MDL Judge Sets Order of Baby Formula NEC Lawsuits for First Four Bellwether Trials

Specific starting dates for each of the first four baby formula NEC lawsuit bellwether trials in the federal MDL will be set at a future status conference.

The U.S. District Judge presiding over all baby formula necrotizing enterocolitis (NEC) lawsuits filed against the makers of Similac and Enfamil in the federal court system has announced the order in which the first four bellwether cases will go before juries, though she has yet to schedule firm dates when each of the trials will begin.

The claims present similar allegations to those repeated throughout more than 600 product liability lawsuits currently pending against the makers of Similac and Enfamil, which have been brought by families of premature infants diagnosed with NEC, which is a devastating gastrointestinal disease caused when harmful bacteria breaches the walls of the intestines, causing portions of the tissue to become inflamed or die.

The Similac lawsuits and Enfamil lawsuits indicate that the manufacturers withheld critical information from families and the medical community about the risk of NEC when premature infants are fed the cow’s milk-based formulas. In many of the cases children required emergency surgery while still in the neonatal intensive care unit (NICU) after birth, and many of the babies did not survive NEC.

Although versions of Similac and Enfamil baby formula products have been specifically marketed for use among premies over the past few decades, there is now increasing evidence that cow’s milk formula dramatically raises NEC risks among the vulnerable newborns. Families allege their children could have avoided severe and often fatal injuries if accurate information had been provided about the increased risks compared to the use of human breast milk.

Given common questions of fact and law raised in the claims, all baby formula NEC lawsuits have been centralized as part of a federal MDL (multidistrict litigation)  in the Northern District of Illinois since 2022, where U.S. District Judge Rebecca R. Pallmeyer has been presiding over coordinated discovery and pretrial proceedings.

As part of the management of the litigation, Judge Pallmeyer previously established a “bellwether” program, where a group of representative claims have been selected for a series of early trial dates, which are designed to help the parties gauge how juries will respond to certain evidence and testimony that will be repeated throughout the litigation.

The four baby formula NEC lawsuit bellwether candidates were selected in October 2023, and the parties have been preparing each of the claims for trial over the past year. However, the order in which the claims may go before juries was previously unknown.

Baby Formula NEC Lawsuit Bellwether Trial Selections

On September 12, 2024, Judge Pallmeyer issued a Notification of Docket Entry (PDF) detailing the order in which the cases will go to trial.

The first claim selected to go to trial was filed against Abbott Laboratories by Ericka Mar (PDF) of Kentucky, who says her prematurely born daughter, RaiLee, died due to NEC complications after being fed Similac while in the NICU. She was only 15 days old at the time of her death.

The second case selected to go to trial was filed by Keosha Diggs (PDF) of Maryland, presenting claims against both Abbott Laboratories and Mead Johnson, which manufactures the competing Enfamil baby formula. The lawsuit was originally filed in September 2022, indicating that Diggs’ son survived NEC after being fed Similac and Enfamil shortly after birth, but has been left with severe complications and had to undergo life-saving surgeries that will likely continue to cause long-term health problems for the rest of his life.

After those two trials, Judge Pallmeyer indicates that a lawsuit filed by Rebekah Etienne and Deondrick Brown, Sr. (PDF) will serve as the third bellwether trial. The wrongful death lawsuit indicates their child, Deondrick W. Brown, Jr., died of NEC in September 2021, after being fed Similac and Enfamil products.

The last claim selected to go before a jury was filed by Alexis Inman in June 2022, which only presents claims against Mead Johnson for damages caused by their Enfamil formula. Inman indicates that her child died of NEC complications after consuming Enfamil shortly after birth.

According to the docket entry posted by Judge Pallmeyer earlier this month, the parties have been directed to contact the courtroom deputy for purposes of scheduling “firm trial dates” for each of the four baby formula NEC bellwether lawsuits.

Judge Pallmeyer has previously indicated the cases will be spaced about 12 weeks apart.

NEC Lawsuit Bellwether Verdicts May Drive Settlement

The four MDL bellwether trials will be the first baby formula NEC lawsuits to go to trial in the federal court system. However, a number of state court claims have already gone before juries in recent months, each ending in massive damage awards against the two baby formula manufacturers.

In March 2024, an Illinois jury ordered Mead Johnson to pay $60 million in damages in an Enfamil lawsuit brought by Jasmine Watson. Following over four weeks of testimony, it took the jury only four hours to reach a verdict, awarding $25 million more in damages than Watson’s attorneys had asked for.

In July 2024, a separate jury in St. Louis ordered Abbott Laboratories to pay $495 million in a Similac lawsuit, including a massive punitive damages award intended to punish the manufacturer for disregarding the health and safety of premature infants and families.

The four federal MDL trials will be closely watched to determine whether similar outcomes will be returned outside of state courts. The average lawsuit payouts may also have a substantial impact on the amount that Abbott and Mead Johnson may be required to pay in NEC settlements to avoid hundreds of additional claims going before juries.

As the bellwether trial process continues, NEC baby formula lawyers are continuing to review and file new claims for families nationwide, so the size and scope of the litigation is expected to continue to grow. If the parties fail to resolve the litigation following bellwether trials, Judge Pallmeyer may start remanding dozens of individual claims back to U.S. District Courts nationwide for separate trial dates.