NEC Baby Formula Lawsuit Updates
Necrotizing enterocolitis, or NEC, is a severe gastrointestinal condition that mostly affects premature babies. According to the Cleveland Clinic, the condition inflames intestinal tissue and causes it to die. Holes can form in the intestine of premature infants, allowing bacteria to leak through the intestinal wall or intestinal tract and into the abdomen or bloodstream. NEC can lead to severe complications and send preterm infants to neonatal intensive care units with life-threatening symptoms.
The Centers for Disease Control and Prevention lists NEC as the 10th leading cause of death for preterm babies and infants under one. The CDC study from 2019 also showed an increase of 19 percent from 2018. According to the American Academy of Pediatrics, NEC is also the most common life-threatening surgical emergency in newborns and preterm infants.
Families of newborn babies with NEC have filed multiple baby formula lawsuits against Mead Johnson & Co., the makers of Enfamil, and Abbott Laboratories Inc., the makers of Similac.
Legal actions filed by several personal injury attorneys and other lawyers claim that manufacturers should have known their products could lead to an increased risk for NEC in premature infants and that they failed to warn parents and medical professionals about the higher risk.
Both baby formula brands contain cow’s milk. Studies published by Advances in Nutrition have shown that newborns fed cow’s milk in baby formula demonstrate a higher incidence of NEC than those fed human breast milk. A 1990 study published in The Lancet showed that a child exclusively fed formula derived from cow’s milk was 6 to 10 times more likely to contract NEC than those fed human milk alone.
The NEC lawsuits not only claim manufacturers failed to provide the proper warnings of risks to child immune systems and potentially serious injuries but that they targeted parents of premature infants with advertising for baby formula products even though the company knew or should have known about the potential increased risk for severe medical problems from NEC.
The condition of infants with NEC can be life-threatening in severe cases, especially in those children with low birth weight. NEC has a mortality rate ranging from 30 to 50 percent, according to studies published in the Seminars in Pediatric Surgery.
April 2024 Latest NEC Lawsuit Updates
April saw the addition of 43 new cases to the multidistrict litigation involving NEC and preterm infant formula, marking the second consecutive month of higher-than-average new case volume in the MDL. The total number of pending cases has now reached 453.
March 2024
A plaintiff received a $60 million verdict in an NEC case. The trial lasted four weeks, with the jury rendering the verdict on March 13. The case centered around the link between NEC and premature infant formula made from cow’s milk. The verdict was more than double what the plaintiff requested. The jury found the defendants liable on counts alleging failure to warn and negligence.
November 2023
The court directed that Mead Johnson’s motions to dismiss will proceed with briefing. The plaintiffs’ responses were due by January 6, 2024, and limited discovery was allowed to determine if infants ingested Mead Johnson’s formula. Additionally, the court outlined a briefing schedule for a motion to appoint a special master to oversee depositions and set a further status conference for December 8, 2023, with a deadline for a revised case schedule proposal by December 1, 2023, if parties cannot agree by November 17, 2023.
October 2023
The judge has signed an order specifying the terms and procedures that both plaintiffs and defendants have consented to regarding handling NEC pathology reports and expert analysis. The court also extended the deadline for trial pick selections to October 16, 2023, and postponed the submission of position papers on their representativeness until after discovery is completed.
January 2023
As of January 17, 2023, 97 cases are pending in the Abbott Laboratories MDL. Discovery is in its earliest phases, and the number of cases is expected to grow.
Abbott Laboratories is facing another MDL regarding contaminated infant formula. As of January 17, 2023, 39 cases have been transferred to MDL 3037. These cases are pending in the U.S. District Court for the Northern District of Illinois before Judge Matthew F. Kennelly. The plaintiffs in this MDL allege their infants developed NEC from contaminated infant formula. Lead counsel and co-counsel have been assigned.
December 2022
Judge Pallmeyer has selected four NEC lawsuits as bellwether trials, with each side choosing two cases. These lawsuits allege that premature infants developed NEC after being fed cow’s milk-based formula, such as Enfamil or Similac, in the NICU. The plaintiffs claim that Mead Johnson and Abbott were aware of the risks but failed to provide adequate warnings.
The bellwether trials will assess how juries respond to scientific evidence linking NEC with cow’s milk-based products. Favorable outcomes for the plaintiffs could lead to a global NEC settlement, while unfavorable results may result in the dismissal of the baby formula lawsuits. Substantial evidence suggests that preterm infants fed Enfamil or Similac have a significantly higher risk of developing NEC compared to those who receive human breast milk.
