NEC Lawsuit | Toxic Baby Formula Attorneys

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, while a normal pregnancy generally lasts up to 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

What Is Necrotizing Enterocolitis; NEC Baby Formula Symptoms Include; Studies Show That Feeding Preemies Cow-Based Formula Causes Necrotizing Enterocolitis; NEC Prevention – Human Donor Milk; Toxic Baby Formula NEC Lawsuits; Necrotizing Enterocolitis Settlements; The Necrotizing Enterocolitis Lawsuit Is NOT A Class Action

Premature 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.

Table of Contents

Lawsuit Updates

  • December 2023 Updates:

    December 1st, 2023:

    The NEC preterm infant formula MDL currently has 290 pending cases, with an additional 15 new cases added in the past month. The total number of cases awaiting resolution in the MDL continues to grow, reflecting an ongoing trend.

  • November 2023 Updates:

    November 1st, 2023:

    U.S. District Judge Rebecca R. Pallmeyer has designated four pivotal “bellwether” cases for trial to gauge potential jury responses to the evidence presented. Among these cases, two involve both Abbott Laboratories, the creators of Similac, and Mead Johnson, the manufacturers of Enfamil, as defendants.

    One case solely names Mead Johnson, and another exclusively implicates Abbott Laboratories. Three of these legal actions revolve around wrongful death claims attributed to NEC resulting from the consumption of these infant formulas.

    One case details an infant who survived NEC but suffered severe complications requiring multiple surgeries. These trials are projected to commence in 2024, and their outcomes are expected to significantly impact settlement payouts in the NEC class action.

  • October 2023 Updates:

    October 2nd, 2023:

    The Judge in the NEC infant formula MDL has approved a motion by the plaintiffs to extend the deadline for selecting bellwether cases for the initial round of test trials. This extension suggests that the first bellwether trials may now take place late next year.

  • September 2023 Updates:

    September 19th, 2023:

    The plaintiffs’ motion to extend the deadline for bellwether case selection and to conclude fact discovery has received a mixed response, with some aspects granted and others denied.

    Attorneys from NEC have been directed to prepare a jointly approved order that details the adjusted timeline for discovery.

    Additionally, they have been assigned the responsibility of coordinating with the courtroom deputy to set a date for the upcoming status hearing, which may be conducted either in-person or virtually.

    The size of the NEC infant formula MDL has grown significantly, tripling in volume since the start of 2023, when it contained fewer than 100 cases.

  • August 2023 Updates:

    August 21st, 2023:

    A new wrongful death lawsuit, Rowe v. Abbott, has been added to the MDL class action regarding NEC.

    The case involves a child born prematurely in 2007 in Maricopa County, Arizona, who developed NEC after being given Abbott’s cow milk-based formula in the NICU and tragically passed away.

    The lawsuit alleges that Abbott failed to provide adequate warnings and guidelines for their cow-based milk products intended for preterm infants, putting the responsibility on the company to inform healthcare providers and NICU staff about the associated risks, including NEC, when used with preterm infants.

    August 17th, 2023:

    The class action lawsuit against NEC Premature Formula has experienced significant growth this year. An additional 14 cases were added last month, raising the total number of pending cases to 205. If this rate of expansion persists, it is anticipated that there could be approximately 300 cases by year-end, with the possibility of reaching 400 by the commencement of the first bellwether trials.

  • July 2023 Updates:

    July 1, 2023:

    Hayes v. Mead Johnson & Co, LLC, et al. has been recently transferred into the NEC infant formula class action MDL.

    The case, initially filed in the Southern District of Indiana, involves the use of Enfamil Premature 24 formula, a cow’s milk-based product manufactured by Mead Johnson.

    The Plaintiff’s was born very prematurely at 23 weeks, and experienced gastrointestinal distress after consuming the formula multiple times in his first month of his life.

    This led to a diagnosis of necrotizing enterocolitis and subsequent surgical intervention, leaving him with ongoing complications.

    July 11th, 2023

    The statute of limitations poses a challenging aspect in NEC lawsuits and poses a contentious issue in certain cases.

    One such instance is observed in NEC baby formula lawsuits in California state court, where Judge Ethan P. Schulman of the San Francisco Superior Court has granted “preliminary approval” to Abbott’s motion to dismiss sixteen lawsuits.

    The judge allows parents the opportunity to amend and refile their complaint, but this process may lead to a second legal battle.

    Plaintiffs’ lawyers argue that the two-year period to submit their complaints should commence only from the discovery of the alleged issues with the formula.

    July 18th, 2023

    the NEC infant formula class action MDL received an additional 11 new cases in the past month, bringing the total number of pending cases to 191.

