Expert Witnesses Linking Baby Formula and NEC Cleared for Trial, Despite Dismissal of First Bellwether Lawsuit

MDL judge will allow critical experts to testify during upcoming baby formula bellwether trials, but dismissed the first lawsuit set to go before a jury this week, based on case-specific facts.

The U.S. District Judge presiding over all federal baby formula necrotizing enterocolitis (NEC) lawsuits has rejected a motion to exclude the plaintiffs’ expert witnesses from testifying during upcoming early bellwether trials. However, the court did grant the defendants’ motion to dismiss a case that was set to be the first to go before a jury.

The rulings came in advance of the start of the first in a series of bellwether trials, which were expected to get underway this week, to help gauge how juries may respond to certain evidence and testimony likely to be repeated throughout more than 700 Similac lawsuits and Enfamil lawsuits brought throughout the federal court system against Abbott Laboratories and Mead Johnson, respectively.

Each of the claims raise similar allegations, indicating that the manufactures failed to warn families or the medical community about the risk that premature infants may develop NEC after being fed the popular cow’s milk-based formula. 

NEC is a devastating gastrointestinal disease, which occurs when harmful bacteria breaches the walls of the intestines, causing portions of the tissue to become inflamed or die. In many cases, children who contract the condition require emergency surgery while still in the neonatal intensive care unit (NICU) after birth, and many babies do not survive the disease. Those that do often suffer lifelong lawsuits.

Plaintiffs allege that there is overwhelming evidence that cow’s milk-based formulas significantly increase the risk of NEC for premature newborns, claiming that hundreds of children could have avoided severe and often fatal injuries if accurate information had been provided by the baby formula manufacturers.

Given common questions of fact and law raised in claims filed in U.S. District Courts nationwide over the past few years, a baby formula NEC lawsuit MDL (multidistrict litigation) has been established in the Northern District of Illinois, where U.S. Judge Rebecca R. Pallmeyer has been presiding over coordinated pretrial discovery and preparing a small group of “bellwether” cases for early trial dates.

In October 2023, the parties selected four baby formula NEC lawsuit bellwether candidates, which have been going through case-specific discovery and depositions over the past two years to prepare for a series of trials designed to help evaluate the strengths and weaknesses of arguments raised in the litigation.

As part of an effort to end the entire litigation, the baby formula manufacturers filed a pretrial motion asking Judge Pallmeyer to exclude two critical plaintiffs’ expert witnesses, who are expected  to testify before juries about the scientific link between cow’s milk-based formula and NEC risks. If the plaintiffs’ expert witnesses were thrown out, it would leave them unable to prove specific causation in the bellwether cases.

However, Judge Pallmeyer issued a memorandum order (PDF) on May 2, rejecting the defendants’ motions, which clears the bellwether trials to move forward.

First Baby Formula NEC Bellwether Claim Dismissed

On the same day, Judge Pallmeyer also issued a memorandum opinion and order (PDF), dismissing the baby formula NEC lawsuit that was set to be the first bellwether trial, which was scheduled to begin today, involving claims brought by plaintiff Erica Mar, over the death of her child RaiLee Mar.

The claim was selected by the manufacturers, who sought to have the case dismissed based on facts specific to that one claim. Judge Pallmeyer determined that there was insufficient evidence in the case to show that the child’s 5% formula diet caused her NEC.

“Plaintiff has not been able to present evidence of a feasible alternative design to Abbott’s cow’s-milk formula, nor has she been able to demonstrate that Abbott’s alleged failure to warn was the cause-in-fact of RaiLee’s NEC,” Judge Pallmeyer wrote. “For these reasons, the court grants Abbott’s motion for summary judgment.”

As a result of the ruling, today’s trial date was vacated. However, a second case is currently slated to begin on August 11, 2025, with additional trial dates scheduled for November 3, 2025, and February 2, 2026. 

While the outcome of these early trials will not have any binding impact on NEC injury lawsuits being pursued by other families, the average payouts awarded by juries will likely have a substantial impact on the amount that Abbott and Mead Johnson may be required to pay in NEC injury settlements to avoid hundreds of additional claims going before juries.

If the parties fail to resolve the litigation following the federal bellwether trials, Judge Pallmeyer may start remanding dozens of individual claims back to U.S. District Courts nationwide for separate trial dates.