Lawsuit Information Center
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.
On this page, you will find:
- The latest news and updates on the ongoing NEC infant formula litigation in federal and state courts,
- How our toxic NEC formula lawyers believe these claims will unfold, and
- 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.
July 21, 2025 – New Lawsuit in New Jersey State Court
A family from Kansas City has filed an NEC lawsuit in New Jersey state court, alleging that their premature infant developed necrotizing enterocolitis after being fed cow’s milk-based formula while hospitalized in a New Jersey NICU. The child, born at just over 27 weeks gestation and weighing less than two pounds, was allegedly fed bovine-based formula products manufactured by Abbott and Mead Johnson shortly after birth.
According to the complaint, the infant began showing signs of gastrointestinal distress within weeks. Medical records cited in the filing document an NEC diagnosis, emergency bowel surgery, and ongoing complications requiring continued care. The parents were never told of the increased risks associated with cow’s milk-based formula in preterm infants, nor advised of alternatives such as donor human milk or human milk-based fortifiers.
The lawsuit points to a failure on two fronts: by the hospital, for not informing the family or obtaining proper consent; and by the formula companies, for continuing to promote their products for premature use without adequate warnings, despite longstanding evidence and internal knowledge linking those products to NEC in vulnerable infants. The complaint also notes something we do not talk about enough: the hospital’s use of the formula occurred within a broader context of longstanding relationships and marketing influence by the manufacturers.
Because the case includes New Jersey-based defendants and was filed in New Jersey state court.
July 12, 2025 – Blow to Pennsylvania Docket
Judge Pallmeyer denied remand in six cases filed initially in Pennsylvania, holding that plaintiffs fraudulently joined the in-state hospital defendants. Although the court had previously ruled that negligence claims against the hospitals had a “reasonable possibility of success,” it took a different approach this time, focusing not on the merits but on litigation behavior. The court found plaintiffs had shown “no real intent” to pursue the hospital claims, citing minimal discovery efforts, a single short deposition, and a stated refusal to appeal the state court’s dismissal of the hospitals.
This “no real intent” doctrine is a novel, controversial carveout that allowed Abbott to bypass both the one-year removal bar and the voluntary/involuntary rule. The court acknowledged its earlier merits rulings remained valid. But the judge decided that the plaintiffs’ strategic conduct of naming hospitals only in states where doing so blocks removal undercut their good faith. While the hospitals were used to anchor the case in state court, the court viewed the lack of discovery and perfunctory litigation efforts as evidence that plaintiffs never seriously intended to prosecute those claims. The problem is that it is a sharp departure from the usual deference courts give to a plaintiff’s choice of forum.
Recognizing how consequential this ruling is for other NEC cases, Judge Pallmeyer certified two questions for immediate appeal, including whether a lack of good-faith litigation conduct alone can establish fraudulent joinder. Plaintiffs should welcome the opportunity. Letting courts sidestep remand by second-guessing litigation strategy, despite admittedly viable legal claims, threatens to turn the fraudulent joinder doctrine into a broad removal weapon for corporate defendants. The Seventh Circuit now has the chance to rein that in before it becomes a fixture in mass tort playbooks.
This will just slow down those cases. The remainder of the litigation will proceed.
July 8, 2025 – Missouri Lawsuit to Stay in State Court
Last week, Judge Pallmeyer remanded a Missouri-filed NEC baby formula case back to state court, rejecting Mead Johnson’s attempt to keep the case in the MDL.
The court ruled that the inclusion of a Missouri-based Mead Johnson sales representative was not “fraudulent joinder.” Despite Mead Johnson’s argument that the sales rep had no individual duty to warn or liability under Missouri law, the judge found the plaintiff had a reasonable possibility of succeeding on state law claims–including negligent misrepresentation–based on allegations that the sales rep made misleading claims about Enfamil’s safety to hospital personnel. Because Missouri law permits individual liability for employees who are aware of product risks and communicate with providers, the court held that removal to federal court was improper under the forum defendant rule.
