NEC Baby Formula Lawsuits: Updates and Settlements (December 2024)

Two multi-million dollar NEC baby formula jury verdicts are being attacked by tort reform supporters. A jury in Missouri awarded a plaintiff compensatory damages of $95 million and punitive damages of $400 million from Abbott Labs, while an Illinois jury held Mead Johnson responsible for a $60 million verdict.

Rather than addressing the sufficiency of the plaintiffs' legal claims, the reform lobbyist's arguments focus on the trial lawyers' motives. She also points out that formula manufacturers could refuse to make needed formulas as a result of these cases. However, these companies may avoid liability if they warn healthcare providers and parents about the NEC risks involved with premature babies receiving formula, thus allowing them to make the best-informed decisions before using these formulas.

In the meantime, the National Institutes of Health funded a study on preterm babies and the incidence of NEC that was published in JAMA (the Journal of the American Medical Association). All 483 babies in the study were born before 29 weeks gestation and weighed less than 1,000 grams each. Some babies received human breast milk from a donor, and others received baby formula.

The babies who received formula grew slightly faster than the other group, but 9% developed necrotizing enterocolitis (NEC), while only 4.2% of the babies who received human milk experienced NEC. When it comes to extremely preterm babies, it seems consuming human milk reduces the risk of developing NEC as compared to manufactured formula.

The MDL court requested both sides of this litigation to prepare a list of proposed bellwether trials. A bellwether trial is a "test trial" meant to gauge the strength of the evidence and arguments and give an indication of what a jury might do in other cases. Rather than presenting two conflicting lists of potential cases, the parties have agreed on the first four cases to be heard.

After the court hears pre-trial motions, and with both sides reserving the right to request summary judgment on these matters, here are the four lawsuits that are scheduled for bellwether trials next year:

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 Mar claim involves a tragic set of facts. A baby girl was born prematurely, weighing only three pounds. Upon being transferred to the NICU, she was originally fed only her mother's milk. Eventually, she received Similac Special Care 24 (a formula derived from cow's milk) and quickly developed severe NEC symptoms.

Unfortunately, the baby underwent surgery to fix severe damage to her intestines, remove dead tissue (necrosis), and repair a perforation. Sadly, the baby did not survive. In her wrongful death lawsuit, the baby's mother is seeking justice from the baby food maker and claims she had no idea that Similac baby food could cause these devastating problems.

With the addition of 33 more cases in August, the total number of pending lawsuits reached 571.

Recent developments in NEC litigation have drawn significant attention to Missouri, particularly following a major verdict in St. Louis. While much of the legal action has unfolded in state courts and through federal cases within the Illinois MDL, Missouri is now becoming a key battleground.

Philadelphia is also emerging as a critical venue, known for being favorable to plaintiffs seeking justice. Unlike other locations, NEC baby formula lawsuits in Philadelphia remain separate, with no class action consolidating the cases—each is argued individually.

In Philadelphia, a unique strategy by NEC lawyers involves suing hospitals, complicating the defense for manufacturers like Mead Johnson and Abbott. These defendants typically try to present a unified defense, but substantial verdicts could pressure hospitals to distance themselves, potentially blaming the manufacturers for failing to provide adequate warnings.

The first NEC-related trial in Philadelphia is expected to begin next spring.

Mead Johnson has taken steps to move an NEC lawsuit to the MDL in Illinois.

The case involves a plaintiff from Virginia who claims that his premature infant daughter developed NEC and died after consuming Mead Johnson’s formula in 2007. The defendants argue for federal jurisdiction based on diversity of citizenship, as the parties are from different states and the financial stakes exceed $75,000.

Mead also claims that Abbott Laboratories was fraudulently included in the lawsuit to block the case from being moved, noting that there is no evidence the child consumed Abbott’s products. They assert that under Virginia law, which applies to the case, the claims against Abbott have little chance of succeeding.

Whether the case proceeds in Virginia or Illinois, Mead Johnson will likely need to negotiate a fair settlement or prepare for a jury trial.

In the second NEC lawsuit to be tried before a jury, we received resounding proof that Abbot and Mead Johnson face significant exposure going forward, and this may lead to an early resolution of all claims. A St. Louis jury awarded $90 million in compensatory damages and $400 million in punitive damages 

Margo Gill (plaintiff) alleged Abbott Laboratories failed to warn that using infant baby formula Similac could cause a devastating and potentially fatal disease known as necrotizing enterocolitis (NEC) in premature infants. 

NEC results in the degradation and death of bowel tissue and has a fatality rate of between 20-40%. Infants diagnosed with NEC who survive will face a lifetime of medical issues requiring extensive care. There are presently thousands of Similac baby formula lawsuits pending in Missouri, Illinois, and Pennsylvania state courts. Abbot Laboratories faces significant exposure going forward.

This is the second NEC lawsuit to proceed to trial.

