Recently, studies have emerged showing a link between specific brands of cow-based baby formula and a potentially life-threatening health condition in premature infants. If your premature baby developed Necrotizing Enterocolitis (NEC) after ingesting cow milk-based formulas from Similac or Enfamil, you could have a product liability case and a wrongful death case.

Necrotizing enterocolitis is a serious and sometimes fatal illness that primarily affects babies who are born prematurely. NEC develops when otherwise healthy tissue in a baby’s colon becomes inflamed and damaged, often due to bacterial infections.

Causes

A significant risk factor for NEC is breast milk or formula. Premature infants who are fed either Enfamil or Similac cow’s milk formulas are at a heightened risk for developing NEC. Bacteria found in these types of formulas is thought to be one cause of NEC.

Status of Similac & Enfamil Baby Formula Lawsuits

Litigations involving Similac and the increased NEC risks in premature babies are still in their early stages. More parents are filing new Similac lawsuits against Abbott Laboratories in courts every day. The case mainly asserts that product liability claims against Abbott are based on strict product liability and negligent failure to warn the public of NEC risks.

September 26, 2022 UPDATE on NEC Lawsuits

Judge Pallmeyer has issued an order as of September 7, 2022, laying out the protocol for the selection of baby formula bellwether trials.  NEC lawsuits filed before September 15, 2022, are eligible to be selected as a bellwether trial.  The plaintiff steering committee has until September 30, 2022, to select four cases, and one must name Mead Johnson as a defendant.  Judge Pallmeyer will randomly select four cases, with one naming Mead Johnson as the defendant by the exact same date.  The defense has until November 23, 2022, to submit its four cases.  Again, one of the four cases must name Mead Johnson as a defendant.

Plaintiffs and defendants will then conduct fact discovery.  Within two weeks of completing fact discovery on the twelve cases, both the plaintiffs and defense must select two cases each for the bellwether trial.  Judge Pallmeyer will then select which case will be tried as the first NEC baby formula bellwether trial. There are over 115 NEC lawsuits pending in the Northern District of Illinois before Judge Pallmeyer.

Keep in mind that the outcome of one bellwether trial has no binding impact on any other lawsuit. However, the outcome of several bellwether trials will enable the plaintiffs and defendants to better gauge the value of these cases and how juries view the science.

Bellwether trials play a very large role in the timing and mechanism of settlement. In fact, the bellwether trials can convince the manufacturer defendants that they are facing significant financial exposure by continuing to defend baby formula lawsuits through trial. In turn, if the defendants should prevail on multiple occasions, the plaintiffs may opt to resolve their claims for less than initially anticipated.

In previous mass torts, we have seen bellwether trials force one side or the other to come to terms with the weaknesses in their respective cases. Further, in several recent mass torts, large newsworthy bellwether trial verdicts received significant attention from the media. This caused shareholders of these publicly traded companies to panic resulting in quick settlements.