October 2022
The cases were consolidated into MDL 3026 and transferred to the Northern District of Illinois in March 2022 under Judge Rebecca R. Pallmeyer.
As of October 14, 2022, 106 actions were pending against Abbott Laboratories and other defendants in the MDL.
January 2022
Abbott Laboratories and Mead Johnson, both headquartered in Illinois, are facing 33 lawsuits. In December 2021, the plaintiffs filed a motion to consolidate cases in the Illinois Supreme Court.
Abbott faces a separate class-action suit in the U.S. District Court for the Southern District of Illinois, filed in November 2021. The suit alleges that marketing falsely suggested that Similac Pro-Advance formula is comparable to breast milk. The complaint seeks class-action lawsuit status to pursue damages for all consumers in similar situations.
In that against Abbott, attorneys list that the product label contains language claiming “our closest formula to breast milk.” Yet, no reliable scientific studies provide scientific evidence showing similarities between baby formula and human milk. Further, lawyers point out that the World Health Organization’s International Code of Marketing of Breast-Milk Substitutes prohibits claims that idealize infant formula according to the legal action.
Thus, the lawsuit alleges the marketing claims for the baby formula products are false, deceptive, and misleading.
Previous NEC Litigation
Baby formula manufacturers knew about the risks of formula but failed to warn the public or place warning labels on products.
Manufacturers marketed false and misleading information about the risks to parents, hospitals, and medical teams.
Manufacturers of these popular infant formulas ignored known risk factors in favor of profit, knowing the high risk of health problems, such as NEC, yet still marketed the products to premature birth infants and families.
Some of the more notable previous lawsuits include those filed on behalf of baby Daniel Renteria-Hernandez and baby Aries Peterson.
Restad et al. v. Abbott Laboratories et al.
Plaintiffs Alicia Restad and Daniel Renteria-Hernandez filed a personal injury product liability action against Abbott Laboratories, Mead Johnson Nutrition Company, and Mead Johnson & Company in the U.S. District Court for the Eastern District of California.
According to the lawsuit, baby Daniel was born prematurely on April 29, 2019, in Merced, California. With a birth weight of 2 lb 2 oz, his treatment required a stay in the NICU. Daniel died 16 days later from NEC.
According to the lawsuit, “Science and research have advanced in recent years confirming the dangers of the defendant’s cow’s milk-based product in causing NEC and death in premature infants, yet the Defendant did nothing to change its product, packaging, guidelines, instructions, and warnings.”
Further, the suit states, “Warnings and instructions are overly broad and vague, and do not ever mention that the product significantly increases the risk of NEC and death, nor provide any detailed instructions or evidence on when and how to feed the infants and how to avoid NEC and death when feeding its products.”
Hunte v. Abbott Labs
Plaintiff Anika Hunte filed a product liability case against Abbott Laboratories after the death of her infant son, Aries Peterson, in the U.S. District Court for the District of Connecticut.
According to the lawsuit, baby Aries was born prematurely and spent three months in the NICU at Yale New Haven Hospital, where caregivers used three of Abbott Lab’s cow’s milk-based infant formula products. The plaintiff alleges the formula caused Aries to develop NEC.
Abbott Labs moved to have the suit dismissed in August 2021. Still, U.S. District Judge Stefan Underhill denied the company’s motion to dismiss and allowed legal proceedings in the infant formula lawsuits to continue.
A sampling of other cases against the maker of Enfamil formula and maker of Similac show several filed in the U.S. District Court for the Southern District of Illinois in 2021, including:
- Luna v. Abbott Laboratories
- Holbrook v. Abbott Laboratories
- Holden (Johnson) v. Abbott Laboratories
- Cravey v. Abbott Laboratories
- Little v. Abbott Laboratories
- Mann v. Abbott Laboratories
- Osborne v. Abbott Laboratories
- Grosshuesch v. Mead Johnson & Company et al.
- Monzon v. Abbott Laboratories
Cases filed in the U.S. District Court for the Northern District of Illinois in 2021 and 2022 include:
- Torres et al. v. Mead Johnson Nutrition Company et al.
- Hall v. Abbott Laboratories
Cases filed in the U.S. District Court for the Central District of California in 2021 include:
- Patriece Davis v. Abbott Laboratories et al.