    This marks a significant increase from the 90 pending cases at the beginning of the year.

  • June 2023 Updates:

    June 16th, 2023:

    Abbott Laboratories, LLC is facing a lawsuit from a New York mother who alleges that the use of Similac “Human Milk Fortifier” resulted in her premature child developing necrotizing enterocolitis (NEC).

    Despite the product being marketed as a “Human Milk Fortifier,” it still contains cow’s milk.

    The lawsuit alleges Abbott has orchestrated a deliberate, influential, and deceptive marketing campaign designed to mislead parents into believing that its formula and fortifier products were unharmful replacements for breast milk.

    This particular lawsuit will join other similar cases from various jurisdictions, as part of a comprehensive multidistrict litigation (MDL) centered on baby formula.

    U.S. District Judge Rebecca R. Pallmeyer, based in the Northern District of Illinois, will preside over the consolidated proceedings.

  • May 2023 Updates:

    May 1st, 2023:

    In the NEC formula class action MDL, e-discovery plays a crucial role as plaintiffs require access to electronically stored emails, business communications, and other relevant data.

    Mead and Abbott, being large companies involved in the litigation, have custodians of records responsible for providing the necessary information.

    Due to the complexity of mass tort litigation involving scientific and liability issues, courts typically allow more than 100 witnesses.

    In this case, plaintiffs’ lawyers requested 65 witnesses.

    Throughout the lawsuit, the lawyers have been working diligently to complete discovery in a timely manner, including obtaining electronic discovery from the defendants’ employees.

    After negotiations, a deal was reached with Abbott for an additional 45 custodians, while Mead did not agree.

    As a result, plaintiffs’ attorneys have filed a motion seeking court intervention to address this issue.

    May 15th, 2023:

    Over the past month, nine new lawsuits have been transferred into the NEC formula class action MDL, alleging that infant formula caused necrotizing enterocolitis (NEC) in premature babies.

    This brings the total number of pending cases in the MDL to 166.

    The consolidation of these cases allows for more efficient handling of the litigation related to NEC and infant formula.

  • April 2023 Updates:

    Lawsuits are still being filed against companies manufacturing baby formula.

    If you or someone that you know has a child that was diagnosed with NEC, then you may be eligible for compensation through an NEC lawsuit.

    Contact a lawyer today for a free consultation.

  • March 2023 Updates:

    March 8th, 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.

    March 16th, 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.

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.

What Is Necrotizing Enterocolitis

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:

What Is Necrotizing Enterocolitis; NEC Baby Formula Symptoms Include

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.

Sadly, 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.

crying baby in hospital

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.

What Is Necrotizing Enterocolitis; NEC Baby Formula Symptoms Include; Studies Show That Feeding Preemies Cow-Based Formula Causes Necrotizing Enterocolitis

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

What Is Necrotizing Enterocolitis; NEC Baby Formula Symptoms Include; Studies Show That Feeding Preemies Cow-Based Formula Causes Necrotizing Enterocolitis; NEC Prevention – Human Donor Milk

Feeding 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.

feeding a premature baby

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

What Is Necrotizing Enterocolitis; NEC Baby Formula Symptoms Include; Studies Show That Feeding Preemies Cow-Based Formula Causes Necrotizing Enterocolitis; NEC Prevention – Human Donor Milk; Toxic Baby Formula NEC Lawsuits

The 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.

toxic baby formula

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.

What Is Necrotizing Enterocolitis; NEC Baby Formula Symptoms Include; Studies Show That Feeding Preemies Cow-Based Formula Causes Necrotizing Enterocolitis; NEC Prevention – Human Donor Milk; Toxic Baby Formula NEC Lawsuits; Necrotizing Enterocolitis Settlements

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.”

What Is Necrotizing Enterocolitis; NEC Baby Formula Symptoms Include; Studies Show That Feeding Preemies Cow-Based Formula Causes Necrotizing Enterocolitis; NEC Prevention – Human Donor Milk; Toxic Baby Formula NEC Lawsuits; Necrotizing Enterocolitis Settlements; The Necrotizing Enterocolitis Lawsuit Is NOT A Class Action

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.

Written By:
Jessie Paluch
Jessie Paluch

Experienced Attorney & Legal SaaS CEO

With over 25 years of legal experience, Jessie is an Illinois lawyer, a CPA, and a mother of three.  She spent the first decade of her career working as an international tax attorney at Deloitte.

In 2009, Jessie co-founded her own law firm with her husband – which has scaled to over 30 employees since its conception.

In 2016, Jessie founded TruLaw, which allows her to collaborate with attorneys and legal experts across the United States on a daily basis. This hypervaluable network of experts is what enables her to share reliable legal information with her readers!

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