NEC Litigation Update

Necrotizing Enterocolitis (NEC) Litigation Over Baby Formula Moving Rapidly Forward

MDL No. 3026. In Re: Abbott Laboratories, et al., Preterm Infant Nutrition Products Liability Litigation

Justice Rebecca R. Pallmeyer, the presiding Judge of the United States District Court for the Northern District of Illinois who is overseeing the multi-district NEC litigation for toxic baby formula lawsuits, has approved a coordinated management plan which is pushing a select group of the NEC litigation claims forward to trial at a rapid pace.  The plan approved by Judge Pallmeyer will set 12 cases for trial approximately 12 weeks apart to allow for analysis and settlement discussion between trials. The outcomes of these 12 cases, possibly even fewer, could decide the fate of the entire litigation which is anticipated to grow well over 1,000 claims.

Update 12/2022 – The discovery process in MDL 3026 is underway, expert deadlines are set for December of 2023, and the first trial could begin as early as the first quarter of 2024.

Selection of the Bellwether Cases

To ensure fairness, the initial cases to be tried will include four cases chosen by the plaintiffs, four chosen by the defense, and four chosen by the Court randomly from the currently pending cases and will include cases against both Mead-Johnson Nutrition (maker of Enfamil) and Abbot Laboratories (maker of Similac).  The 12 bellwether cases will undergo case-specific discovery as to all 12 cases prior to the trial dates.  At the conclusion of discovery, the order of the trials will be decided by the Court with each party allowed to submit briefs with their recommendations.

Other Unresolved Issues

During the litigation discovery process, it is common for issues to arise affecting some or all of the claims that need to be addressed before the trials can proceed. One anticipated issue in this multi-district litigation is the claim by the two manufacturers that these types of claims are barred by the Infant Formula Act of 1980 which sets minimum ingredient requirements for infant baby formula. Another common issue is whether the expert testimony is sufficient to establish a causal link between the specific formula’s use with premature infants and NEC.  Lastly, determining the statute of limitations dates on these types of claims may be tricky since the statute of limitations for children’s claims often does not begin to run until their 18th birthday.

NEC Trial Dates To Come

The actual trial dates for the 12 trials have not yet been set by the Judge, however, early 2024 is likely. The number of claims is anticipated to continue to grow over the next few years. If a settlement cannot be reached after several or all of the trials, the Court may decide to remand the remaining claims back to their respective originating courts for trial. Thus, the Court does not have to wait until all claims are filed to begin the trials.