NEC Baby Formula Recall Lawsuit Update

As legal issues mount, many of the claims regarding baby formula’s link to a serious gastrointestinal disease are headed to an Illinois federal court.

Hundreds of families throughout the U.S. are pursuing a Similac NEC lawsuit against Abbott Laboratories and/or an Enfamil NEC lawsuit against Mead Johnson, each raising similar allegations that the companies marketed their cow’s milk baby formula for use among premature infants without disclosing the risk that it may lead to a devastating and life-threatening gastrointestinal disease.

In a related development, a federal judge remanded approximately thirty baby formula NEC lawsuit cases to state court. These actions included a hospital or doctor as a defendant.

Baby Formula Recall and NEC

Powdered baby formula is very similar to powdered cow’s milk.

A milk allergy is like any other food allergy – it could cause a life-threatening anaphylactic reaction. Lactose intolerance, on the other hand, is an inability to digest one of the primary sugars in milk and is hardly ever life-threatening

Necrotizing Enterocolitis (NEC) is basically a combination of both these conditions. Young babies, especially premature ones, have underdeveloped digestive tracts and cannot easily digest cow’s milk. NEC is an inflammation of intestinal tissues so severe that it perforates a baby’s intestine. As a result, bacteria can leak into the abdomen or bloodstream. NEC usually develops within two to six weeks after birth. The different types of this disease are:

  • Classic: This most common type of NEC tends to affect infants born before 28 weeks of pregnancy. Classic NEC occurs three to six weeks after birth. In most instances, the condition comes on suddenly, without warning.
  • Transfusion-Associated: An infant may need a blood transfusion to treat anemia (lack of red blood cells). About 1 in 3 premature babies develop NEC within three days of getting a blood transfusion.
  • Atypical: Rarely, an infant develops NEC in the first week of life or before the first feeding.
  • Term Infant: Full-term babies who get NEC usually have a birth defect. Possible causes include congenital heart condition, gastroschisis (intestines that form outside of the body), and low oxygen levels at birth.

NEC is one of the most common premature baby complications. It affects about one in every 1,000 preemies. In other words, in a large New York hospital, at least one or two babies a month often contract this disease.

Despite this high number, many doctors either don’t intervene in these cases or, even worse, allow NEC babies to go home early. That’s especially true if a baby develops this condition when they are more than a month old. Babies develop so rapidly that many doctors dismiss NEC in older babies as a “borderline” risk. 

Therefore, doctors are more likely to give in to financial pressure from an insurance company not to aggressively treat these babies. Alternatively, many doctors give in to emotional pressure from a family who wants to go home after a month in the hospital. This added dimension could create procedural issues

Failure to Warn

There’s evidence that Enfamil, Similac, and other baby formula manufacturers knew about the risk of NEC, but these companies failed to adequately warn families about this elevated risk. This failure clearly violates a company’s duty of care. This legal responsibility includes a requirement to adequately warn consumers about all possible risks.

Not just any warning will do. Under New York law, the warning about possible side effects must be clear and proportionate. 

Primarily, the warning must be in a language consumers understand. This requirement means little or no Medspeak on the label. This requirement also means the warnings must be readily available in languages other than English.

Additionally, the warning must be proportionate to the threat. Serious side-effects, like NEC, must usually be in bold letters or otherwise prominently displayed on the label. Manufacturers cannot bury something like necrotizing enterocolitis on a long list of possible side effects, like mild dry mouth or constipation.

The Consumer Product Safety Commission (CPSC) lays out these and other labeling requirements. The CPSC rules establish the standard of care in this area, and a violation of this standard is evidence of negligence. If negligence caused injury, the company is legally responsible for damages.

These damages usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

State vs. Federal Court

Federal courts usually have jurisdiction over complete diversity cases (lawsuits exclusively between citizens of different states). No complete diversity usually means a state court has jurisdiction over the matter.

Some courts relaxed this rule in the wake of the 2008 mortgage crisis. Mortgage companies and brokers prompted an avalanche of lawsuits. The mortgage companies almost always immediately asked state court judges to send these matters to federal court. That move deprives victims/plaintiffs of the home-field advantage they enjoy in state courts.

Many judges have closed this loophole. If all relevant activities happened in the same state, state court judges may be able to retain jurisdiction.

Removal (transfer from state to federal court) isn’t necessarily a bad thing. Courts send most mass tort claims to a single Multi-District Litigation site. A single judge oversees all pretrial matters. This oversight often expedites the settlement process.

Injury victims are entitled to substantial compensation. For a free consultation with an experienced New York personal injury attorney, contact Napoli Shkolnik PLLC. We handle NEC baby formula matters on a nationwide basis.