NEC Baby Formula Lawsuit Legal Updates 2023

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Researcher: Ariana Arce​

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Journalist: Aaron Vivanco

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Editor: Daniela Polo

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NEC Baby Formula Lawsuit Legal Updates 2023

The NEC baby formula lawsuit originated when parents of premature infants found that their children had developed necrotizing enterocolitis (NEC). The primary allegation is that Mead Johnson and Abbott, the manufacturers of Enfamil and Similac baby formula products, respectively, did not adequately inform consumers about the risk of NEC.

Premature newborn babies have thinner intestinal walls, making it more susceptible for bacteria to infiltrate the intestines and potentially lead to infections or diseases like NEC. Cow milk-based formula may not contain all the necessary probiotics required for the proper growth of premature infants. Human breast milk-based products generally provide a relatively higher level of overall nutrition.

The cases are currently being consolidated in multidistrict litigation (MDL) in the Northern District of Illinois “MDL 3026.In Re: Abbott Laboratories, et al., Preterm Infant Nutrition Products Liability Litigation.”

If you or a family member has been impacted by these products, you may be eligible to file an NEC baby formula lawsuit seeking financial compensation for medical expenses. You should consult a legal team to determine the legitimacy of your claim.

Mother making baby formula in milk bottle for a newborn baby feed, handheld footage.

According to The National Instituteof Child Health (NICHD):

  • 480,000 infants are born preterm each year in the United States.
  • Approximately 90% of infants diagnosed with NEC are born prematurely, according to estimates.
  • Themortalityrateof NEC is 20-40 %.
  • Of those who survive, approximately 25% develop long-term sequelae.

2023 Toxic Baby Formula Lawsuit

 October 2023:

After the latest status conference in the NEC infant formula MDL, the Judge approved the plaintiffs’ motion to extend the deadline for choosing bellwether cases for the initial round of test trials. There is a possibility that the first bellwether trials may occur in the latter part of the coming year.

September 2023:

83 new cases were added to the NEC infant formula class action MDL, bringing the total to 263 active cases.

In the NEC class action lawsuit, plaintiff lawyers are frustrated with defendants Abbott and Mead for not conducting crucial treating doctor depositions. These doctors are vital witnesses in potential failure-to-warn cases. The frustration stems from the defendants’ desire for the first NEC jury trial to be in federal, not state, court in Illinois.

To address this dispute, the plaintiffs have filed a motion to delay the bellwether case selection until December and extend fact discovery until March 2024. The court has responded by instructing both parties to collaborate on an updated discovery timetable, with further discussions planned in a future status conference.

August 2023:

In the Rowe v. Abbott NEC wrongful death case, a premature baby in Maricopa County, Arizona, developed NEC after receiving Abbott’s cow milk-based formula in the NICU, leading to a tragic outcome. The plaintiff, the child’s father, asserts that Abbott should have provided clearer warnings for their cow-based milk products intended for preterm infants. The NEC premie formula class action has doubled in size this year, with 14 new cases last month, now totaling 205 pending cases. If this trend continues, there may be around 300 cases by year-end and possibly 400 by the start of the first bellwether trials.

July 2023:

The judge granted parents the chance to amend their complaint, potentially sparking a second legal dispute. Plaintiffs argue the two-year submission period should start when they discovered formula-related issues, supported by legal precedent and common-sense justice. While no statute of limitations issue exists (children can sue until age 18), exceptions, like the discovery rule, may lead to legal conflicts.

In the MDL, the case of Anonymous v. Mead Johnson involves a 2003-born prematurely infant named Adam. After consuming cow milk-based Enfamil formula, he developed NEC, underwent emergency surgery, and faces lasting health issues. Initially filed in Indiana federal court, this case recently moved to the MDL NEC class action lawsuit.

June 2023:

The NEC infant formula class action now boasts 180 active plaintiffs, with 14 new cases added in the past month. Since the beginning of the year, a total of 83 new cases have been transferred into the MDL.

May 2023:
The U.S. Federal Trade Commission (FTC) investigates baby formula manufacturers, including Abbott, for possible collusion in WIC program contracts amid a dispute over a formula shortage. Economic loss claims linked to contaminated Similac formula were dismissed, but personal injury claims, especially in NEC formula lawsuits, continue. E-discovery and disputes over witness limits and custodians are key aspects of this mass tort litigation.

April 2023:

In the NEC formula MDL, 12 candidate cases are in fact discovery, the first to head to trial. After this, four will be selected for bellwether trials set for about a year from now.

