Similac Necrotizing Enterocolitis (NEC) Lawsuit Allowed To Proceed, With Certification Of Certain Claims to Conn. Surpeme Court

A federal judge has rejected an attempt by Abbott Laboratories to entirely dismiss a wrongful death lawsuit brought by the family of an infant that allegedly developed necrotizing enterocolitis (NEC) from Similac baby formula used in a hospital NICU, allowing certain claims to move forward and certifying other questions of law to the Connecticut Supreme Court.

The original complaint (PDF) was brought by the family of Aries Peterson in the U.S. District Court for the Northern District of Connecticut in October 2020, presenting claims against Abbott for failure to warn, design defects, negligence, negligent misrepresentation, breach of express warranty, intentional misrepresentation, violations of the Connecticut Unfair Trade Practices Act (CUTPA) and loss of filial consortium under common law.

Peterson was born prematurely and died after spending his entire three-month life in the neonatal intensive care unit (NICU) at Yale New Haven Hospital, in Connecticut. According to the family, the child died of NEC in April 2018, after being fed Similac Neosure, Similac Human Milk Fortifier and Similac Special Care while hospitalized, each of which are cow’s milk-based products.

Necrotizing enterocolitis (NEC) is a severe intestinal disorder among infants, which results in inflammation and necrosis of intestinal tissue. It primarily occurs among premature infants, and often results in death or devastating injuries.

Over the last decade, a number of studies have indicated that use of cow’s milk baby formula like Similac may increase the risk of NEC in preterm infants, leading a growing number of health experts to recommend that premature babies only receive the mother’s breast milk, donor breast milk or certain breast-milk based formulas. However, a number of Similac necrotizing enterocolitis lawsuits now allege that Abbott knew that its formula was unreasonably dangerous for premature babies, yet continued to sell and distribute the products without providing adequate warnings to parents, hospitals and medical providers.

Abbott filed a motion to dismiss the complaint nearly in its entirety, and also asked the Court to strike allegations that it maintained were scandalous and inflammatory.

In a 41-page opinion (PDF) issued on August 19, U.S. District Judge Stefan Underhill did agree to dismiss certain claims for negligent misrepresentation, intentional misrepresentation, breach of express warranty and violations of the CUTPA. However, the court allowed other claims to survive, including state law theories of failure to warn, design defect and negligence, as well as the parent’s claims for loss of filial consortium.

In response to Abbott’s request to strike certain paragraphs from the complaint which asserted the company sought to profit by intentionally harming infants, plaintiffs’ argued that the allegations were substantive and relevant to Abbott’s potential recklessness. The Court denied that motion to strike, because “the allegations that Abbott argues are scandalous are really not.”

Judge Underhill did indicate two questions of state law on those remaining claims will be certified to the Connecticut Supreme Court, including questions about whether the learned intermediary doctrine applies to the state law failure to warn theory and whether Connecticut law recognizes a cause of action for filial consortium, involving a parents claim for loss of a child’s affection, love and companionship.

The parties have been directed to file either a stipulated statement of facts for the certification that will be filed to the Connecticut Supreme Court, or a written notice that they can not agree on such a stipulated statement, by September 20, 2021.

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