NEC Baby Formula Lawsuits To Be Prepared For First Bellwether Trial in May 2025

Judge has given parties involved in NEC baby formula lawsuits until August 2024 to complete fact discovery for the first batch of potential bellwether trials.

The U.S. District Judge presiding over pretrial proceedings for all federal NEC baby formula lawsuits has given the parties more time to finish fact discovery for a series of “bellwether” claims, which are being prepared to go before juries as test trials now set to begin in May 2025.

Over the last several years, Abbott Laboratories and Mead Johnson have faced hundreds of lawsuits brought by families of premature infants diagnosed with necrotizing enterocolitis (NEC), which is a devastating gastrointestinal disease that occurs 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.

Each of the Similac lawsuits and Enfamil lawsuits raise similar allegations, indicating that the manufacturers withheld information from families and the medical community about the risk of NEC when premature infants are fed the cow’s milk-based formulas.

Although versions of these infant formula products have been specifically marketed for use among premies, there is 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.

In the federal court system, a baby 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.

First NEC Baby Formula Lawsuit Trial Date Set

Originally, general fact discovery for the first cases selected for potential bellwether trials was scheduled to be completed by April 15, but Judge Pallmeyer extended that deadline to June 28, following an earlier require made by the plaintiffs.

However, in a court order (PDF) issued on June 6, Judge Pallmeyer once again extended the close of fact discovery deadline until August 9, while also laying out a schedule that culminates with the first NEC baby formula lawsuit trial starting on May 5, 2025.

Following the close of general fact discovery, the updated schedule calls for the parties to conduct expert depositions from November 4, 2024 through January 10, 2025, with all motions for summary judgment and Daubert challenges to the admissibility of expert testimony due by January 24, 2025.

The Court will then hold Daubert hearings on March 24, 2025, at which time Judge Pallmeyer will determine whether the expert witness testimony proposed by each side involves opinions that are sufficiently reliable and sound for a jury to consider.

If the parties fail to reach NEC baby formula lawsuit settlements or another resolution for the claims, a final pretrial conference has been scheduled for April 17 and the first jury trial will begin about two weeks later.

While the outcome of these early test trials will not be binding on other families pursuing lawsuits over NEC caused by baby formula, the average payouts awarded may influence the amount the manufacturers may need to offer to settle larger numbers of cases and avoid hundreds of individual cases being remanded back to U.S. District Courts nationwide for individual trial dates in the coming years.