NEC Baby Formula

Defendants in NEC Baby Formula Lawsuit Seek Case Dismissal

The companies facing lawsuits in the NEC baby formula multidistrict litigation have filed a motion for summary judgment. Their primary argument is that the plaintiffs have not provided admissible expert testimony proving that cow’s milk-based infant formula leads to necrotizing enterocolitis (NEC) in premature infants. The defense strategy heavily relies on challenging the credibility of the plaintiffs’ expert witnesses, Dr. Logan Spector and Dr. Jennifer Sucre, under Rule 702 of the Federal Rules of Evidence. If the motion is granted, it would remove key testimony on general causation, which the defense claims is critical to the case—potentially resulting in the dismissal of all claims. However, this outcome appears unlikely.

The motion presents an argument that downplays the basis of the lawsuits, seemingly ignoring past rulings where juries and judges have held formula manufacturers accountable. Notably, in March 2024, a jury in St. Clair County, Illinois, awarded $60 million to the family of a premature infant who developed NEC after consuming cow’s milk-based formula. Just a few months later, in July 2024, a Missouri jury delivered a $495 million verdict against Abbott Laboratories, finding their Similac formula contributed to an NEC diagnosis. The defense’s motion does not acknowledge these substantial verdicts.

Their argument leans on a report from the National Institutes of Health (NIH) Working Group, which suggests that NEC is linked more to the absence of human milk rather than direct exposure to formula. Additionally, the defense references a joint statement from the FDA, CDC, and NIH, which concluded that no definitive evidence links preterm infant formula to NEC.

However, citing selective studies does not automatically entitle the defendants to summary judgment. Plaintiffs are expected to counter this motion by presenting extensive research and internal company records that indicate formula manufacturers were aware of potential risks for years yet failed to provide proper warnings to healthcare providers and parents. If granted, this motion would effectively end all cases within the multidistrict litigation. However, given the history of major jury verdicts in similar cases, such an outcome appears far from certain.

Abbott Laboratories and other defendants in the Preterm Infant Nutrition MDL have filed a motion to exclude Dr. Jennifer Sucre, a highly esteemed neonatologist, from testifying about the connection between formula feeding and necrotizing enterocolitis (NEC) in preterm infants.

Dr. Sucre is a distinguished expert in neonatal medicine. As a nationally recognized neonatologist and physician-scientist at Vanderbilt University, her pioneering research bridges clinical care with advanced scientific discoveries to enhance outcomes for premature infants. With extensive expertise in cellular biology and preterm infant health, her peer-reviewed work has significantly contributed to the field of neonatal medicine, earning her a reputation as a leading authority.

Despite her impressive qualifications, the defendants argue that Dr. Sucre is unfit to testify, claiming her focus on lung development undermines her ability to speak on NEC. They also challenge her reliance on animal and in vitro studies, disregarding the ethical and logistical constraints of conducting human trials on such a vulnerable population. Their intent is clear: discredit a credible expert to weaken the plaintiffs’ case and minimize their own liability.

It’s no surprise the defendants are attempting to exclude Dr. Sucre before trial. Her testimony would be both compelling and detrimental to their defense, which is precisely why they want to prevent the jury from hearing it.

The Joint Status Report submitted today in the MDL presents an organized pretrial briefing schedule, mutually agreed upon by both parties, to efficiently address Rule 702 motions concerning expert witness testimony and dispositive motions. This approach aims to streamline proceedings by focusing on key issues while postponing certain case-specific motions to trial-specific timelines. Meanwhile, general causation motions and selected expert challenges will move forward.

Key aspects include a phased schedule for briefing motions related to both general and case-specific experts, predefined page limits for filings, and a structured process to handle disputes over supplemental reports and depositions. Additionally, the parties have established deadlines for motions in limine and the final pretrial conference for the first bellwether trial, ensuring coordinated efforts to prevent scheduling conflicts as the litigation advances. The trial for the Mar case is scheduled to commence on May 5, 2025.

The status conference in the MDL scheduled for today has been postponed. A new date has not yet been set.

Scheduled Dates for the Initial Four Bellwether Trials:

• May 5, 2025 – Mar v. Abbott Laboratories (Case No. 1:22-cv-00232)
• August 11, 2025 – K.B. v. Abbott Laboratories (Case No. 1:22-cv-05356)
• November 3, 2025 – Brown v. Abbott Laboratories (Case No. 1:22-cv-02001)
• February 2, 2026 – Inman v. Mead Johnson & Company, LLC, et al. (Case No. 1:22-cv-0373)

There is optimism that a global settlement could be reached before these trials commence, though the outcome remains to be seen.

The recent defense win in Missouri shows how unpredictable jury trials can be. While the plaintiffs in this case didn’t win, it’s unlikely to stop the ongoing NEC lawsuits. Lawyers for the plaintiffs are still hopeful, pointing to previous cases where large amounts of compensation were awarded as proof that the litigation is strong and moving forward.

The defense win in Missouri yesterday won’t stop the momentum of this litigation. In October alone, 26 new cases were filed, bringing the total to over 600 pending cases. Many more are being added in state court. Right now, state court cases are moving faster than the MDL, shaping the tone of this litigation and encouraging more plaintiffs to file in state court.

Just yesterday, I mentioned signs that seemed to point to a plaintiff’s victory. However, it’s impossible to predict the outcome of a trial. The defendants secured their first defense win in Whitfield. Plaintiffs’ lawyers were confident, even asking for $6 billion in punitive damages during their closing statements.

The most recent state court trial involving baby formula has resulted in a win for the defendants. A St. Louis jury sided with Abbott and Mead Johnson in a case where a mother of a premature infant, who developed NEC, claimed that the companies failed to warn about the risks of the disease. This verdict is surprising, especially after two state trials earlier this year resulted in huge wins for the plaintiffs.

In the MDL (Multidistrict Litigation), there was also major news earlier this month. The parties involved proposed a schedule for the four bellwether cases, with the first trial set to begin on May 5, 2025. These trials will continue through February 2026, but the schedule still needs to be approved by Judge Pallmeyer.

A Missouri jury awarded $495 million to the family of an infant who suffered severe complications from NEC after consuming Abbott’s premature infant formula in the NICU. Lawyers believe this verdict could have a significant impact on the future of baby formula litigation. The award consisted of $95 million in damages and $400 million in punitive damages. Abbott disagrees with the verdict and plans to seek an appeal. This case was in state court, while bellwether trials for the federal MDL are set to begin in May 2025, unless the defendants attempt to negotiate a settlement before then.

The number of cases in the infant formula NEC class action MDL keeps growing steadily. In November, 26 new cases were added, which is the same number as the month before. Currently, there are 626 cases pending in the MDL. However, there is no information on how many of these cases involve Enfamil compared to other formula brands.