NEC Lawsuit | Toxic Baby Formula Attorneys | March 2023 Update

NEC Lawsuits filed on behalf of premature infants fed formula

Premature infants require additional care in the NICU

A premature infant is generally considered a birth that occurs before the 37th week of pregnancy.  A normal pregnancy generally lasts 40 weeks.  Premature births are common and include more than 200,000 U.S. Cases per year.

There are four stages of preterm including:

  • Late preterm – born between 34 and 36 completed weeks of pregnancy
  • Moderately preterm – born between 32 and 34 completed weeks of pregnancy
  • Late preterm – born at less than 32 completed weeks of pregnancy
  • Extremely preterm – born at or before 25 weeks of pregnancy

newborn babyPremature infants often require special care in the neonatal intensive care unit (NICU) and common complications include immature lungs, difficulty regulating body temperature, poor feeding, and slow weight gain.  Most premature births occur in the late preterm stage, and the earlier the infant is born, the higher the risk of complications.

Preterm infants can be as little as 1lb, 5 ounces birthweight and as much as 7lbs, 8 ounces birthweight.  A preemie baby’s weight at birth will be monitored by specialists in the NICU.



What is Necrotizing Enterocolitis?

Necrotizing enterocolitis (NEC) is a serious gastrointestinal problem that mostly affects premature babies. The condition inflames intestinal tissue, causing it to die.

A hole (perforation) may form in your baby’s intestine. Bacteria can leak into the abdomen (belly) or bloodstream through the hole. NEC usually develops within two to six weeks after birth.

In some infants, NEC is mild. Others experience severe, life-threatening symptoms.

Preemie Infants in the NICU are at the highest risk for developing NEC

Nearly all babies — 9 out of 10 — who get NEC are born early. The condition mostly affects babies:

NEC Baby Formula Symptoms Include:

  • Abdominal pain and swelling
  • Changes in heart rate, blood pressure, body temperature and breathing
  • Diarrhea with bloody stool
  • Green or yellow vomit
  • Lethargy
  • Refusing to eat and lack of weight gain.

crying baby in hospitalSadly, NEC is the most common cause of death in hospitalized premature infants more than 2 weeks old.

NEC is diagnosed very early through a blood test, fecal test or X-ray.  NICU nurses and doctors watch for a swollen baby as well as other NEC symptoms.



Studies Show that Feeding Preemies Cow-Based Formula causes Necrotizing Enterocolitis

Premature infants have weaker digestive and immune systems than full-term babies.  When Premature infants get an intestinal infection, their immune and digestive systems have a hard time fighting it.

Studies have shown that there is a stark difference in the risk of necrotizing enterocolitis (NEC), its complications, and the need for surgery between babies who receive donor human milk (DHM) and those who get formula.

 The manufacturers of Enfamil and Similac were aware of the scientific consensus that human donor milk was a better alternative for preemies, yet these companies aggressively marketed their cow’s milk-based infant formulas to the exhausted parents of preemie babies both in the NICU and with continued marketing to parents when they leave the hospital.

NEC very rarely occurs before a baby has been fed. While the pathogenesis of NEC is not completely understood, It is unlikely that a preemie was born with this devastating condition.



NEC Prevention – Human Donor Milk

feeding a premature babyFeeding is a complicated skill, and premature babies get tired very quickly.  In addition, mothers of premature babies may not be able to produce breast milk immediately.  Human donor milk should be made available to all families of preemies.

NEC may be preventable simply by switching the diet of the premature baby.

It is estimated that a premature baby should eat 12-14 ounces of milk in the first few days.

At the cost of less than $2/ounce for brand-name formula, feeding a preemie baby may cost a family less than $30/day.  On the other hand, human donor milk costs between $3-$5/ounce to cover the collection, processing, and distribution costs.

Organizations like the Human Milk Banking Association of North America (HMBANA) connect mother “donors” to fragile infants that need the healing power of human milk.  HMBANA is also advocating for donor milk as a universal standard of care, regardless of the ability to pay.

Awareness about human milk banking and the healing power of donor milk should be shared with preemie parents. Instead, most newborn parents receive little information about human milk banks and instead receive care packages filled with free packages of formula.

Families must be provided with the truth about the formula provided to their preemie infants in order to make the right decision about their health. When families are not provided the full truth and they receive a diagnosis of this devastating disorder, we believe those responsible should be held accountable through the courts.



Toxic Baby Formula NEC Lawsuits

toxic baby formulaThe parents of children who were born prematurely and given Similac or Enfamil formula are currently filing lawsuits against the manufacturers of these formulas alleging the failure to warn about the risk of NEC, amongst other claims.  The plaintiffs are parents of newborns who were given the “toxic” cow’s milk-based formula shortly after birth.  These premature infants developed life-altering diseases and some died.

The plaintiffs claim that Abbott Labs and Mead Johnson, the manufacturers of the baby formula, marketed the infant formula as “medically endorsed” and “nutritionally equivalent” to mother’s breast milk.

Currently, the majority of these lawsuits are filed in state courts in Illinois, where both manufacturers maintain offices. There are also cases filed in the states where the infants were diagnosed.  We expect there will be many more of these cases filed as families become aware that they may qualify for inclusion in this product liability case.



Necrotizing Enterocolitis Settlements

While there is currently no discussion of settlements, it is likely the court will encourage the parties to discuss a settlement in the near future.  Settlements are often encouraged by courts so that families can have closure and spend their time caring for their loved one, in this case, an infant who has either passed or may be experiencing life-threatening complications, rather than spend their time in court.



The Necrotizing Enterocolitis Lawsuit is NOT a class action

The Necrotizing Enterocolitis lawsuits are being filed individually in state courts.  At some point, the court may decide to consolidate these cases into one court so that legal decisions can be made on behalf of all victims.  This is not a class action, at the point the court decides to consolidate these cases they would be considered “mass torts.”

Mass torts are not the same as class action suits, but they do share a few similarities, including: numerous people were harmed physically or financially and are taking legal action. Legal action is against the same common defendant(s) Individual legal action is consolidated into a single lawsuit.

Update for NEC Lawsuits

March 2023 Update for NEC Lawsuits

On March 8, 2023, a new study was released showing that there were no significant differences in the incidence of necrotizing enterocolitis between preterm infants who received an exclusive human milk diet and those who received bovine milk formula and fortifiers. The American Academy of Pediatrics recommends that preterm infants receive human milk, preferably their mother’s milk, and encourages the use of human milk fortifiers to provide additional nutrients to support growth and development.

On March 16, 2023, it was reported that 17 new pending cases were transferred into the infant formula NEC class action MDL over the last 30 days, bringing the total number of plaintiffs in the MDL up to 122. This marks the second-highest volume of new cases since the MDL began.