast milk. These fortifiers provided the necessary nutrients to support the growth and development of preterm infants without the increased risk associated with bovine proteins.

Further strengthening these conclusions, two additional studies published in 2013 offered more definitive evidence on the link between NEC and bovine formulas. One of these studies, appearing in The Journal of Pediatrics, demonstrated that an exclusive human milk diet—including human milk-based fortifiers—significantly reduced the incidence of NEC and surgical NEC compared to diets that included bovine-based products. Another study published the same year corroborated these findings, showing that the use of bovine-based fortifiers increased the risk of NEC even when added to human milk.

Collectively, these studies have had a profound impact on neonatal nutrition practices. They underscore the importance of providing human milk to preterm infants and have led to increased advocacy for the use of donor human milk and human milk-based fortifiers in neonatal intensive care units. The research has also played a critical role in the ongoing NEC baby formula litigation by providing scientific evidence of the risks associated with bovine-based infant formulas.  Did the companies warn doctors and parents about these concerns?  No.

New NEC British Medicine Study

A study published on October 14, 2021, in the British Medical Journal, adds new fuel to any necrotizing enterocolitis formula lawsuit.  The study suggests that the makers of infant formulas such as Similac and Enfamil have funded biased and unreliable clinical product trials. The researchers found that the infant formula trials showed a “universal lack of transparency” and may have downplayed the risks of NEC associated with their cow-milk formula products.

More NEC Formula Studies

• Evidence-Based Feeding Strategies Before and After the Development of Necrotizing Enterocolitis (Expert Rev. Clin. Immunol. July 2014). Here is the key quote: “Necrotizing enterocolitis (N.E.C.) is a devastating disease of premature infants with significant morbidity and mortality. It is well established that the risk is increased by the administration of infant formula.”  This will be a key study in any NEC baby formula lawsuit.
• Another round of clinical study results was published in 2016 (Beyond Necrotizing Enterocolitis Prevention – Breastfeeding Medicine ) and 2017 (Human milk is the feeding strategy to prevent necrotizing enterocolitis – Semin Perinatol.). This language here is pretty unambiguous:   “Extremely premature infants who received an exclusive HUM [Human Milk] diet had a significantly lower incidence of NEC and mortality. The HUM group also had a reduction in late-onset sepsis, BPD, and ROP. This multicenter study further emphasizes the many benefits of an exclusive HUM diet, and demonstrates multiple improved outcomes after implementation of such a feeding protocol.”
• In 2019, Cochrane (an independent healthcare research group) released the results of the most comprehensive study to date comparing health results for premature babies fed with bovine formula versus human milk. The results of the Cochrane study put to rest any lingering debate about the existence of a causal relationship between cow-milk-based formulas and NEC in premature infants. This study underscores the risk to babies with NEC.

Makers of Similac and Enfamil Failed to Warn About the NEC Risks

Similac is manufactured and sold by Abbott Laboratories Inc., a large medical device and healthcare product company based in Illinois. You have likely heard of them.  You are less likely to have heard of  Mead Johnson Nutrition Company, the company that makes Enfamil. But it is a 16 billion-dollar company.

Abbott and Mead were well aware of the scientific evidence that their cow-milk-based formulas caused a significantly increased risk of NEC in premature infants. Despite being well aware of the link between their formulas and the risk of NEC, Abbott and Mead deliberately chose not to include a warning label about the NEC risk on their product labeling.

Changing the warning for a baby formula under the United States Federal Food, Drug, and Cosmetic Act is not difficult. (It is a lot easier to change a warning under the FDCA than it is to change, for example, a warning on a drug.)

So why not add a warning? Well, let’s start by saying our lawyers do not know yet. These toxic baby formula NEC lawsuits are just beginning.  But, it is easy to make a prediction based on the facts already on the ground: follow the money.  A warning will lead to fewer sales.  Fewer sales lead to fewer profits and few yachts.  We all know the story, right?

Faced with growing scientific proof that their formulas presented an increased risk for premature infants to develop NEC, Mead and Abbott continue to market their products as safe and failed to warn consumers about this risk.

NEC Lawsuits Against Baby Formula Makers

A growing number of parents and preemies who were fed with Similac and Enfamil formula and subsequently developed NEC are filing product liability lawsuits against the formula manufacturers (Abbott and Mead) for negligent failure to warn.