This decision highlights a real choice some plaintiffs face in NEC litigation: whether to join local defendants to keep cases in favorable state courts or file directly in the MDL. While the MDL offers coordination and potential efficiencies, plaintiffs’ counsel often assess whether they can achieve better outcomes by leveraging state law, avoiding preemption fights, and preserving claims that may not fare as well under the MDL’s procedural framework. This ruling strengthens that option by confirming that sales reps can plausibly be held liable under state law, blocking removal, and giving plaintiffs more control over forum selection.
July 7, 2025 – NEC MDL Lawsuits Rise to 744
According to the latest JPML data, the NEC infant formula MDL (No. 3026) has increased to 744 pending cases, up from 740 the previous month. While the month-over-month increase is modest, it reflects continued momentum following Judge Pallmeyer’s recent Daubert ruling that allowed key plaintiff experts to proceed. That decision has injected new confidence into the plaintiffs’ bar in the MDL as a forum as we edge closer to bellwether trials.
June 10, 2025 – NEC MDL Case Count Reaches 740
Based on the most recent JPML data, the NEC infant formula MDL (No. 3026) now includes 740 pending cases, up from 710 reported last month. That marks an increase of 30 new lawsuits filed in May, maintaining the steady pace of filings we saw in April.
This continued growth comes just weeks after Judge Pallmeyer issued a critical Daubert ruling that preserved plaintiffs’ key causation experts. That ruling gives plaintiffs’ law firms more confidence to file as the bellwether trial calendar starts to solidify.
With the only state court defense verdict vacated due to misconduct and the federal court now embracing expert causation testimony, the strategic calculus continues to favor the plaintiffs.
The recent surge in state court activity, particularly in Illinois and Missouri, also suggests a broader litigation strategy is at play as parties continue to position themselves for eventual global settlement talks.
More NEC Lawsuit Updates Back to the Beginning of the Litigation 👈
May 14, 2025 – Huge Win for Plaintiffs
In a pivotal ruling, Judge Rebecca R. Pallmeyer denied the defense’s Daubert motions seeking to exclude two key plaintiffs’ general causation experts in the NEC infant formula MDL, preserving plaintiffs’ core liability theory that cow’s milk–based formulas substantially increase the risk of necrotizing enterocolitis in premature infants.
The court flatly rejected the defendants’ claim that Dr. Logan Spector, a pediatric epidemiologist, lacked qualifications or methodological rigor. While Spector had not previously published on NEC specifically, Judge Pallmeyer found his expertise in pediatric epidemiology and systematic literature review more than sufficient.
Spector’s opinion, based on a methodical review and meta-analysis of over two dozen studies, showed a statistically significant increased risk of NEC in infants fed cow’s milk-based formula versus those fed human milk. Notably, meta-analyses conducted by biostatistician Dr. Rebecca Betensky (whose work was not challenged) found:
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A 67% increased NEC risk in randomized trials (RR = 1.67).
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A 226% increased risk in cohort studies (RR = 3.26).
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A 135% increased odds in case-control studies (OR = 2.35).
Judge Pallmeyer emphasized that Spector’s methodology met Daubert standards: he applied the Bradford Hill criteria, used a replicable search and selection process, and updated his findings when the defense identified missing studies. Incorporating those studies strengthened rather than weakened his conclusions, further supporting the reliability of his opinion.
Neonatologist Dr. Jennifer Sucre’s testimony on biological plausibility was likewise upheld. Using a qualitative weight-of-the-evidence analysis, Sucre detailed how the complex proteins and fats in CMBF can overwhelm the premature gut, feed harmful bacteria, and activate inflammatory pathways (specifically TLR4), ultimately leading to NEC.
Despite not isolating a “specific biological pathway” for each infant, the court found her explanation grounded in scientific evidence and highly relevant to establishing general causation, a necessary step for trial. Allegations of “cherry-picking” were dismissed as unfounded, especially given Sucre’s comprehensive literature review and her grading of over 500 studies.