In March, a St. Claire County jury in Illinois awarded the parents of a child who developed NEC a sum of $60 million after finding Mead Johnson was negligent for failing to warn the public about the risk of necrotizing enterocolitis (NEC) in premature infants that were fed cow milk-based formula. The jury found that this failure to warn was directly linked to the infant's death.

In the most recent trial against Abbott, Margo Gil's daughter, Robyn Davis, was fed Similac baby formula as a premature infant in a neonatal intensive care unit. Robyn ultimately survived but sustained extremely serious injuries. In fact, she developed irreversible neurological injuries that will require a lifetime of around-the-clock medical care, as she will never be able to take care of herself. 

This is the odd mass tort where state court lawsuits are moving much faster than all the federal NEC lawsuits that have been consolidated in a single jurisdiction before one judge in a process known as multidistrict litigation (MDL). The federal baby formula lawsuits have been consolidated before Judge Mary Rowland in the United States District Court for the Northern District of Illinois. 

Plaintiff lawyers will be presenting their closing argument in the second NEC baby formula lawsuit to be heard by a jury in St. Louis. Lawyers for Margo Gil have alleged their client's daughter was fed Similac baby formula while she was in a neonatal intensive care unit. The plaintiff's daughter was diagnosed with necrotizing enterocolitis (NEC) and suffered irreversible neurological injuries. 

A St. Louis jury has been thoroughly educated about the dangers associated with feeding premature infants cow milk formula rather than human breast milk. We believe this verdict can potentially have huge ramifications for NEC infant formula litigation. If this St. Louis jury returns a large verdict in favor of the plaintiffs, this will only increase the value of the thousands of pending NEC lawsuits in Illinois, Missouri, and Pennsylvania. 

Further, a large verdict will increase advertising by NEC baby formula lawyers seeing new clients. Advertising for NEC lawsuits picked up extensively following the $60 million verdict handed down in March by an Illinois jury against Mead Johnson for their Enfamil baby formula. 

A St. Louis jury is ready to hear opening statements as NEC baby formula lawyers commence the second trial on whether infant formula used by premature infants can cause NEC. This is the first trial against Abbot Laboratories and their product Similac.

In March, an Illinois jury found Mead Johnson was negligent for failing to warn consumers that Enfamil formula could cause NEC. A St. Louis jury will hear from plaintiff lawyers who allege their client's daughter used Similar as a premature baby in a neonatal intensive care unit and was subsequently diagnosed with NEC. Robynn Davis's NEC resulted in permanent neurological injuries that require a lifetime of medical care. A body of scientific research and studies establish the potential dangers associated with feeding cow milk-based formulas to premature infants. In this case, plaintiffs allege that Abbot Laboratories failed to warn consumers and physicians of the dangers associated with Similac infant formula. Sadly, this child developed necrotizing enterocolitis and the destruction of her intestinal tissue.

In the summer of 2024, a consolidated legal action comprising 534 individual claims is underway, addressing the alleged connection between infant formula consumption and necrotizing enterocolitis.

This collective litigation, MDL 3026, is before the United States District Court for the Northern District of Illinois. The Honorable Rebecca Pallmeyer presides over these proceedings, which remain nascent. No monetary compensations have been agreed upon, nor have any juries reached verdicts in these matters.

The MDL over necrotizing enterocolitis (NEC) linked to cow’s milk-based infant formulas is still ongoing, with new cases still being filed. As of June 6, 2024, there are 514 pending NEC baby formula lawsuits in the lawsuit (MDL 3026), which is being presided over by U.S. District Judge Pallmeyer in the Northern District of Illinois.

This litigation is still in its initial stages, and there have been very few court motions, hearings, or big changes so far. There are also no settlements or jury verdicts approved at this point

After experiencing a higher-than-average number of new cases filed in March and April, there has been a recent slowdown in new cases filed. We will have to wait to see what happens in June.

Just to recap, the lawsuits focus on the claims that cow’s milk-based infant formulas, such as those manufactured by Similac and Enfamil, significantly contribute to the development of NEC in infants born prematurely. NEC is a serious gastrointestinal condition that can lead to severe health complications, including necrosis, intestinal perforations, severe infections, and even death. Babies that survive often face long-term complications like intestinal strictures and short-gut syndrome, which profoundly affect their quality of life.

We are optimistic about this MDL since scientific research shows a solid connection between infant formulas containing cow’s milk and an increased risk of NEC in premature infants. Studies show that preterm infants exclusively fed human milk diets have significantly lower chances of developing NEC compared to those who consume cow’s milk.

In late May, a judicial directive was introduced with new protocols for lawsuits involving infant formulas, specifically brands like Similac and Enfamil. Under the new order, plaintiffs must be able to confirm the exact brand of formula that they claim injured their infant through hospital records or by issuing subpoenas.

