Similac Recall Class Action Lawsuits Dismissed By Federal Judge, But Individual Injury Claims Allowed to Proceed

The U.S. District Judge presiding over all Similac recall lawsuits filed over contaminated infant formula distributed nationwide last year has dismissed economic loss claims raised in class action lawsuits, but is allowing individual lawsuits to move forward over injuries caused by cronobacter and salmonella in the powdered formula.

Abbott Laboratories recalled Similac, Alimentum and Elecare formula products in February 2022, after it was confirmed that powdered formula manufactured at a Michigan facility was contaminated with Salmonella Newport and Cronobacter sakazakii bacteria.

At least two infant deaths and hundreds of illnesses have been reported by parents who fed the recalled formula to their children, and subsequent investigations have revealed Abbott ignored industry safety standards and best practices at its facility for years, endangering children for the sake of profits.

Shortly after the Similac recall, lawsuits were filed by families of babies who experienced problems. However, a number of Similac recall class action lawsuits were also filed, seeking economic damages for all consumers who purchased the contaminated formula, even if no injuries resulted from the contamination.

Given common questions of fact and law raised in the complaints, the U.S. Judicial Panel on Multidistrict Litigation (JPML) has established centralized pretrial proceedings in the federal court system, consolidating the lawsuits as part of an MDL before U.S. District Judge Matthew F. Kennelly in the Northern District of Illinois.

Similac Class Action Lawsuits Dismissed

This month, Judge Kennelly considered motions to dismiss filed by Abbott Laboratories, which separately sought to dismiss certain claims in the personal injury lawsuits, as well as the economic loss class action lawsuits over the Similac recall.

Following a hearing on May 1, Judge Kennelly denied Abbott’s attempts to dismiss the individual claims, rejecting arguments that plaintiffs could not establish that their children’s food poisoning illnesses, particularly cases of salmonella, were traceable to the recalled infant formula products. While removing a few specific claims from some cases, Judge Kennelly allowed those cases to move forward en masse in a May 22 case management order (PDF).

However, regarding Similac recall class action lawsuits, plaintiffs argued the recalled products failed to warn consumers of the risks of cronobacter and salmonella food poisoning. Abbott’s motion to dismiss argued that plaintiffs failed to adequately prove standing, meaning they suffered direct injury, and could not plausibly argue that the products were defective.

Judge Kennelly agreed with Abbott and issued a separate case management order (PDF) on May 22, dismissing the 10 Similac class action lawsuits.

May 2023 Similac Recall Lawsuit Update

As part of the coordinated management for the remaining Similac injury lawsuits, it is expected that Judge Kennelly will establish a bellwether trial program, where small groups of representative claims are prepared for early trial dates.

While the outcome of these bellwether trials will not be binding on other cases, they will be used to help gauge how juries are likely to respond to evidence and testimony which could be repeated in hundreds of separate trials, and may help form the basis of a Similac recall settlement agreement.

A similar process has been established in a separate federal MDL established for all Similac lawsuits over NEC (necrotizing enterocolitis) diagnosed among premature infants fed the cow’s milk-based infant formula.

Dozens of Similac NEC lawsuits and Enfamil NEC lawsuits have been centralized before U.S. District Judge Rebecca R. Pallmeyer, as part of a separate consolidated pretrial proceeding.

Each of the complaints raise similar allegations against Abbott and Mead Johnson, the manufacturer of the competing cow’s milk-based formula Enfamil, indicating that the companies knew that premature infants faced an increased risk of NEC from their formula, yet false and misleading information has been provided to families and the medical community.

Discovery was completed in a group of 12 bellwether claims brought against the two infant formula manufacturers, which will soon be reduced to a small group of four claims that will be eligible for the first trial dates.

In advance of the firs trial, Judge Pallmeyer has ordered that the parties engage in a series of infant formula NEC settlement talks, to discuss potential resolution of the litigation. However, if settlements are not reached, it is expected that the Court will consider challenges to the admissibility of expert witness testimony in early 2024, and trial schedules will be established at a pretrial conference in March 2024.