Both experts’ inability to identify a precise “threshold dose” of CMBF triggering NEC was irrelevant, the court ruled. Daubert does not require general causation experts to determine the exact amount of exposure necessary to cause harm, particularly when the literature reflects a dose-response trend but lacks a precise cut-point. The court noted that such a requirement would be especially inappropriate in the context of premature infant feeding, where ethics prohibit exposing formula to randomized testing to assess harm.
With both experts surviving exclusion, the court denied the defendants’ summary judgment motion. Judge Pallmeyer did leave open the possibility of revisiting specific claims involving cow’s milk-based fortifiers (as distinct from the formula) in the future. But as the upcoming bellwether trials focus solely on formula-related NEC claims, those arguments were deferred.
May 5, 2025 – 27 New Cases Added to MDL
27 new lawsuits were added to the NEC pre-term infant formula MDL during the month of April. That is a slight increase over the 20 new cases we saw in March, and it brings the total number of pending cases in the MDL up to 710.
May 2, 2025 – Bellwether Trial Dismissed
The MDL judge yesterday entered judgment in favor of Abbott Laboratories, finding the company not liable for the death of an infant who had consumed its Similac product. The ruling comes just over a week before the case was set to proceed to trial.
This was by all accounts a very factually weak case for the plaintiffs. So this does not come as a huge shock.
April 28, 2025 – Where Settlement Stands as We Head Towards First MDL Trial
Right now, there are about 360 active cases pending in the federal court system, specifically in the NEC Baby Formula MDL (Multi-District Litigation) centralized in the Northern District of Illinois. In addition to that, there are roughly 600 to 700 cases pending in various state courts, with the most significant concentrations in Illinois, Missouri, and Pennsylvania. That brings the total to just about 1,000 cases nationwide, give or take, depending on the most recent filings and dismissals.
Compared to other mass torts like the 3M earplug litigation, which peaked at more than 300,000 claims, this is a very manageable number. That smaller case load makes it easier for the parties to organize bellwether trials, assess settlement values, and negotiate a resolution without overwhelming the system. There are simply fewer moving parts here. Plaintiffs’ lawyers and the companies involved both know that it is far easier to settle a thousand cases than it is to settle hundreds of thousands even though the settlement payouts in these cases will be much higher than in most mass torts. Fewer cases mean fewer unpredictable outcomes, less administrative burden, and a clearer path to figuring out fair settlement ranges.
March 25, 2025 – New Lawsuit
New lawsuits keep coming in as families continue to hold Mead accountable for the harm caused by its cow’s milk-based infant formula and fortifier. In the latest case, a family from Lexington, Oklahoma, is suing after their prematurely born son, B.H., developed NEC after being fed Enfamil in the NICU.
The lawsuit, filed directly into the NEC formula MDL in Illinois, lays out the now-familiar claims—Mead knew for decades that its formula dramatically increases the risk of NEC in preemies but still marketed it as safe and necessary for growth. The complaint points to overwhelming scientific evidence linking cow’s milk-based formula to NEC and accuses Mead of failing to warn parents and doctors while pushing aggressive marketing strategies to get its products into hospitals.
B.H. suffered severe complications from NEC, requiring extensive medical interventions, and his family is seeking damages for the lasting harm. This case adds to the growing wave of litigation as more families take action against Mead and Abbott for their role in this crisis.
March 15, 2025 – Plaintiffs Just Erased the One Loss They Had in NEC Baby Formula Litigation
A Missouri judge has vacated the only jury verdict that had cleared Abbott and Mead Johnson, ruling that the defense intentionally violated court orders to mislead jurors. This decision wipes out the formula makers’ lone courtroom win and reinforces what prior verdicts have shown—NEC cases are a serious liability for these companies.
