Court Identifies First Eight Bellwether Lawsuits Over NEC Caused By Baby Formula

As coordinated pretrial proceedings move forward in the federal MDL established for all lawsuits over necrotizing enterocolitis (NEC) caused by baby formula, the U.S. District Judge presiding over the litigation has identified eight out of the 12 “bellwether” cases that will be eligible for early trial dates.

Necrotizing enterocolitis (NEC) is a devastating gastrointestinal disease, which primarily impacts premature babies, occurring when harmful bacteria breaches the walls of the intestines, causing portions of the tissue to become inflamed or die. The condition often results in the need for emergency surgery while the baby is still in the NICU, and many infants do not survive NEC.

In the federal court system, there are several hundreds families currently pursuing Similac NEC lawsuit against Abbott Laboratories or Enfamil NEC lawsuit against Mead Johnson, alleging that the companies withheld important safety information from families and the medical community about the risks associated with use of their cow’s milk-based formula products among pre-term babies.

Given similar questions of fact and law raised in the complaints, a federal baby formula MDL (multidistrict litigation) was established earlier this year for all lawsuits over NEC caused by Similac or Enfamil, centralizing the claims before U.S. District Judge Rebecca R. Pallmeyer in the Northern District of Illinois for coordinated discovery and pretrial proceedings.

As part of the management of the litigation, Judge Pallmeyer has established a “bellwether” program, where a small group of NEC lawsuits will go through case-specific discovery and be scheduled for early trial dates, to help gauge how juries will respond to certain evidence and testimony that will be repeated throughout the litigation.

Court and Plaintiff NEC Lawsuit Bellwether Case Selections

Earlier this month, plaintiffs selected four bellwether cases and both sides jointly submitted a list of 66 NEC lawsuits that were eligible for a random selection process by the Court.

In an order (PDF) issued by Judge Pallmeyer on October 20, the Court identified the four selections by plaintiffs’ attorneys, and the four cases randomly selected by the court. The formula manufacturers will now have until November 23 to select the last four claims that will go through case-specific discovery and be eligible for the first bellwether jury trials.

Among both the cases selected by both plaintiffs and the Courts random picks, three from each group involve lawsuits over NEC caused by Similac, and one lawsuit involving Enfamil.

One of the cases chosen by plaintiffs includes a wrongful death claim (PDF) filed by Deondric Brown, Sr. and Rebekah Etienne, parents of Deondrick W. Brown, Jr., who died at less than two months old after being fed Similac and Enfamil and developing necrotizing enterocolitis in September 2021.

Another complaint (PDF) chosen by plaintiffs was filed by Sylvana Lopez on behalf of her daughter, Bella Castillo, who was born prematurely in June 2020 and died less than a month later after being fed Similac Special Care and Neosure less than a month later due to NEC complications.

October 2022 NEC Lawsuit Update

Once the full list of 12 NEC bellwether lawsuits has been identified, the parties will conduct depositions and case-specific discovery, examining the circumstances involved with each of the babies use of Similac or Enfamil, and NEC diagnosis. It is then expected that the discovery group will be reduced to a total of four claims, which will be eligible for the first trial, including two selected by Plaintiffs and two selected by Defendants.

Within 14 days after the close of fact discovery, the parties will submit their selections, together with a three-page submission that explains which of the cases they submitted should be tried first, and on what basis.

Judge Pallmeyer is then expected to set the NEC lawsuit bellwether trial schedule, determining the order in which the cases will go before juries starting every 12 weeks.

While the bellwether process moves forward, NEC baby formula lawyers are continuing to review and file new claims for families nationwide, and the size of the litigation is expected to continue to grow throughout 2023 and 2024. Following the four early trial dates, if the parties fail to negotiate NEC lawsuit settlements for families, it is then likely that Judge Pallmeyer will start remanding dozens of individual claims back to U.S. District Courts nationwide for separate trial dates.