Fact Discovery in Infant Formula NEC Lawsuits Extended Over Two Months, To June 28, 2024

Quarterly mediation sessions for the selection of bellwether trials could help lay the groundwork for infant formula NEC lawsuit settlements.

The U.S. District Judge presiding over all infant formula necrotizing enterocolitis (NEC) lawsuits pending in the federal court system has agreed to give the parties two more months to finish fact discovery for the first batch of cases being prepared for early trial dates.

Necrotizing enterocolitis (NEC) is a devastating gastrointestinal disease, which primarily impacts premature babies, occurring when harmful bacteria breaches the walls of the intestines, causing portions of the tissue to become inflamed or die. The condition often results in the need for emergency surgery while the baby is still in the NICU, and many infants do not survive.

Amid growing evidence that cow’s milk-based infant formula products dramatically increase the risk of NEC for preemies, several hundred families nationwide are now pursuing Similac lawsuits and Enfamil lawsuits against Abbott Laboratories and Mead Johnson, alleging that the manufacturers placed their desire for profits before consumers safety, by failing to warn families and the medical communities about the increased risks compared to use of human milk.

In the federal court system, an infant formula lawsuit MDL (multidistrict litigation) was established in 2022, centralizing all claims that NEC was caused by Similac or Enfamil before U.S. District Judge Rebecca R. Pallmeyer in the Northern District of Illinois for coordinated discovery and pretrial proceedings.

As part of the management of the litigation, Judge Pallmeyer has established a “bellwether” program, where a group of 12 NEC lawsuits brought against the two infant formula manufacturers are going through case-specific discovery, and will be prepared for a series of early trial dates that are designed help gauge how juries will respond to certain evidence and testimony that will be repeated throughout the litigation.

Fact Discovery Extended for Infant Formula NEC Lawsuits

General fact discovery on the first cases selected for potential bellwether trials was scheduled to be completed by April 15. After which, the parties were supposed to provide the judge with a list of cases they thought were most representative of the litigation as a whole.

However, on February 15 the parties sent Judge Pallmeyer a proposed revised schedule (PDF), indicating that plaintiffs sought additional time for general fact discovery, and case-specific bellwether fact discovery.

The proposed revised schedule indicates plaintiffs and defendants negotiated to create a new schedule both parties could agree to, extending the close of fact discovery two more months, until June 28, 2024.

The following day, Judge Pallmeyer issued a court order (PDF) granting the extension. Now, the parties have until July 19 to turn in their positions on the representativeness of the bellwether cases, with deposition of experts running from October 11 to December 13. The parties will have until January 10, 2025, to submit summary judgment or Daubert motions, and a final pretrial conference will be held on March 24, 2025.

In addition, the judge indicates the parties must enter into court-ordered mediation trial selections starting quarterly this year, which may also lay the groundwork for negotiating an agreement that would settle all claims pending against the two manufacturers.

Following the early trial dates, if the parties fail to negotiate infant formula NEC lawsuit settlements, it is then likely that Judge Pallmeyer will start remanding dozens of individual claims back to U.S. District Courts nationwide for separate trial dates.