- Mary Kelton v. Abbott Laboratories
- LaShanae Littles v. Abbott Laboratories et al.
- Latrice Richardson v. Abbott Laboratories et al.
Cases filed in the U.S. District Court for the Middle District of Florida and the U.S. District Court for the Northern District of Florida include:
- Sanchez Juan v. Abbott Laboratories et al.
- Crawford v. Mead Johnson & Company et al.
Cases filed in the U.S. District Court for the Middle District of Louisiana include:
- Brown, Sr. et al. v. Abbott Laboratories et al.
The Connection Between Infant Formula and NEC
While the exact cause of NEC remains undetermined, according to researchers, available information from multiple clinical studies has concluded a connection between cow’s milk or baby formula based on cow’s milk and adverse outcomes.
The American Academy of Pediatricians, or AAP, has recognized that providing breast milk for premature infants may be challenging. However, premature milk is higher in minerals and proteins, making it easier for newborns to digest and avoiding exposing a premature infant’s immature intestinal lining to the cow’s milk proteins found in premature infant formula.
According to the AAP:
“Premature babies who are breastfed are less likely to develop intestinal infections than are babies who are formula-fed. The milk you produce in the first few days contains high concentrations of antibodies to help your baby fight infection.”
Doctors at the AAP recommend breastfeeding, or an exclusive human milk diet, for about six months. In a policy statement, the group cited that the benefits of breastfeeding can lower the risk of NEC by as much as 77 percent.
A study of 926 preterm infants showed that formula-fed babies were 6 to 10 times more likely to show NEC symptoms than those fed breast milk alone. Among premature infants born at more than 30 weeks gestation, NEC was 20 times more common in infants fed formula only. Despite treatment options, researchers fear that the growing use of exclusive formula feeding in British neonatal units could account for an additional 500 cases of NEC annually and 100 deaths.
A 2017 review published by the American Society for Nutrition noted, “Several studies have indicated that bovine milk-based infant formulas lead to a higher incidence of NEC in preterm infants than does human milk.”
Another study published at the National Center for Biotechnology Information concluded, “In preterm and low birth weight infants, feeding with formula compared with donor breast milk results in a higher rate of short-term growth but also a higher risk of developing necrotizing enterocolitis.”
Researchers Alan Mucas, John Soscardin, and Steven Abrams looked at the common practice of feeding preterm infants a base diet of human milk but fortified with a cow’s milk-derived fortifier. Even when the diet was primarily human breast milk, the students reported that evidence points to an increase in adverse outcomes, including necrotizing enterocolitis with “severe morbidity comprising NEC surgery or death.”
Investigators at the Johns Hopkins Children’s Center prompted doctors to call for a change in feeding practices in NICUs. “The stark differences in the risk of NEC, its complications, and the need for surgery between babies who receive human donor milk and those who get formula signal the need for a change,” said Elizabeth Critofalo, MD.
The study, partly funded by the National Institutes of Health, showed that only one of the babies studied developed NEC and recovered without surgery. By comparison, of those fed exclusively formula, 5 out of 24, or 20.8 percent, developed symptoms of NEC, and 4 had complications that required surgery.
Background on NEC: What Is It and What Are the Risks?
Necrotizing enterocolitis is a serious intestinal disease. Tissue in the large or small intestine becomes injured or inflamed, leading to perforations in the intestinal wall or the death of intestinal tissue.
When this occurs, the intestine can no longer hold waste, which can cause bacteria to pass into the baby’s abdomen and abdominal cavity.
Stanford’s Children’s Health lists procedures that doctors may need to use to treat NECs, including:
- Surgery to remove damaged portions of intestines or bowels
- An ostomy connecting part of the intestine or bowel to an opening in the baby's abdomen
- Draining of peritoneal, or abdominal, cavity
Even with treatment, Stanford Children’s Health warns that there can be severe complications, including:
- Hole in the intestinal tract
- Scars and narrow areas in the intestine
- Difficulty in absorbing nutrients from food (short guy syndrome/short bowel syndrome)
- Long-term complications, including inhibited growth and developmental delays
- Sepsis and damage to multiple organs
- Death
NEC impacts approximately 1 in 1,000 preterm infants, according to the Cleveland Clinic. The risk is most significant for those most vulnerable, including newborns weighing less than 2 pounds at birth. NEC is rare in full-term infants. The Cleveland Clinic reports incidents of necrotizing enterocolitis in full-term newborns are about 1 in 10,000.
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