Court Urged to Establish Process for Selecting Baby Formula NEC Lawsuits For Bellwether Trials

Parties involved in baby formula NEC lawsuits being pursued against the makers of Similac and Enfamil have presented a plan to the U.S. District Judge presiding over the litigation, outlining the process for selecting a group of 12 cases that will be prepared for a series of early bellwether trials.

Similac and Enfamil are cow’s milk infant formula products, which have been widely marketed in recent years to hospitals and families of new borns, including premature babies still in the NICU. However, increasing evidence has found that the baby formula greatly increase the risk of preemies developing a devastating gastrointestinal condition known as NEC, or necrotizing enterocolitis, which results in a painful destruction of the bowel.

More than 100 families throughout the U.S. are now pursuing Similac NEC lawsuit or Enfamil NEC lawsuit against Abbott Laboratories and Mead Johnson, alleging the manufacturers have known for years about the risks associated with use of their products among premature infants. However, as lawyers continue to review and file claims in the coming months and years, it is widely expected that the size of the litigation will increase dramatically, and will likely involve more 1,000 claims.

Given similar questions of fact and law raised in complaints filed in various different U.S. District Courts nationwide, the U.S. Judicial Panel on Multidistrict Litigation (JPML) established coordinated management for all NEC lawsuits against Similac and Enfamil manufacturers in April, requiring that any case filed throughout the federal court system be transferred to U.S. District Judge Rebecca R. Pallmeyer in the Northern District of Illinois for centralized discovery and pretrial proceedings.

As part of the coordinated management of the NEC lawsuits, Judge Pallmeyer has indicated that a “bellwether” program will be established, where small groups of claims will go through case-specific discovery and early trial dates, to help gauge how juries are likely to respond to certain evidence that will be repeated throughout the litigation. However, if the parties fail to resolve the litigation during the MDL proceedings, each individual Similac and Enfamil case may later be returned to various different U.S. District Courts nationwide for separate trial dates.

Proposed Baby Formula NEC Lawsuit Bellwether Selection Plan

In a proposed order (PDF) submitted on August 12, plaintiffs and defendants submitted a joint plan to Judge Pallmeyer, outlining how these first bellwether cases should be selected.

According to the proposed plan, the cases would be chosen from those filed on or before September 16, 2022. By the end of next month, plaintiffs will provide the baby formula makers with a list of four initial bellwether discovery cases, no more than three of which can have Mead Johnson, the makers of Enfamil, as a defendant.

On September 30, the parties will also provide the Court with a list of cases where Abbott, the maker of Similac, is the sole defendant, and a list where Mead Johnson is the sole defendant or a co-defendant with Abbott. They will then provide the court with a computer-generated application to randomly select four additional cases in total from those two lists.

Finally, on or before November 23, 2022, the baby formula manufacturers will submit a list of four more cases, ensuring that the entire list of 12 potential bellwether trials has no more than five cases where Mead Johnson is a defendant.

After fact discovery has been completed on the dozen initial bellwether discovery cases, each party will identify two cases to serve as initial bellwether trial cases, for a total of four claims that will be eligible to go before juries.

The Court will later determine the order in which the cases will be tried, setting the cases about 12 weeks apart, according to the proposed plan.

Although the outcome of these early bellwether trials will not have any binding impact on other claims, they are expected to have a substantial impact on any baby formula NEC settlements the manufacturers may offer to avoid the need for each individual case to be remanded back to U.S. District Courts nationwide for separate trial dates in the future.