This ruling confirms what we previously reported on October 31, 2024—that Abbott’s lead attorney was sanctioned and barred from closing arguments for repeated bad faith violations of court orders. At the time, the trial judge accused Abbott of trying to provoke a mistrial rather than face the evidence. Now, with the verdict overturned, it’s clear why—the defense was never playing fair to begin with.
Judge Noble found that Abbott and Mead:
- Repeatedly introduced inadmissible evidence to mislead jurors.
- Falsely claimed the plaintiff wanted all formula banned, creating fear-based bias.
- Used improper expert testimony and FDA arguments, despite prior court rulings.
- Exploited the mother’s marijuana use without any proof it caused NEC.
This ruling is a huge win for plaintiffs and signals that courts won’t tolerate defense misconduct. Abbott and Mead will appeal, but they’ve now lost their only win, and momentum is fully on the plaintiffs’ side. With prior NEC verdicts totaling nearly $500 million, the pressure is mounting for them to stop dodging accountability and start warning parents about NEC risks.
February 11, 2025 – Motion for Summary Judgment in the MDL
The defendants in the NEC baby formula multidistrict litigation have moved for summary judgment, arguing that the plaintiffs have failed to provide admissible expert testimony establishing that cow’s milk-based infant formula causes necrotizing enterocolitis (NEC) in preterm infants. Their argument largely hinges on their effort to exclude the plaintiffs’ expert witnesses, Dr. Logan Spector and Dr. Jennifer Sucre, under Rule 702 of the Federal Rules of Evidence. If successful, this would leave plaintiffs without the necessary expert testimony on general causation, which defendants argue is a fatal flaw requiring dismissal of all cases. But this is not likely.
This motion reads much like a “Why did you even file this lawsuit?” question, which ignores that judges and juries have already rejected similar defenses and ordered formula makers to pay substantial verdicts. In March 2024, a St. Clair County, Illinois jury awarded $60 million in damages to the family of a preterm infant who developed NEC after being fed a cow’s milk-based formula. Just a few months later, in July 2024, a Missouri jury returned a $495 million verdict against Abbott Laboratories, finding that their Similac formula contributed to a baby’s NEC diagnosis. The defendants’ motion seems to forget this.
The defense argument relies heavily on a report from the National Institutes of Health (NIH) Working Group, which stated that it is “the absence of human milk—rather than exposure to formula”—that is associated with NEC. They also cite a joint statement from the FDA, CDC, and NIH, which concluded that there is “no conclusive evidence that preterm infant formula causes NEC.”
But finding some things that might support your claim does not mean you get summary judgment. Plaintiffs’ response will cite a growing body of research and internal corporate documents suggesting that formula companies have long been aware of the risks but have failed to warn doctors or parents. The summary judgment motion, if granted, would shut down every case in the MDL, but the litigation history—including prior massive jury verdicts—suggests otherwise.
January 26, 2025 – Motion to Exclude Expert
Dr. Sucre is the real deal. She is a nationally recognized neonatologist and physician-scientist at Vanderbilt University, whose groundbreaking research bridges the gap between clinical care and cutting-edge science to improve outcomes for preterm infants. With a deep expertise in cellular mechanisms and preterm infant health, her peer-reviewed work has advanced critical understanding in neonatal medicine, making her a trusted authority in her field.
Somehow, he defendants attempt to paint Dr. Sucre as unqualified, claiming her expertise in lung development diminishes her ability to testify on NEC, despite her medical credentials and her reliance on established biological mechanisms. They further dismiss her reliance on animal and in vitro studies, ignoring the ethical and practical limitations of conducting human trials on such a fragile population. Their strategy is clear: undermine a credible expert to limit the scope of plaintiffs’ evidence and shield themselves from accountability.
You cannot blame the defendants for trying to get rid of Dr. Sucre before trial. They do not want the jury to hear her testimony because it will be very credible and damaging to them.
