Similac Recall Lawsuits Over Contaminated Baby Formula To Be Selected For Bellwether Trials

Proposal calls for lawsuits over recalled Similac, Alimentum and Elecare products to be selected as early test cases, involving allegations children were sickened or killed by contaminated baby formula

Abbott Laboratories and plaintiffs’ attorneys have submitted a joint proposal, which calls for a group of 10 Similac recall lawsuits to be selected for a bellwether discovery process, which will be prepared for early trial dates to help gauge how juries will respond to claims involving injuries caused by contaminated baby formula that was distributed throughout the U.S. in recent years.

The litigation emerged after Abbott recalled Similac, Alimentum and Elecare formula products in February 2022, following the discovery that bottles manufactured at a Michigan facility were contaminated with Salmonella Newport and Cronobacter sakazakii bacteria.

At least two infant deaths and hundreds of illnesses were reported by parents who fed the contaminated baby 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.

If the proposed Similac recall lawsuit bellwether selection process is approved by the U.S. District Judge presiding over the consolidated litigation, it will allow the parties to focus case-specific discovery on a small group of representative claims, which will provide useful information that may drive future settlement negotiations.

Similac Recall Lawsuits Joint Bellwether Trial Selection Plan

Given common questions of fact and law raised in the complaints, the U.S. Judicial Panel on Multidistrict Litigation (JPML) established coordinated pretrial proceedings for all lawsuits resulting from the Similac recall, centralizing the claims before U.S. District Judge Matthew F. Kennelly in the Northern District of Illinois.

As part of the coordinated management for the litigation, Judge Kennelly told parties last month to begin collaborating on a plan for how cases should be selected for bellwether trials.

On July 24, the parties submitted a joint proposal (PDF) for the bellwether case selection process and scheduling order, indicating that they were able to work collaboratively over the past month to reach the agreement.

The plan proposes that each party select five cases to go through initial bellwether discovery, with each side selecting at least one claim involving a cronobacter diagnosis, one involving a meningitis diagnosis, and at least two which must involve Salmonella diagnoses without also involving a meningitis diagnosis, and a fifth case which can allege any specific type of diagnosis.

The parties indicate that the 10 cases will be selected in the “good faith belief” that they are representative of the body of cases filed as a whole. Once the proposed order is approved by Judge Kennelly, each side will have 60 days to make their selections.

The selected Similac recall lawsuits will go through a case-specific discovery process, and depositions to prepare for trial. This group will later be reduced to a group of up to five cases eligible for bellwether trials, which will be selected by Judge Kennelly.

July 2023 Similac Recall Lawsuits and NEC Lawsuits Updates

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.