Nine Lawsuits Over Recalled Similac Formula Selected for Initial Bellwether Trial Discovery

With dozens of Similac recall lawsuits being pursued against Abbott Laboratories, each involving similar allegations that infants developed severe and sometimes fatal infections after being fed recalled infant formula products, a group of nine representative cases have been selected for a bellwether process, which is designed to gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation.

The claims stem from a massive Alimentum, Elecare and Similac formula recall issued in February 2022, following the discovery that powdered products manufactured at a Michigan facility were contaminated with Salmonella Newport and Cronobacter sakazakii bacteria.

At least two infant deaths and hundreds of illnesses were reported by parents who fed the contaminated baby formula to their children, and subsequent investigations have revealed Abbott ignored industry safety standards and best practices at its facility for years, endangering infants for the sake of profits.

There are currently at least 80 product liability claims filed throughout the federal court system, but it is ultimately expected that hundreds of additional lawsuits will be filed over the next few years, each seeking to hold Abbott Laboratories responsible for injuries caused by a failure to keep its manufacturing facility properly sanitized.

Given common questions of fact and law raised in the complaints, the U.S. Judicial Panel on Multidistrict Litigation (JPML) established coordinated pretrial proceedings for all lawsuits over recalled Similac formula in August 2022, centralizing the claims before U.S. District Judge Matthew F. Kennelly in the Northern District of Illinois.

Recalled Similac Lawsuit Bellwether Trial Selections

To help the parties evaluate the strengths and weaknesses of claims, Judge Kennelly has established a Similac lawsuit bellwether trial process, where the parties will focus on preparing a small number of representative claims to go before juries.

In late summer, he directed plaintiffs and defendants to select five cases each to serve as the initial bellwether discovery pool. Each side was directed to choose at least one cronobacter case, two salmonella diagnosis claims, at least one meningitis injury, and the fifth case could be for any diagnosis of their choosing.

In a case management order (PDF) issued on November 9, Judge Kennelly identified nine lawsuits selected to serve as the initial bellwether discovery cases. While both sides chose five cases each, there was at least one overlap, in which case the judge had earlier stipulated that they would proceed with only nine.

The lawsuits chosen as representative cases include a salmonella food poisoning lawsuit filed by Gabrielle Arispe (PDF), of Louisiana, in early March. Arispe, indicates her child suffered bloody diarrhea, fever, vomiting, a urinary tract infection, and sepsis due to a salmonella infection caused by the recalled Similac products.

Another Similac salmonella food poisoning lawsuit chosen for the initial bellwether pool was filed by Jenna Gaeta (PDF) of North Carolina in October 2022. According to her claim, her daughter was diagnosed with a Salmonella Newport infection which has been traced back to the recalled Similac products, requiring hospitalization and suffering permanent injuries.

A complaint filed by Jane Hernandez (PDF), of Texas, in June of last year tells a similar story, except her child was diagnosed with Cronobacter Sakazakii. The lawsuit notes that Similac was the child’s sole source of nutrition from the time he was born until the time of his illness.

Judge Kennelly previously ordered that the discovery process would begin promptly on the nine bellwether discovery lawsuits in a case management order (PDF) issued in August. The Phase I discovery period will last 150 days from the publication of the initial bellwether case list.

Following that discovery phase, each side will submit to the court a list of five cases which they believe should serve as representative bellwether trials. Judge Kennelly has called for those lists to be submitted to the Court by March 25, 2024. The selection of the final bellwether cases and first trial dates have not yet been announced.

While the outcome of these bellwether trials will not be binding on other cases, they will likely have a big impact on the average Similac recall settlement amounts the manufacturer may have to pay to avoid dozens of individual claims being set for trial in the coming years.

Similac and Enfamil NEC Lawsuits

A similar process has been established in a separate federal MDL established for all Similac lawsuits over NEC (necrotizing enterocolitis) diagnosed among premature infants fed the cow’s milk-based infant formula.

Dozens of Similac NEC lawsuits and Enfamil NEC lawsuits have been centralized before U.S. District Judge Rebecca R. Pallmeyer, as part of a separate consolidated pretrial proceeding.

Each of those complaints present failure to warn claims against Abbott and Mead Johnson, the manufacturer of the competing cow’s milk-based formula Enfamil, indicating that the companies knew that premature infants faced an increased risk of NEC from their formula, yet false and misleading information has been provided to families and the medical community.