Premature babies must defy the odds, and caregivers allege that baby formula brands put their infants in harm’s way. Parents say certain baby formulas put their kids at risk for developing a rare gastrointestinal condition called necrotizing enterocolitis (NEC). These parents are suing baby formula manufacturers and say the serious disease was partly caused by formula use. The cases are spread across several states and have been consolidated into multidistrict litigation to accelerate the process. Multidistrict litigation, or MDL, is a unique process that makes federal court cases more efficient. All claims are transferred to the same judge, who decides all cases. MDL proceedings can take months or years, but they generally move faster than individual lawsuits. As a result, parents who have filed lawsuits against formula manufacturers may see their cases resolved sooner than initially expected.
What is NEC?
Necrotizing enterocolitis is a disease that usually affects premature babies during the first few weeks after birth. The condition causes bacteria to attack the newborn’s large intestinal wall, inflaming and killing tissue. Premature babies have weaker immune systems and are already prone to gastrointestinal issues, and NEC can have a mortality rate of up to 50%. Babies who survive might experience health complications like abdominal failures, developmental delays, and feeding problems. Some children will need surgery to resolve the issues.
Doctors don’t know what causes the disease, but there’s ample evidence that formula consumption increases the chances of NEC developing. In one study, researchers found that formula-fed preterm infants are 138% more likely to develop necrotizing enterocolitis. Mead Johnson and Abbott Laboratories are two manufacturers facing lawsuits for failure to warn hospitals and parents about the potential dangers of formula consumption. The companies are responsible for two of the most popular formula brands, Enfamil and Similac. Research dating back to 1990 links cow’s milk formula with an increased chance of NEC, but the formula manufacturers didn’t include any label warnings about the risk.
Both Enfamil and Similac have cow’s milk-based formulas designed explicitly for preterm babies, and the brands market them as safe options that aren’t any different than human milk. Parents of NICU babies who believe that there’s no significant risk of preterm formula use might choose it for their children, not realizing that formula increases the chance that the baby will develop NEC. Some parents suing the formula manufacturers have lost their children to NEC complications, while others watched their children suffer injuries after developing the condition. Some of the formulas named in lawsuits include:
- Enfamil Human Milk Fortifier
- Enfacare Powder
- Enfamil NeuroPro
- EnfaCare Infant Formula
- Similac Special Care
- Similac Neosure
- Similac Human Milk Fortifier
NEC Baby Formula Lawsuits Consolidated
This month, Abbott and Mead Johnson moved to consolidate lawsuits into multidistrict litigation. According to a transfer order filing, there are currently 16 actions related to NEC and formula pending in seven districts around the country, with 20 additional potentially related civil actions spread out across eight districts. The request was granted, and the cases have been centralized in Illinois, where both companies are headquartered. A single judge will handle the cases.
Parents and caregivers considering filing lawsuits might question whether an MDL will affect their ability to receive a fair settlement. One benefit of multidistrict litigation is that it involves bellwether trials, also known as test cases. Product liability lawsuits involve similar complaints that are sometimes nearly identical. Because it doesn’t make sense to take every case to trial, the judge and attorneys from both sides will pick a few sample cases.
These cases give both the defendants and plaintiffs an idea of how they might fare at trial, which helps shape settlement discussions. If all test trials were decided in the plaintiffs’ favor, the formula companies might be eager to settle cases and end the proceedings as soon as possible rather than going back and forth. Parents still have time to file NEC baby formula lawsuits, but the statute of limitations varies by state and can be complex. Filing sooner is a good bet, especially because test trials are not yet underway.
Formula companies could be on the hook for damages like past and future medical care, pain and suffering because of the injury, and lost wages from a caretaker who had to take time off to focus on the child. Caring for a child with necrotizing enterocolitis can be all-consuming, and a lawsuit might be the last thing on a parent’s mind, but it’s worth considering. Pursuing legal action offers a way to recover compensation that could help with expensive medical bills and long-term costs.