Mead Johnson Calls for Joint Similac and Enfamil MDL For Baby Formula NEC Lawsuits

Manufacturers of Similac and Enfamil, as well as many families pursuing NEC lawsuits over the baby formula, all support the creation of a federal multidistrict litigation (MDL)

In response to a recent request by Abbott Laboratories to create a federal MDL (multidistrict litigation) for all Similac lawsuits over NEC caused by the cow’s milk formula, Mead Johnson indicates that all Enfamil NEC lawsuits filed over it’s competing formula should also be centralized before the same U.S. District Judge.

Similac and Enfamil are two popular brands of infant formula, which have been widely used in recent years by doctors and hospitals for premature babies in the NICU. However, increasing research has found that the cow’s milk products greatly increase the risk of preemies developing necrotizing enterocolitis (NEC), a devastating intestinal disorder that is often fatal or results in the need for emergency surgery.

Dozens of families are now pursuing baby formula NEC lawsuits against Abbott Laboratories and Mead Johnson, alleging that for years they have withheld warnings and information from parents and medical providers about the risks associated with their products. Many of the cases name both manufacturers as defendants, indicating that new borns were fed both Similac and Enfamil in the NICU before developing NEC.

As lawsuits continue to move forward before different judges in separate U.S. District Courts nationwide, Abbott Laboratories filed a motion to create a Similac MDL for all claims brought over their products by families of preterm babies who developed NEC, indicating that the cases should be consolidated U.S. District Judge Stefan R. Underhill in the District of Connecticut for coordinated discovery and pretrial proceedings.

Such consolidation is common in complex product liability lawsuits, where large numbers of cases are brought before different judges that involve similar injuries caused by the same product. However, in this litigation, plaintiffs are not only pursuing lawsuits over NEC from Similac formula products, but also filing claims over Enfamil formula, which is manufactured and sold by Mead Johnson.

This week, Mead Johnson filed a response (PDF) supporting the creation of a joint Similac and Enfamil MDL, indicating that the cases should all be transferred to the same judge since they present common questions of fact and law. The manufacturer indicates that centralization would significantly reduce discovery burdens and duplicative litigation proceedings, which are certain to get worse as the size and scope of the litigation continues to expand.

A number of families have also filed responses supporting consolidation of the baby formula NEC lawsuits, but have proposed various other U.S. District Courts as better forums to manage the growing litigation, including the Northern District of Illinois, where Abbott’s headquarters are located.

“It is likely that employees and executives who have knowledge regarding the design, testing, and sales of the Defendant’s preterm infant nutrition products are located in the Northern District of Illinois,” said one group of plaintiffs in a response (PDF) filed February 9. “Likewise, a significant portion of the events and decision-making relating to the marketing and concealment of the health dangers likely occurred at Defendants’ headquarters in Lake County, Illinois and Cook County, Illinois. Accordingly, it is likely that the Northern District of Illinois has more relevant defense witnesses and relevant documents than any other district.”

The U.S. Judicial Panel on Multidistrict Litigation (JPML) is expected to schedule oral arguments on the motion during an upcoming hearing set for either March 31 or May 26.

If both Enfamil and Similac lawsuits are consolidated before one judge, it is likely that Court establish a “bellwether” program where small groups of representative claims will be prepared for early trial dates to help gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the litigation. However, if baby formula settlements or another resolution is not reached following the MDL proceedings, each individual lawsuit may later be remanded back to the U.S. District Court where it originated for a future trial date.