January 24, 2025: Joint Status Report
The Joint Status Report filed today in the MDL outlines a streamlined pretrial briefing schedule agreed upon by both parties to address Rule 702 motions (expert witness testimony) and dispositive motions. The purpose is to reduce complexity and focus on key issues, deferring certain case-specific motions to trial-specific dates while proceeding with general causation motions and select expert challenges.
Key elements include a staggered schedule for briefing motions related to general and case-specific experts, agreed page limits for filings, and plans to resolve disputes over supplemental reports and depositions. The parties have also set dates for motions in limine and the final pretrial conference for the first bellwether trial, emphasizing collaboration to avoid scheduling conflicts as the litigation progresses. Trial in the Mar case is set to begin on May 5, 2025.
January 8, 2025: Bellwether Trial Schedule
The dates for the first four bellwether trials:
- May 5, 2025: Mar v. Abbott Laboratories, Case No. 1:22-cv-00232
- August 11, 2025: K.B. v. Abbott Laboratories, Case No. 1:22-cv-05356
- November 3, 2025: Brown v. Abbott Laboratories, Case No. 1:22-cv-02001
- February 2, 2026: Inman v. Mead Johnson & Company, LLC, et al., Case No. 1:22-cv-0373
The hope is a global settlement before any of these trials begin. But we will see.
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.
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 that 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’ lawyers were certainly confident. They requested $6 billion in punitive damages in their closing statements.
October 31, 2024: Trial Update
Judge Noble noted that Hurst’s actions seemed aimed at provoking a mistrial, describing his approach as “dilatory litigation tactics” potentially violating Missouri’s legal ethics rules.
This may be a canary in the coal mine for how this case will go. If Abbott is looking to get a mistrial, they cannot be happy with where this trial appears to be going.
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 a 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:
- 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).
- Bellwether Process: The parties are working on establishing a bellwether process to select representative cases for early trials we told you about yesterday.
- 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.
- “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.
- 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 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.
But it goes deeper than that. By failing to include a warning, manufacturers are assuming that every single stakeholder already has complete knowledge of the risks. This assumption is unreasonable and places the burden entirely on healthcare providers to remember, communicate, and mitigate every risk without adequate support or resources. Moreover, even if some hospitals are aware of the risks, not all of them may be up-to-date on the most recent research, and a warning label would give them a heads-up to really consider the costs and the benefits of cow-based milk.
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
This article’s main focus is an attack on the motives of trial lawyers, rather than engaging with the substance of the legal claims. Much of the content seems like a recycled argument from the last article on a different tort. The author leans on the familiar “junk science” narrative without providing any explanation or evidence to support why this science is faulty. There really is meaningful junk science arguments in this litigation.
The only substantive concern raised is the fear that manufacturers may stop producing formula for preterm infants. I agree, it is a valid worry. But it cannot justify discouraging meritorious lawsuits for children and families that have suffered so much. This is particularly true when all the defendants have to do to solve the problem moving forward is to warn doctors and parents of the obvious risk of NEC to premature babies so they can make an informed choice. That is it.
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:
- Mar v. Abbott Laboratories (Case No. 1:22-cv-00232)
- Diggs v. Abbott Laboratories (Case No. 1:22-cv-05356)
- Etienne & Brown v. Abbott Laboratories (Case No. 1:22-cv-02001)
- 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.
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
This litigation will never be the same. Today, a Missouri jury awarded a game-changing $495 million in damages – $95 million in compensatory and $400 million in punitive damages – to an Illinois girl who developed necrotizing enterocolitis after consuming Abbott Laboratories’ specialized formula for premature infants.
Abbott and Mead dismissed the first verdict for $40 million as a fluke. They cannot do that anymore. Why Abbott let this case go to trial is hard to fathom.
Abbott lost about $8 billion in value after the verdict in after-hours trading. What freaked out investors was that the jury did not just find Abbott negligent. It awarded $400 million in damages. That can only mean the jurors were disgusted by what Abbott did.
That is the canary in the coal mine of where this litigation is going. If Mead and Abbott have any sense, they will try to settle as many NEC baby formula lawsuits as they possibly can.
