First Bellwether Trials Over NEC Caused by Baby Formula Currently Being Decided

First Bellwether Trials Over NEC Caused by Baby Formula Currently Being Decided

Studies have found that some baby formula made out of cow milk can cause necrotizing enterocolitis (NEC), which is an intestinal disease that causes the intestine to no longer hold waste. This can cause bacteria to pass into the bloodstream and possibly cause life-threatening consequences.

Many parents of premature babies have filed product liability lawsuits against the manufacturers of Similac and Enfamil for failing to warn of the potentially life-threatening consequences of their baby formula. These NEC baby formula lawsuits have consolidated into multidistrict litigation (MDL), with bellwether trials on the way. These are test trials of a small group of lawsuits meant to see how juries will respond to evidence.

What is Necrotizing Enterocolitis (NEC)?

The baby formula manufacturers Abbott Laboratories, which manufactured Similac, and Mead Johnson, which manufactured Enfamil, have been held liable in product liability lawsuits for their baby formula causing severe illness. Some premature babies have suffered from necrotizing enterocolitis (NEC) due to the use of cow-based baby formula manufactured by Abbott Laboratories and Mead Johnson.

NEC is a severe intestinal disease that results from tissue in the small or large intestine becoming injured or inflamed. Without the ability to hold waste, bacteria can pass into the bloodstream and cause a deadly infection that can result in wrongful death. Babies born before 32 weeks of gestation or that have severe health problems are a risk of suffering NEC from baby formula.

The following are some of the symptoms of NEC:

  • Swollen belly
  • Constipation
  • Diarrhea
  • Low body temperature
  • Feeding problems
  • Lethargy
  • Green vomit
  • Apnea
  • Slowed heart rate
  • Low blood pressure

What Infant Formula Products Have Been Connected to NEC?

Premature babies that have used baby formula products from the brands Similac and Enfamil have been reported for having suffered from NEC. Although NEC can naturally occur in premature infants and babies with severe health conditions, there has been a connection made between these products and babies developing NEC.

The following are some of the Similac and Enfamil products connected to NEC:

  • Similac Special Care
  • Similac Human Milk Fortifier
  • Similac Alimentum
  • Similac Alimentum Expert Care
  • Similac Human Milk Fortifier Concentrated Liquid
  • Similac Human Milk Fortifier Powder
  • Similac NeoSure
  • Enfamil Premature 20 Cal
  • Enfamil Premature 24 Cal
  • Enfamil Premature 24 Cal/fl oz HP
  • Enfamil Premature 30 Cal
  • Enfamil Human Milk Fortifier Acidified Liquid
  • Enfamil Human Milk Fortifier Powder

Lawsuits Filed Over Necrotizing Enterocolitis Caused by Baby Formula

The connection between cow-based baby formulas, like Similac and Enfamil, and NEC is still unknown. However, that has not stopped many parents from filing product liability lawsuits against manufacturers for damages caused by baby formula. Product liability claims are filed to hold product manufacturers liable for damages caused by a defective or dangerous product.

Victims of a defective or dangerous product can file a product liability lawsuit if:

  • The product has a design defect
  • The product has a manufacturing defect
  • The manufacturers of the product failed to warn consumers of the potential for harm

In the case of the baby formula lawsuits, parents allege that manufacturers, such as Abbott Laboratories and Mead Johnson, should have known that their baby formula can cause NEC in premature babies. The component of cow’s milk used in their baby formula, bovine spongiform encephalopathy (BSE), has been connected to NEC, sepsis, and other health conditions for premature babies. Their failure to warn the public of the dangers of their products, as well as their marketing of the baby formula as safe, served as the basis of the product liability lawsuits.

The NEC Baby Formula Lawsuits Have Been Consolidated into an MDL

Both Abbott Laboratories and Mead Johnson contested the claim that their baby formula products cause NEC, claiming the disease occurs naturally. In March of 2022, they filed a motion to have all 80 NEC infant formula lawsuits consolidated in front of one judge as multidistrict litigation (MDL).

An MDL allows all lawsuits in a mass tort to be seen under one judge, which helps to add consistency to the discovery process and streamline litigation. As of April 2022, all NEC baby formula lawsuits were consolidated into an MDL before Chief Judge Rebecca Pallmeyer of the Northern District of Illinois.

What is a Bellwether Trial?

In mass torts, there may come the point where bellwether trials become necessary. These are test trials involving a small number of plaintiffs in a mass tort where both sides can see how a real trial may go when a jury receives the evidence. 

For the plaintiffs, bellwether trials allow them to see how juries respond to certain evidence and determine what evidence would be the best to focus on should the real lawsuit move to Court. For the defendants, it allows them to see whether the evidence presented by the plaintiffs can stand up in front of a jury. These test trials allow both sides to see how future litigation may go, which can expedite a settlement if one side comes out of the bellwether trials unconfident of their chances.

Updates on the NEC Baby Formula MDL’s First Bellwether Trials

The NEC baby formula MDL currently stands at the bellwether trial phase, with Judge Pallmeyer identifying eight out of the twelve bellwether cases eligible for trial dates. The plaintiffs selected four cases that would go through an early bellwether trial, and both sides agreed upon 66 cases that would be subject to random selection by the Court.

With the four randomly selected cases and the four cases selected by the plaintiffs ready to go, the defendants have until November 23rd to select the last four cases that will go through the bellwether trials. After all twelve cases are selected, both parties will conduct depositions and discovery for each case.

The group will be reduced to four claims (two for both the plaintiffs and defendants). The two cases each party decides upon must be disclosed within 14 days of the end of discovery, with a three-page submission that explains the order of when each case should be tried. Judge Pallmeyer will determine the bellwether trial schedule, with a case going before a jury every 12 weeks.


Matthew Dolman

Personal Injury Lawyer

This article was written and reviewed by Matthew Dolman. Matt has been a practicing civil trial, personal injury, products liability, and mass tort lawyer since 2004. He has represented over 11,000 injury victims and has served as lead counsel in over 1000 lawsuits. Matt is a lifetime member of the Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum for resolving individual cases in excess of $1 million and $2 million, respectively. He has also been selected by his colleagues as a Florida Superlawyer and as a member of Florida’s Legal Elite on multiple occasions. Further, Matt has been quoted in the media numerous times and is a sought-after speaker on a variety of legal issues and topics.

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