Second NEC Baby Formula Bellwether Trial Will Not Move Forward

Lawyers will now prepare a third bellwether lawsuit involving a premature infant diagnosed with NEC from baby formula to go before a jury, although a trial date for that case has yet to be scheduled.

The U.S. District Judge presiding over all federal NEC baby formula lawsuits indicates that a bellwether case previously scheduled to begin next month will not move forward, after agreeing with the manufacturer that key expert testimony offered by the plaintiffs should be excluded from the trial.

The case has been closely watched by lawyers involved in more than 700 Similac lawsuits and Enfamil lawsuits being pursued against Abbott Laboratories and Mead Johnson, respectively, each raising similar allegations that the baby formula manufacturers failed to disclose that their products may cause premature babies to develop a devastating gastrointestinal condition known as necrotizing enterocolitis (NEC).

Babies develop NEC when harmful bacteria infiltrate the walls of a newborn’s intestines, causing portions of the tissue to become inflamed or die. Often, infants who develop the condition require emergency surgery while still in the neonatal intensive care unit (NICU) after birth, and many do not survive the disease.

Despite evidence that premature babies face a greater risk of NEC after being fed formula, compared to human breast milk, lawsuits allege that the manufacturers withheld critical warnings and safety information from families and the medical community for decades, continuing to promote use of their products among these vulnerable infants.

Since many of these claims involve common questions of fact and law, all federal NEC baby formula lawsuits have been consolidated in the Northern District of Illinois under U.S. District Judge Rebecca R. Pallmeyer, as part of a federal MDL, or multidistrict litigation.

Over the past few years, Judge Pallmeyer has been overseeing coordinated pretrial discovery and preparing a small group of bellwether cases for early trial dates, which were expected to begin this year.

These bellwether trials are intended to help the parties gauge the strength and weaknesses of arguments, evidence and testimony that will likely be used throughout the litigation. While the outcomes are not binding on other claims, they could play a big role in NEC settlement negotiations needed to avoid hundreds of individual cases being set for trial in federal courts nationwide in the coming years.

Infant Formula NEC Bellwether Trials

Originally, Judge Pallmeyer selected four NEC baby formula lawsuits for bellwether trials. However, the first trial, scheduled for April 2025, was dismissed by Judge Pallmeyer after she determined the plaintiff lacked sufficient evidence to pursue her claim. Now, it appears the second bellwether selection, involving claims brought by Keosha Diggs, could meet a similar fate.

Diggs, of Maryland, alleges her minor child, identified only as “K.B.”, suffered NEC after being fed Similac and Enfamil products, resulting in severe life-long injuries. Her case was scheduled to go before a jury on August 8.

However, in a court order (PDF) issued on July 24, Judge Pallmeyer granted a motion by Abbott to exclude key expert witness testimony that Diggs needed to establish a link between K.B.’s injuries and the use of Similac baby formula. Then, on Monday, the judge granted Abbott summary judgment, ruling in the company’s favor, meaning the trial will not go forward as planned.

Another bellwether trial is already in the works, involving claims brought by Alexis Inman, whose child died after being fed Mead Johnson’s Enfamil products shortly after birth. However, no trial date has yet been set in that case.

The bellwether trials are being closely watched, as jury awards in these early cases are expected to influence how much Abbott and Mead Johnson may need to pay in NEC formula lawsuits settlements to resolve the litigation. Otherwise, Judge Pallmeyer could start remanding each individual claim back to the U.S. District Courts where it originated for separate trial dates.

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