The lawsuits allege that Abbott and Mead had a duty to warn about the risks of NEC and their baby formula products but deliberately failed to include any such warning while continuing to market their products as safe.

The average verdict in a successful NEC preemie lawsuit is in the millions of dollars. Our baby formula lawyers anticipate similar compensation payouts if plaintiffs win these trials.

But our lawyers do not expect to see Similac lawsuits or Enfamil lawsuits going to trial.  We could be wrong.  But our attorneys think the makers of these baby formulas will seek an out-of-court global settlement of as many NEC lawsuits as they can.

But settlement amounts and trial amounts are not the same things.  So even if the makers of Similac and Enfamil predicted an average jury verdict compensation payout of $2 million per individual case, it would not mean the average settlement amount would be $2 million.  Why?  A settlement is a compromise.

But the infant formula claims may become a class action, albeit one that does not have thousands of plaintiffs. And while the size of the lawsuits could be smaller, the settlement amounts could be huge. Because the injuries are so extreme in many NEC cases, the average individual settlement compensation payout in the baby formula lawsuits could be extraordinary.

Example NEC Baby Formula Lawsuit

Just to give you some context, let’s look at an example NEC lawsuit.

Late last year, an  NEC infant formula lawsuit was filed in the County Circuit Court for Madison County, Illinois against Mead Johnson & Company LLC and Mead Nutrition Company, alleging negligence and other claims.

The complaint in this NEC lawsuit alleges that the plaintiff’s baby was born prematurely in 2013. Initially, the baby was “doing well” on her mother’s breast milk and was progressing normally. Two weeks after birth, the baby was fed Enfamil cow-milk-based formula for several days. The lawsuit claims that the formula caused the baby to develop NEC which required “aggressive medical intervention.”

Sadly, the baby died a week later from complications related to the NEC. The complaint alleges failure to warn what we have been talking about. The lawsuit alleges Mead Johnson knew about the dangers of its bovine-based formula and failed to provide adequate warnings about the risk of NEC associated with the formula.

Why is this NEC baby formula lawsuit not barred by the statute of limitations given the child was born in 2013?  I talk about this below.

Mini MDL NEC Class Action Lawsuit Sought in Illinois

Since February 2021, 33 NEC baby formula lawsuits have filed been in Illinois state courts. Why is Illinois has become a hot spot for the emerging NEC formula litigation?  The manufacturers of Enfamil and Similac are both headquartered in the Chicago area. So there is no federal court jurisdiction when Mead Johnson or Abbott are sued in Illinois.

In December 2021, NEC lawyers for the plaintiffs filed a motion with the Illinois Supreme Court asking that the separate cases be consolidated before a single judge. This procedure is the state court equivalent of an MDL class action.

On January 3, 2022, Abbott and Mead Johnson were granted extensions of time to respond to this request. Both companies will probably be in favor of consolidation since defending a single action will be more efficient than defending 30 separate cases at once.

Illinois May Be NEC Baby Formula Lawsuit Epicenter

The creation of a state court MDL for NEC baby formula lawsuits in Illinois would indicate the rapidly growing momentum behind these cases. As more NEC infant formula lawsuits get filed in 2022, our attorneys expect a new infant formula MDL class action in federal court.

But maybe not.  Illinois law is more advantageous to victims than most states.  Illinois liberally allows lawyers from other jurisdictions to be admitted to work on lawsuits in that state.  Mead and Abbott are both based in Illinois. So they cannot object to answering an NEC lawsuit in that jurisdiction. It may be that a large number of NEC baby formula lawsuits are filed in Illinois, even if they originated in Florida, Texas or any other state.

If this (mini) NEC baby formula class action lawsuit takes off, it will be an important development because it will push these lawsuits involving these milk fortifiers forward. This may force these companies to offer fair settlement amounts to resolve NEC-related injuries and deaths.

What Is the Statute of Limitations for an NEC Baby Formula Lawsuit?

The statute of limitations to file an NEC lawsuit is a complicated question. The deadline to sue depends on the state where the harm occurred. There are often different statutes of limitations for the child – who might have a 21-year deadline to file – and the parents, who usually have a shorter deadline to file suit.

An NEC Lawsuit May Have Discovery Rule Statute of Limitations Extension

There is also arguably a discovery rule issue in the NEC lawsuits that could extend the statute of limitations even further.  NEC lawsuits have alleged that because of misleading marketing and lack of adequate warnings of the risks of cow milk, parents did not know and could not have known of the link between NEC and baby formula from cow milk until just recently.