In the last month, 35 new cases were added to the NEC class action lawsuit, the highest monthly increase. This brings the total pending cases to 157, possibly leading to the first bellwether trial next year.

March 2023:
In the infant formula NEC class action MDL, 17 new cases were added in the past month, bringing the total to 122 plaintiffs, the second-highest monthly increase since the MDL’s start.

A recent study found no significant difference in NEC rates between preterm infants given an exclusive human milk diet and those given bovine milk formula. This aligns with the American Academy of Pediatrics’ recommendation for preterm infants to receive human milk. This suggests alternatives to Similac and Enfamil may pose lower NEC risks.

February 2023

The number of pending cases went up to 97 at the beginning of 2023.

Why did the number of claims not increase as expected?

  • Cases have stayed in the state court, which means they did not get transferred to the MDL.
  • They have been remanded back to state court based on lack of diversity jurisdiction.

However, this is thought of as a small litigation, as there are not many plaintiffs. In consequence, the settlement talks should be undemanding in the future.

2022 Evolution of the NEC Baby Formula Lawsuit in the legal system

The MDL 3026 reported 122 active NEC baby formula cases as of March 2023. We will review the evolution of this lawsuit in the legal system in our next article.

December 2022

A total of 88 NEC baby formula cases were filed by the end of 2022. Additionally, Chief Judge Rebecca R. Pallmeyer received the proposed trial schedule from plaintiffs’ lawyers.

Before this, 8 cases were selected to be in the bellwether program in November, with 4 cases pending to be elected by the defense. Then, the judge approved the fact-sheet questionnaire form that each plaintiff in the bellwether cases will have to fill out as part of the discovery process.

October 2022

The lawyers from both parties involved in the MDL delivered a list of 66 pending cases to be considered. The court needed this list to pick the first NEC baby formula lawsuit to go to trial.

August 2022

Plans for the bellwether trial selection began in August 2022. The parties prepared for this moment while preparing a list of 12 lawsuits that could reach the trial phase. Of these, 4 cases will be picked (2 by the plaintiff side and 2 by the defendant side) to become the bellwether trials.

July 2022

An average of 30 cases are filed each month, although they do not go directly to the MDL. However, plaintiffs will now be able to file lawsuits directly in the Northern District of Illinois rather than in their home state.

June 2022

A total of 89 plaintiffs have filed lawsuits against Abbott and Mead Johnson, the manufacturers of Similac and Enfamil, respectively. At this point, the judge in charge of the MDL held the opening status conference and selected the members of the Plaintiffs’ Steering Committee liaison counsel, and leadership committee.

In addition to the lawsuits, The New York Times stated that the Food and Drug Administration (FDA) found Abbott’s baby formula plant in poor condition. “It had a leaking roof, water pooled on the floor and cracks in key production equipment that allowed bacteria to get in and persist,” said Dr. Robert Califf, the head of the FDA.

May 2022

Three class action lawsuits related to NEC Baby Formula cases were filed by the end of May 2022. The first is the NEC Baby Formula MDL (MDL 3026), followed by a class action in the Illinois state court and the Similac Recall class action.

April 2022

The NEC baby formula lawsuit was settled on April 8 2022, under the supervision of Judge Rebecca R. Pallmeyer, Chief Judge of the Northern District of Illinois. The Judicial Panel on Multidistrict Litigation (JPML) decided to consolidate all the pending lawsuits in this new mass tort.

February 2022

The FDA announced a massive recall of Similac products with health risks for children. The government investigated complaints about bacterial infections from the baby formula produced by Abbott. “All four infants had to be hospitalized and the bacterial infection may have contributed to death in two patients,” stated the report.

January 2022

Abbott asked the JPML to consolidate all the NEC baby formula cases in the District of Connecticut, against the desire of the plaintiffs’ lawyers.

December 2021

The plaintiffs’ lawyers asked the Illinois Supreme Court to finally decide to consolidate all the NEC lawsuits in a Mass Tort MDL.

January 2020

Parents of premature babies who suffered from NEC started suing Abbott and Mead Johnson, as they correlated the baby formula made by these two companies with their children’s condition.

Prior to these facts, the legal trace can go back to September 2012, when a family received compensation because their baby could not fight NEC as it was heightened by the Similac Advance formula.

As a consequence, both Abbott and Mead Johnson had to make changes in the production of their baby formula. However, these efforts were inadequate.

Therefore, if you or a family member has been affected by these products, do reach out and get a free consultation to see if you qualify for an NEC baby formula lawsuit.