Status of NEC (Necrotizing Enterocolitis) Litigation
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The Centers for Disease Control and Prevention (CDC) lists NEC as the 10th leading cause of death for preterm babies and infants under one year of age. The CDC study from 2019 also shows an increase of 19% from 2018. According to the American Academy of Pediatrics, NEC is also the most common life-threatening surgical emergency in newborns and preterm infants.
MDL Venue and Judge Appointed in April 2022
Both baby formula brands’ products contain cow’s milk. Studies published by the National Institutes of Health have shown that cow’s milk in baby formula leads to a higher incidence of NEC in a newborn baby than in human breast milk. A study published in The Lancet — dated 1990 — showed that a child exclusively fed formula derived from cow’s milk was 6-10 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 necrotizing enterocolitis.
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% or 50%, according to studies published in the National Library of Medicine at the National Institutes of Health.
Latest Update on NEC Litigation : January 2023
As of January 17, 2023, 97 cases were pending in the Abbott Laboratories MDL. Discovery in this case is in its earliest phases, and the number of cases is expected to grow.
Abbott Laboratories is facing another MDL regarding contamination of infant formula. As of January 17, 2023, 39 cases have been transferred to MDL 3037. These cases are also being heard in the Northern District of Illinois with Judge Matthew F. Kennelly presiding. Plaintiffs in this MDL are alleging that contaminated infant formula led to their infants developing NEC. Lead counsel and co-counsel have been assigned.
Latest Update on NEC Litigation : 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, there were 106 actions pending against Abbott Laboratories and other defendants in the multidistrict litigation.
Latest Update on NEC Litigation : January 2022
Abbott Laboratories 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 (bovine formula) is comparable to breast milk. The complaint seeks class-action lawsuit status to pursue damages for all consumers in similar situations.
In this suit, attorneys list that the product label contains language claiming “our closest formula to breast milk.” Yet, no reliable scientific studies provide scientific evidence that shows 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.
As such, the lawsuit alleges marketing claims for the baby formula products are “false, deception, and misleading.”
Previous NEC Litigation
Restad et al v. Abbott Laboratories Inc. et al.
According to the lawsuit, baby Daniel was born prematurely on April 29, 2019, in Merced, California. With a birth weight of two pounds and two ounces, his treatment required a stay in the neonatal intensive care unit (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
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-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.
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 (AAP) recognizes that providing breast milk for premature infants may be challenging. However, premature milk is higher in minerals and proteins that make it easier for newborns to digest and avoids 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 (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%.
A study of 926 preterm infants showed that formula-fed babies were six to ten times more likely to show NEC symptoms than those fed break 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 (HM).” Another study published at the National Center for Biotechnology Information concluded that “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 primary human breast milk, the student 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, funded in part 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, five out of 24 (20.8%) developed symptoms of NEC, and four had complications that required surgery.
Background on NEC: What is it, and what are the risks?
When this occurs, the intestine is no longer able to hold waste, which can cause bacteria to pass into the baby’s abdomen and abdominal cavity.