But there could be a short window to file a claim. So if you think you might want to bring a baby formula lawsuit, call an NEC formula lawyer today to fully understand your rights even if you do not have a present intention of filing an NEC lawsuit.

Similac vs. Enfamil: Is One Worse Than the Other?

Similac and Enfamil are the two leading brands of infant formula. When it comes to causing necrotizing enterocolitis (NEC) in premature babies, it appears both Enfamil and Similac are equally bad. (The Similac recall from bad baby formula coming out of Michigan was not specific to NEC.)

While future research may shed more light on whether Similac or Enfamil poses a greater threat, the consensus among healthcare professionals and legal experts remains clear: the primary risk factor for NEC in preemies is the use of cow’s milk-based formulas, regardless of the brand.

How Will Mead’s and Abbott’s Lawyers Defend NEC Lawsuits?

First, the defense attorneys will argue preemption.  The gist of this argument is that premature infant formula claims under state law are not permitted by the Infant Formula Act (“IFA”) 20 U.S.C. § 350a.  This is not a winning argument, and it has never been successfully made.

In a medical malpractice case involving NEC in 2021, one defense expert made this argument which I think you can expect to see from Mead and Abbott:

Plaintiffs’ claim that any provider ‘caused’ NEC is not supported by the literature. The cause of NEC is not understood at this time. Because there is no medically accepted single factor that causes NEC, no one can state within a reasonable degree of medical certainty what causes NEC.

In particular, it is impossible to know what caused the infant plaintiff to develop NEC. Even among exclusively human mild-feeding preterm infants, NEC can occur. The fact is NEC can neither be predicted nor prevented.

The main defense against developing NEC is avoiding preterm delivery; however, in this case, the pregnancy could not be extended because [the baby’s mother] experienced a premature preterm rupture of membranes before she arrived at [the hospital.]

Further, the claim that the specific cause of NEC can be identified is rank speculation. Although NEC occurs most frequently in preterm infants, it occurs in term infants

This argument flies in the face of mountains of medical literature.  I think the defense attorneys’ arguments are so flawed in these cases I suspect the defendants will offer reasonable settlement amounts before any NEC lawsuit makes it to trial.

How Does NEC Cause Damage to the Intestine?

NEC can cause severe damage to the intestine due to reduced blood flow and oxygen supply. Normally, the ductus arteriosus—a blood vessel connecting the pulmonary artery and aorta—closes shortly after birth, redirecting blood flow so that the infant’s organs, including the intestines, receive adequate oxygenated blood.

With children with NEC, the ductus arteriosus can remain open. This can cause a condition called Patent Ductus Arteriosus (PDA). What happens is the failure to close causes critically need oxygenated blood to bypass critical organs like the intestines and return to the lungs. This misdirection can lead to pulmonary edema and a significant reduction in oxygenated blood supply to the intestines.

Oxygen deprivation of any kind causes having for newborns.  In this situation, it in the intestines damages the lining of the bowel wall, making it more susceptible to bacterial infection and erosion. This problem is exacerbated in premature and low birth weight infants, who are often already in a tough spot with underdeveloped and vulnerable intestines.

When these infants are fed cow’s milk-based formula, the condition worsens rapidly, as the formula is not well-tolerated by their fragile systems. Both Similac and Enfamil products are derived, as we have been saying from cow’s milk, which is not easily digested by the immature digestive systems of premature babies.  The compromised intestinal lining becomes inflamed and, in severe cases, may develop perforations, allowing bacteria and stool to leak into the abdomen. This can cause life-threatening sepsis, a severe infection that can quickly lead to permanent injury or death.

One of the downside risks to the child is a condition known as short bowel syndrome. With this condition, the infant has reduced ability to absorb nutrients due to the loss of large portions of the intestine. Long-term complications can include chronic digestive issues, malnutrition, and neurological impairments.

Call Our Lawyers About Your NEC Baby Formula Lawsuit

Our law firm is currently investigating potential NEC toxic baby formula lawsuits. We are particularly interested in hearing from parents of preemies who took Similac or Enfamil formula and subsequently developed NEC.

If you believe your child developed NEC as a result of a cow-milk-based formula, call our NEC baby formula lawyers today for a free consultation at 800-553-8082 or reach out to us online for a free case evaluation.