A Missouri mother who lost her fight against preterm infant formula manufacturers and other defendants in a court case last fall will get another chance at justice for her child.
Elizabeth Whitfield’s son, Kaine, was born prematurely at 28 weeks at St. Louis Children’s Hospital in 2017, weighing just over two pounds. He was given cow’s milk-based preterm baby formula and developed a severe gastrointestinal disease called necrotizing enterocolitis (NEC).
He will endure frequent hospitalizations and digestive issues for the rest of his life.
In October 2024, Whitfield sued preterm formula manufacturers Abbott (Similac) and Mead Johnson (Enfamil) as well as the hospital. After a five-week trial, a jury ruled against Whitfield, marking the first and only victory for manufacturers in the NEC preterm formula trials. There are thousands of similar NEC preterm baby formula lawsuits based on the failure to include the risks of NEC on the formulas and claims that they were as safe as breast milk.
NEC has an infant mortality rate of up to 50 percent, making it the leading cause of death in preterm infants younger than two months. According to extensive research from as far back as the 1990s, babies who drink cow’s milk-based preterm formula have a higher risk of developing NEC than those fed breast milk.
The NEC trials before the Whitfield case ruled against Abbott and Mead Johnson for $495 million and $60 million, respectively.
On March 13, St. Louis Circuit Court Judge Michael Noble overturned the Whitfield NEC verdict and granted a motion for a new trial, ruling that the defense intentionally violated court orders and misled jurors.
In his ruling, Noble wrote that lawyers representing both Abbott and Mead Johnson “flooded the zone” with objections, presented previously disallowed evidence, and confused the jury with “straw man” arguments that babies would “starve to death” if their preterm formulas were discontinued.
Noble ruled on the disallowed evidence halfway through the trial. The defense attempted to use a joint statement issued by the NIH, FDA, and CDC in 2024 that there is “no conclusive evidence that preterm infant formula causes NEC.” They also introduced a report from a group of NIH doctors and researchers that concluded the absence of human milk, rather than the exposure to preterm formula, increases the risk of NEC.
Noble rejected those statements, saying there is no legal precedent qualifying government agency findings as expert testimony.
According to multiple sources, including a Ring of Fire update, the court sanctioned Abbott’s lead attorney and barred him from closing arguments for several bad faith violations, including making false claims against Whitfield and trying to cause a mistrial.
“The court finds the errors and misconduct were so prejudicial that [they] affected the credibility of evidence with an extreme passion and bias that denied Plaintiff a fair trial and undermined the entire judicial process,” Noble concluded.
Abbott and Mead Johnson both said they would appeal the judge’s decision.
In addition to state-level lawsuits like Whitfield’s, most of the preterm formula lawsuits filed in federal court were consolidated into multidistrict litigation under the Northern District of Illinois in 2022, as both Abbott and Mead Johnson are based in Chicago.
U.S. District Court Judge Rebecca Pallmeyer is overseeing discovery and pretrial proceedings for the cases in the NEC preterm infant formula MDL, which continues to add new lawsuits. She chose a few cases to serve as bellwether trials, which will go before juries, give both parties an idea of future outcomes, and encourage them to settle out of court. The first is scheduled for May.
Parents concerned that their infants may have developed NEC after consuming preterm infant formulas like Similac or Enfamil have legal options available. The dangerous and defective products attorneys at Childers, Schlueter & Smith offer free consultations to help families understand their rights and navigate potential claims. For more information, call 1-800-641-0098 or contact us online.
