Infant Formula NEC Lawsuits Remanded Back to Pennsylvania State Court by MDL Judge

The remanded cases all involve lawsuits claims against local hospitals who fed Similac, Enfamil or another cow’s milk-based formula to preterm children, who subsequently developed NEC

The U.S. District Judge presiding over all infant formula necrotizing enterocolitis (NEC) lawsuits has remanded nearly 30 cases back to state court in Pennsylvania, because those complaints also include claims against local hospitals as defendants, for feeding Similac, Enfamil or other cow’s milk formula to preterm babies.

Hundreds of families throughout the U.S. are now pursuing a Similac NEC lawsuit against Abbott Laboratories or Enfamil NEC lawsuit against Mead Johnson, each raising similar allegations that the formula manufacturers recklessly marketed their cow’s milk baby formula for use among premature infants, without disclosing the risk that it may lead to a devastating and life-threatening gastrointestinal disease.

Similac and Enfamil have been promoted to hospitals, doctors and families of premature infants as a safe and effective alternative to breast milk, despite a growing body of research which has found the cow’s milk formula substantially increases the risk that preemies will develop NEC, which involves a painful destruction of the bowels that results in the need for emergency surgery while the baby is still in the NICU and often leads to death.

Given similar questions of fact and law raised in NEC lawsuits filed in various different U.S. District Courts nationwide, the U.S. Judicial Panel on Multidistrict Litigation (JPML) established coordinated management for cases earlier this year, centralizing the claims before U.S. District Judge Rebecca R. Pallmeyer in the Northern District of Illinois for centralized discovery and pretrial proceedings.

In a Memorandum Opinion and Order (PDF) issued on October 12, Judge Pallmeyer granted a motion to remand 29 infant formula NEC lawsuits originally filed by Pennsylvania residents back to state courts, and remove the claims from the multidistrict litigation.

Each of the claims included Pennsylvania hospitals as defendants, including allegations that the medical providers were jointly responsible for the decision to feed Similac, Enfamil or other cow’s milk formula to premature infants. Although the claims were filed in Pennsylvania state court, with a local Pennsylvania-based hospital named as a defendant, the formula manufacturers removed the claims to the federal court system where they were transferred to the MDL pending before Judge Pallmeyer.

Abbott Laboratories, which manufactures Similac, objected to the remand, arguing that the local hospitals fradulently joined as defendants, for the sole purpose of keeping claims against the out-of-state formula manufacturers in the Pennsylvania state court system.

Although the manufacturer argued that plaintiffs had little chance of prevailing in the NEC lawsuits against the hospitals, Judge Pallmeyer indicated that plaintiffs had a reasonable enough possibility of prevailing to require that the cases be returned back to the state court system.

“After reviewing the party’s supplemental briefing, the court now concludes that Abbott has not established that Plantiffs lack any reasonable possibility of prevailing on their claims against the Hospital Defendants,” Judge Pallmeyer wrote. “Plaintiffs’ motions to remand are granted.”

October 2022 Infant Formula NEC Lawsuit Update

There are currently more than 100 lawsuits pending before Judge Pallmeyer involving claims brought by families nationwide against the makers of Similac and Enfamil. However, as additional claims are filed over the coming years, it is ultimately expected that more than 1,000 will eventually be included in the litigation.

To help the parties gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the NEC litigation, Judge Pallmeyer has established a “bellwether” program, where a small group of lawsuits will go through case-specific discovery and be scheduled for early trial dates.

Following the the bellwether trials, if the parties fail to negotiate NEC lawsuit payouts to settle claims, 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 nationwide throughout the federal court system.