NEC Baby Formula Lawsuits: Will 2024 be Year of Settlements?

For a significant part of human history, babies were fed their mother’s milk. In cases where this was not possible, society relied on the practice of hiring a wet nurse. Wet nursing dates back to 2000 B.C. However, it became highly popular during the 19th and early 20th centuries.

These nurses were primarily hired by upper-class families (because breastfeeding was considered to be unfashionable). Today, mothers have various valid reasons for not choosing the breastfeeding route.

The Centers for Disease Control and Prevention (CDC) states some of the common reasons are lactation issues, problems with latching, traumatic birth experiences, and medication. Commercial baby formulas have become the modern bulwark against nutritional deficiencies.

However, many believe that these formulas lack proper nutrition and may even affect the baby’s health/growth. One such concern has been regarding the rising cases of Necrotizing Enterocolitis or NEC among infants fed with commercial baby formulas. Parents have gone as far as filing a lawsuit against formula manufacturers.

In this article, we will discuss this litigation and understand whether settlements are on the horizon.

Why is the NEC Lawsuit Being Filed?

The NEC lawsuit is an active litigation in the Federal court, filed by parents of injured infants. It is essentially being filed against manufacturers of commercial baby formulas like Enfamil and Similac – Mead Johnson and Abbott Laboratories respectively.

The main premise of the litigation is that babies fed with these companies’ formula-based milk developed necrotizing enterocolitis. It is considered to be the most common and serious gastrointestinal condition among newborn babies.

In general, NEC tends to affect infants who are premature or have a low birth weight. In this disease, the baby’s small or large intestine tissues get inflamed. According to the Cleveland Clinic, the condition may lead to a perforation or hole in the intestinal lining.

This opens the way for bacteria to leak and cause severe abdominal infections. Infants may need to depend on IV feedings or require surgery to remove the damaged organ. A major problem with this injury is the population it affects.

Since preterm babies are already underdeveloped, weak, and struggling to survive, many succumb to the injuries and die. Of those who survive, they may likely suffer from long-term complications due to the NEC.

Parents filing the NEC lawsuit have alleged that the formula manufacturers were aware of the risks involved. However, they continued to market their products as safe and effective, going as far as targeting vulnerable mothers. None of them were made aware of the risks and offered alternatives like a human milk bank.

Criteria for Filing an NEC Lawsuit

If a parent wants to file an NEC lawsuit (for which they wish to know the criteria for filing), it is best to consult an experienced attorney. They will assess the individual case and determine if the same is eligible for filing.

In any case, there is a general criterion that must be kept in mind. The parent must have an infant who was fed with commercial baby formula (either Enfamil or Similac). Plus, they must also prove that their baby developed NEC after being fed the said formula.

According to TorHoerman Law, the consumption of the aforementioned baby formulas, as well as the infant’s NEC diagnosis will help establish the negligence and causation. These are two critical elements for legal justice in an NEC infant formula lawsuit.

Where Has the Litigation Moved So Far?

The commercial baby formula lawsuit is not a very recent litigation. The same was consolidated into a class-action multi-district litigation (MDL) back in January 2022. In the same year, the American Academy of Pediatrics (AAP) issued new guidelines for parents.

It stated that commercial baby formulas must be avoided entirely for new babies. Even hospitals were urged to discontinue the promotion of baby formulas and emphasize breastfeeding instead. The MDL gained steam for the rest of the year, and cases had been identified for Bellwether trials by November 2022.

In 2023, a study revealed the depressing results that NEC cases were more common among Black infants than their white counterparts. This highlighted the class disparities and inability to access human donor milk. Even until mid-2023, only 166 cases were present in the MDL.

The pace was slowing down by October 2023 as only 275 cases were pending. The very next month (in November 2023), four critical cases were chosen for the upcoming Bellwether trials. These cases involved infant deaths and severe health complications.

Starting in 2024, the litigation has again picked up pace. The latest NEC lawsuit update is that 450 cases are awaiting settlements in the MDL for trial. It is expected that the trials will begin sometime in the first half of this year.

The plaintiff’s counsel is unable to provide clear settlement amounts for individual cases right now. Once the trials are over and the jury verdicts are out, attorneys will have a better idea of individual payouts.

Given how serious the NEC litigation is, people are speculating whether baby formulas will be taken down from the shelves. The answer to that is complicated mainly because these products have not been recalled yet.

Moreover, infant formulas have become such a crucial part of modern-day infant feeding that completely taking them out can lead to a different kind of fiasco. Even human milk banks are unprepared to handle the current demand for donor milk (in case formula production shuts down).

Would a product recall be ideal? Yes, at least in the case of Similac and Enfamil formulas. But, with that not happening anytime soon, parents must avoid formulas for newborns and consider feeding them safer alternatives like human donor milk.