July 19, 2024: Abbott CEO Contemplated Withdrawing Premature Infant Formula From Market
Of course, Ford called for public health officials to take action, emphasizing that the formula is vital for neonatal intensive care units. He criticized the lawsuits, labeling the claims as lacking merit and scientific support.
There is another path, and Ford knows it. If they put an honest warning label on the product, rather than pulling it from the market, they can continue to make money off the product and eliminate any future lawsuits moving forward. It just requires transparency about the risks so parents can make an informed choice.
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.
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.
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 an 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.
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 1, 2023: Study From Emory University Suggests 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.
es 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.
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 an even number 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.
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 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 promoting infant formula products and instead focus on emphasizing the benefits of breastfeeding.
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 that 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.
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 positive development for plaintiffs seeking to avoid active litigation in 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
Historically, there have been three primary types of nutrition for preterm babies:
- parenteral nutrition for feed intolerance (such as a feeding tube),
- human milk (either the mother’s own milk or donor milk), and
- cow’s milk-based formulas and fortifiers. Cow’s milk-based products were once believed to be beneficial for the growth of premature, low-birth-weight babies.
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. This undeniably serious condition 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 reaping substantial profits, the manufacturers of these infant formulas have conveniently overlooked the scientific evidence 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 treating NEC is to stop all oral feedings and initiate an aggressive course of antibiotics for the baby.
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.
What Are Expected NEC Baby Formula Lawsuits Settlement Compensation Amounts?
With two major jury verdicts already on the books, including $60 million in Illinois and $495 million in Missouri, the NEC baby formula litigation has entered a new phase. These are no longer abstract claims where we cannot predict what a jury will do. Juries have now reviewed the evidence and returned strong messages about corporate accountability, finding that Abbott and Mead Johnson continued promoting Similac and Enfamil for premature infants despite longstanding concerns about the risk of NEC.
Families frequently visit our site looking for updates on potential settlements. It is a natural question. The damages in these cases are astronomical and settlement compensation or a jury payout is the only justice you get in civil litigation. So while there is no global settlement yet, the early verdicts have shifted the conversation. These outcomes give real shape to what a successful claim might be worth, and they have also increased the pressure on defendants to resolve claims before facing more juries.
In the real world, you will not see average per person settlement payouts approaching these numbers. But will still think that strong cases should have a settlement in the millions.
Are Necrotizing Enterocolitis (NEC) Baby Formula Lawsuit a Class Action Lawsuit?
NEC baby formula lawsuits are not traditional class actions where a single plaintiff or group of named plaintiffs represents an entire class. Instead, these cases are being handled through a federal multidistrict litigation (MDL) proceeding, which functions like a coordinated mass tort. The MDL, known as MDL 3026, is based in the Northern District of Illinois and centralizes pretrial proceedings for hundreds of NEC lawsuits filed in federal courts across the country.
If you file an NEC baby formula lawsuit in federal court, whether in New York, Texas, California, or any state, it will be transferred to the MDL in Illinois. The goal is to streamline discovery, avoid inconsistent rulings, and facilitate potential settlements or bellwether trials. But even though the cases are consolidated for efficiency, each one thankfully remains an individual lawsuit with its own facts, damages, and outcome.
In parallel with the federal MDL, several significant NEC cases are proceeding in state courts. These include active dockets in Missouri and Illinois, and increasingly, Pennsylvania as well. Plaintiffs often pursue state court claims when they want to keep their cases out of the federal MDL, particularly if they can name in-state defendants like hospitals, which may block removal to federal court under the forum defendant rule or destroy diversity jurisdiction entirely.
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? We will get to that momentarily.
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 further extend the statute of limitations. NEC lawsuits have alleged that, due to misleading marketing and inadequate warnings about the risks of cow’s milk, parents did not know and could not have known of the link between NEC and baby formula from cow’s milk until 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 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 needed 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 harm to newborns. In this situation, damage to 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.