Court Approves Plaintiff Fact Sheet for Bellwether NEC Lawsuits Against Infant Formula Manufacturers

The U.S. District Judge presiding over all NEC lawsuits filed against infant formula manufacturers has approved the use of a Plaintiff Fact Sheet, which will be completed for a small group of “bellwether” claims that are being prepared for early trial dates in the litigation.

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 NEC.

In the federal court system, there are several hundreds families currently pursuing Similac NEC lawsuit against Abbott Laboratories or Enfamil NEC lawsuit against Mead Johnson, alleging that the companies withheld important safety information from families and the medical community about the risks associated with use of their cow’s milk-based formula products among pre-term babies.

Given similar questions of fact and law raised in the complaints, a federal baby formula MDL (multidistrict litigation) was established earlier this year for all lawsuits over NEC caused by Similac or Enfamil, centralizing the claims before U.S. District Judge Rebecca R. Pallmeyer in the Northern District of Illinois for coordinated discovery and pretrial proceedings.

NEC Lawsuit Bellwether Trial Program

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 will go through case-specific discovery, and be scheduled for early trial dates to help gauge how juries will respond to certain evidence and testimony that will be repeated throughout the litigation.

Last month, Judge Pallmeyer selected eight cases to serve in the initial bellwether pool. In addition, the formula manufacturers has until November 23 to select the last four claims that will go through case-specific discovery and be eligible for the first bellwether jury trials.

On November 3, Judge Pallmeyer issued a case management order (PDF), which authorized a standardized Plaintiff Fact Sheet that will be completed in each case selected, to provide specific information about the child’s exposure to Similac or Enfamil and development of NEC.

Plaintiff Fact Sheets are commonly used in complex mass tort litigation, where large numbers of individuals are pursuing claims against the makers of the same product, involving similar injuries or claims.

For the NEC infant formula lawsuits, these ask for information such as when the child was diagnosed with NEC, whether the infant was placed in a Neonatal Intensive Care Unit (NICU), as well as the infant’s current medical condition and alleged NEC complications, and what the parents were told about the infant formula products their children were being fed.

The bellwether plaintiffs must complete the forms and give them to the defendants within 30 days of the Court entering an order officially identifying that case as an initial discovery case.

November 2022 NEC Lawsuit Update

Once the full list of 12 NEC bellwether lawsuits has been identified later this month, the parties will conduct depositions and case-specific discovery in each claim, examining the circumstances involved with each of the babies use of Similac or Enfamil, and NEC diagnosis. It is then expected that the discovery group will be reduced to a total of four claims, which will be eligible for the first trial, including two selected by Plaintiffs and two selected by Defendants.

Within 14 days after the close of fact discovery, the parties will submit their selections for the final trial cases, together with a three-page submission that explains which of the cases they submitted should be tried first, and on what basis.

Judge Pallmeyer is then expected to set the NEC lawsuit bellwether trial schedule, determining the order in which the cases will go before juries starting every 12 weeks.

While the bellwether process moves forward, NEC baby formula lawyers are continuing to review and file new claims for families nationwide, and the size of the litigation is expected to continue to grow throughout 2023 and 2024. Following the four early trial dates, if the parties fail to negotiate NEC lawsuit settlements for families, 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.