Key steps outlined in the judicial order include:

• Medical Record Examination: Plaintiffs must review medical and feeding records to prove the specific product was used before starting legal action.
• Targeted Subpoenas: If records are incomplete, the plaintiff's attorney can issue subpoenas to healthcare providers to get necessary information.
• Documentation Submission: Plaintiffs must provide medical records and other relevant documents within a specific time frame. Additionally, if subpoenas are needed, they must be served within 21 to 30 days following the lawsuit’s onset.
• Manufacturer Verification: Plaintiffs may also request sales and contract details from Mead Johnson if records indicate that the formula was used in a hospital or care facility but fail to specify the specific formula or manufacturer. If the investigation finds no evidence of Mead Johnson’s formula being used, plaintiffs must dismiss Mead Johnson from the lawsuit or amend the complaint accordingly.

This order aims to streamline the litigation process by making sure that only credible claims move forward and allows the Court to focus resources on genuine cases with specific evidence.

If your child consumed cow’s milk-based infant formulas and developed NEC, contact a qualified baby formula NEC lawyer and schedule a free consultation.

We presently have 517 lawsuits filed into the MDL. Over 40 were filed in April alone, and State Court dockets in Illinois, Missouri, and Pennsylvania are growing at an even faster rate. The second NEC trial is set for this July in Missouri (another State Court lawsuit).

There are now 469 baby formula lawsuits that have been filed into the MDL centralized in the United States District Court for the Northern District of Illinois. 57 lawsuits have been filed in the past 30 days. We have seen a significant uptick in advertising for NEC formula lawsuits following the $60 million dollar verdict last month in Illinois State Court (St. Clair County).  Further, the State Court dockets in Illinois (Cook County and St. Clair County, St. Louis County (Missouri), and Pennsylvania (Philadelphia Court of Common Pleas)

A St. Clair County jury returned a $60 million verdict in the first NEC baby formula lawsuit to be tried to verdict. The jury found that Mead Johnson (a division of Reckitt Benckiser) failed to warn the public of the risk of necrotizing enterocolitis (NEC)in premature infants exposed to cow milk-based formula. NEC is a disease that is primarily found in premature infants. 

Please note that while this lawsuit comprised the very first NEC baby formula trial, this claim was tried in Illinois State Court as opposed to the multidistrict litigation (MDL) wherein all Federal lawsuits have been consolidated in United States District Court for the Northern District of Illinois before Judge Rebecca Pallmeyer. The underlying product that caused NEC and, ultimately, the death of Jasmine Watson's infant was Enfamil baby formula. Sadly, Jasmine's child was diagnosed with NEC shortly after using Enfamil baby formula. The child underwent emergency surgery and died within weeks of being born.

There are presently active State Court dockets in Illinois, Missouri, California, and Pennsylvania. The next NEC infant formula lawsuit is set to be tried this July in St. Louis. The Illinois State Court docket of NEC infant formula lawsuits has been consolidated in Cook County, St. Clair County, and Madison County. It is rare for a State Court lawsuit to get to trial before a lawsuit that falls within the MDL. 

We believe this jury verdict will send a message to baby formula manufacturers that they knew of the risk cow milk formulas posed to premature infants yet failed to warn the general public or medical professionals who continued using this product in hospitals. Keep in mind that Similac baby formula is also a cow-milk-based formula. 

We also anticipate that a number of baby formula lawsuits will flood State Court dockets in the above referenced States as many lawyers will now seek to keep their case out of the MDL that has been proceeding very slowly. Similac and enamel lawsuits will continue to be filed in State Courts where the case can proceed to trial in a more efficient manner. 

Judge Pallmeyer suggests that she is willing to sit in on depositions in response to NEC baby formula lawyers complaining officers for Mead and Abbott are not acting in compliance. The judge has offered to assist both plaintiff and defense lawyers to ensure compliance during depositions. It appears that Judge Pallmeyer has grown tired of the dilatory tactics utilized by attorneys and witnesses in the infant formula MDL, which is moving much slower than the NEC lawsuits filed in State Court. 

The first NEC baby formula trial is already taking place in Illinois State Court (St. Clair County). Meanwhile the 446 NEC lawsuits pending in the MDL located in United States District Court for the Northern District of Illinois; are still unlikely to see a trial in 2024. Any potential NEC settlement is dependent on the outcome of the present State Court trial and another set for this summer in St. Louis. 

Judge Pallmeyer has narrowed down a list of potential bellwether cases to four NEC lawsuits (each side selected two) that are now being prepared for jury trials. The lawsuits all contain common allegations that premature infants fed cow's milk based formula in neonatal intensive care unit (NICU) developed NEC. Further, the lawsuits allege Mead Johnson and Abbot knew of the risks associated with preterm infants who are fed cow's milk based formula. 

The purpose of bellwether trials is to gauge how juries will respond to scientific evidence linking NEC with infants consuming cow's milk based products. A few large successful verdicts in the bellwether trials could lead to an NEC settlement and the inverse could lead to the dismissal of many baby formula lawsuits. We believe the science in this lawsuit is strong and will illustrate that preterm infants fed Enfamil or Similac have a significantly higher risk of developing NEC.