Similac, Enfamil Formula NEC Settlement Talks To Be Held in October 2023, For Bellwether Selections

The final four final bellwether selections have been identified, and a pretrial schedule calls for a series of Similac and Enfamil formula NEC settlement talks to be held before the first claims go to trial in 2024

As a group of twelve Similac lawsuits and Enfamil lawsuits are being prepared for early trial dates that expected to begin in 2024, each involving allegations that the infant formula caused premature babies to develop necrotizing enterocolitis (NEC), the U.S. District Judge presiding over the litigation has ordered a a series settlement talks be held in October 2023, to explore a resolution for hundreds of similar claims being pursued by families nationwide.

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.

Several hundred families are now pursuing NEC lawsuits against the makers of cow’s milk-based infant formula products, including Similac and Enfamil. alleging that Abbott Laboratories and Mead Johnson knew failed to warn families and the medical communities that premature infants faced an increased risk of developing the condition, compared to infants fed human milk.

In the federal court system, 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.

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.

In October, Judge Pallmeyer identified the first eight cases that will serve in the initial bellwether pool, including four claims selected by plaintiffs and another four randomly selected by the Court. On December 1, another order (PDF) was issued identifying four additional claims selected by the infant formula manufacturers.

According to a pretrial schedule (PDF) established by the court last month, fact discovery will be completed for those 12 bellwether cases by April 28, 2023. The parties will then select a smaller group of four claims that will be eligible for trial two weeks later, and conduct expert discovery over the remainder of 2023.

As part of the pretrial schedule, a series of court-ordered infant formula NEC settlement talks will be held between October 15 and October 27, 2023, at which time the parties will participate in mediation on the Bellwether selections, which may also lay the ground work for negotiating an agreement that would settle all claims pending against the two manufacturers.

If NEC settlements are not reached, the Court will consider challenges to the admissibility of expert witness testimony in early 2024, and a final pretrial conference has been set for March 11, 2024, at which time the parties will establish the schedule for initial trials.