Abbott Laboratories Requests MDL For Lawsuits Over Similac and NEC Among Preterm Babies

Lawsuits raise similar allegations that Abbott failed to warn that Similac causes NEC among preterm babies at substantially higher rates than breast milk

With a growing number of families nationwide pursuing Similac lawsuits against Abbott Laboratories, alleging that the cow’s milk formula caused premature babies to develop necrotizing enterocolitis (NEC), the manufacturer has filed a motion to consolidate the federal cases as part of a multidistrict litigation (MDL).

Abbott Laboratories currently faces at least 17 lawsuits over Similac in the federal court system, which are spread across eight different U.S. District Courts. However, as more families learn about the link between Similac baby formula and NEC, it is expected that hundreds, if not thousands, of additional claims will be brought in the coming months.

In a motion to transfer (PDF) filed with the U.S. Judicial Panel on Multidistrict Litigation (JPML) filed on Tuesday, Abbott asked that all cases brought throughout the federal court system be consolidated before U.S. District Judge Stefan R. Underhill in the District of Connecticut, for coordinated discovery and pretrial proceedings.

Such consolidation is common in complex product liability lawsuits, where large numbers of cases are brought before different judges that involve similar injuries caused by the same product.

Abbott Laboratories indicates in the filing that the pace of new lawsuits over Similac and NEC is accelerating, with national advertising campaigns being run by lawyers nationwide. As a result, the baby formula manufacturer argues that it is necessary and appropriate to centralize the cases in an MDL to reduce duplicative discovery and avoid litigating materially similar issues before multiple different judges.

“These actions involve a significant number of overlapping factual allegations and legal claims,” according to the motion. “For example, all of the cases include claims (which Abbott strongly denies) that Abbott had a duty to warn that is products placed infants at risk of NEC, that Abbott’s products were unreasonably dangerous, and that those products were in fact responsible for NEC of the infants at issue. Allowing them to proceed separately through the pretrial process would create significant risk of inconsistent pretrial rulings on a wide range of issues that could directly lead to inconsistent outcomes. Centralization would prevent such inconsistency.”

Similac and Enfamil Litigation Over NEC

Necrotizing enterocolitis (NEC) is a devastating disease that mostly impacts preterm infants, where the wall of the intestine is invaded by bacteria, leading to destruction of the bowel and often requiring emergency surgery while the baby is still in the NICU. This can leave the infant with severe and life-changing injuries, as well as a substantial risk of premature death.

Over the past few decades, a number of studies have established that cow’s milk formula like Similac, as well as it’s primary competitor Enfamil, cause NEC at at substantially higher rates than is seen among premature babies fed breast milk or donor milk alone. However, the lawsuits maintains that Abbott Laboratories failed to provide adequate warnings or instructions about the risk, and specifically promoted the formula for use among preterm infants.

Similar allegations have also been raised in a number of Enfamil NEC lawsuits filed against Mead Johnson, and many of the claims have been brought against both companies for babies who received both products.

In addition to claims brought in the federal court system, Abbott indicates that dozens of lawsuits over Similac have been brought in the state courts of Illinois, where the company’s U.S. headquarters are based. Plaintiffs have already moved the Illinois Supreme Court to establish similar consolidation for the Similac litigation at the state court level, and Abbott maintains that it is now appropriate to centralize the pretrial proceedings in the federal courts.

Abbott has proposed that U.S. District Judge Underhill in Connecticut is the most appropriate to preside over the Similac litigation, since the first cases were brought in his court, and he has the most familiarity with the subject matter at issue in the cases, having already ruled on several issues.

Plaintiffs are expected to file responses to motion in the coming weeks, and may propose alternate venues to manage any Similac MDL that is formed.

It is likely that the U.S. JPML will consider oral arguments on the motion during an upcoming hearing session in March 2022.