Similac NEC Settlement Talks Result in MDL Census Order for Filed and Unfiled Claims

Judge hopes a complete count of claims against Abbott Laboratories will help ongoing Similac settlement negotiations to resolve claims being pursued by families of premature babies diagnosed with NEC.

The U.S. District Judge presiding over all baby formula necrotizing enterocolitis (NEC) lawsuits filed throughout the federal court system has ordered plaintiffs to provide the court with an accurate count of all claims being pursued over Abbott Laboratories’ Similac-brand products, including both filed and unfiled cases.

Both Abbott Laboratories and Mead Johnson face more than 700 Similac lawsuits and Enfamil lawsuits, respectively, which have already been brought in the federal court system. Each of those claims involve similar allegations that the companies failed to adequately disclose that their cow’s milk-based formula products increase the risk that preterm infants may develop NEC, a devastating and often fatal gastrointestinal disease.

Infants who contract NEC often require emergency surgery while still in the neonatal intensive care unit (NICU) after birth, and many infants do not survive their NEC experiences. However, children who survive NEC face life-long health complications.

As the lawyers work to prepare the first NEC lawsuits to go before juries, a large number of families are still investigating potential claims, since the statute of limitations for injuries sustained by children may not require the cases to be filed for several more years.

Given common questions of fact and law presented in the litigation, all federal NEC infant formula lawsuits have been consolidated in the Northern District of Illinois, before U.S. District Judge Rebecca R. Pallmeyer for coordinated pretrial proceedings.

To help promote NEC settlement talks, Judge Pallmeyer has ordered the parties to prepare a small group of representative claims for a series of early trial dates. These “bellwether” trials are designed to help the parties gauge the strengths and weaknesses of arguments, evidence and testimony that will likely be repeated throughout the litigation.

Originally, Judge Pallmeyer selected four infant formula NEC lawsuits for the bellwether trials, the first of which was scheduled to begin in April 2025. However, that case was dismissed just days before the trial was slated to begin and the next bellwether trial is now expected to begin in August 2025, involving a lawsuit filed by Keosha Diggs, of Maryland.

Similac NEC Lawsuit Census Order

To assist in the parties’ ongoing settlement talks, Judge Pallmeyer issued a census order (PDF) on July 15, calling for plaintiffs to provide the Court with a complete list of filed or unfiled claims specifically involving Similac products. The order is binding on all parties and counsel with cases currently pending in the MDL.

Judge Pallmeyer is giving each plaintiff who has already submitted a plaintiff profile form 30 days from July 15 to fill out a census form. Those plaintiffs without a completed profile form have 30 days to complete it and the MDL census form.

The order gives plaintiffs’ counsel 90 days to inform the court of their filing of a claim, with a census form due no later than 30 days after becoming a claimant, or 90 days after the order was filed, whichever is later.

Judge Pallmeyer appointed Randi S. Ellis to serve as Census Special Master, who will work with census liaison counsel representing plaintiffs and defendants.

Getting a better count for the total number of filed and unfiled claims, may help Abbott Laboratories determine how much in Similac NEC lawsuit payouts may be required to avoid the need for hundreds of individual claims to be set for trial in different U.S. District Courts in the coming years.

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