Similac NEC Baby Formula NEC Lawsuit
This page is about Similac NEC baby formula lawsuits. Our lawyers handle Similac lawsuits in all 50 states.
Our baby formula attorneys provide information on:
- how Similac (and Enfamil) causes NEC,
- the status of the new class action Similac NEC lawsuit in January 2023 and where this litigation will go
- potential settlement compensation amounts for Similac baby formula lawsuits for injuries and wrongful death for premature babies who suffered from NEC, and
- The Similac recall
This page provides the latest updates in the Similac baby formula litigation. Our lawyers believe you should be kept informed. The last baby formula claim update was on November 5, 2022.
Similac Lawsuits for Causing NEC in Premature Infants
Similac lawsuits have been filed around the country alleging that the popular cow-milk-based baby formula has caused many premature infants to develop a serious gastrointestinal infection called necrotizing enterocolitis (NEC).
Miller & Zois is currently investigating potential Similac lawsuits against the formula manufacturer, Abbott Laboratories, for failing to warn about the risks of NEC associated with Similac. Parents who bring a successful baby formula NEC lawsuit could receive significant financial compensation.
Below, our baby formula lawyers discuss potential settlement amounts for a Similac baby formula lawsuit involving NEC.
Similac Can Cause Increased Risk of NEC in Premature Infants
Similac is a very popular brand of infant formula that is made from cow milk and given to newborns as a substitute for human breast milk.
Medical research and clinical studies have established that giving cow milk formulas such as Similac to premature infants significantly increases their risk of a dangerous bowel infection called necrotizing enterocolitis (NEC).
NEC is a very serious bacterial infection in the gastrointestinal system of infants that can cause rapid decay and death of tissue in the baby’s inner intestinal walls. NEC can develop in the small or large intestine and the necrotizing infection originates in the inner lining of the intestinal walls and eventually impacts the entire thickness of the intestine.
NEC cases range in severity. Some cases of NEC can be very mild and cause only mild discomfort. A certain percentage of NEC cases are very severe and potentially life-threatening for the baby. NEC causes severe inflammation of the bowels and pain. If not immediately treated, serious cases of NEC can cause a perforation or hole to form in the intestinal wall as the tissue dies.
If NEC causes a perforation in the intestine, it can be very dangerous and possibly fatal for the baby. The perforation allows harmful bacteria from inside the intestine to leak out into the abdominal cavity. This can rapidly progress into a widespread internal infection and eventually cause a deadly bloodstream infection called sepsis.
The scientific evidence linking NEC to Similac dates back over 30 years. Recent research has conclusively confirmed that premature babies who are given Similac (or other cow-milk-based formulas) have a significantly higher risk of NEC compared to those who are fed with breast milk. Premature babies who are fed with a cow-milk formula such as Similac, are ten times more at risk for developing NEC than those fed with breast milk.
This has led the American Academy of Pediatrics and many other prominent public health organizations to strongly caution against feeding Similac or other cow milk formulas to premature infants.
The Manufacturer of Similac Deliberately Failed to Warn About the Risk of NEC
Similac is the brand name for a broad portfolio of Abbott infant formula products that it sells to provide nutrition to full-term infants, preterm infants, and infants with dietary restrictions. Some of these products are sold in retail stores but some are only available in a hospital setting.
The Similac brand of infant formula is manufactured and sold by Abbott Laboratories Inc. (“Abbott”). Abbott has been fully aware of the evidence linking Similac to higher rates of NEC in premature infants.
Despite being aware of this scientific evidence, Abbott has failed to include a warning label on their Similac products cautioning doctors and parents about the increased risk of NEC associated with Similac and premature infants. Every Similac baby formula claim will primarily focus on Abbott’s failure to warn.
Why? As a product manufacturer, Abbott has a legal obligation to warn about known risks and dangers associated with its product. Abbott has made a deliberate choice not to include any warnings about NEC on its product labeling for Similac, presumably to avoid any negative impact on the marketability of Similac. The battle of Similac vs. Enfamil is hard-fought. The first formula to provide an NEC warning will lose market share.
So Abbott’s failure to warn about NEC is the foundation for the legal claims in the Similac NEC baby formula lawsuits that are being filed against the company.
Listen, if this sounds like a plaintiffs’ lawyer old trope about big companies choosing profits over people, look at this Similac recall. It seems clear Abbott knew that its powdered baby formula was contaminated but it did nothing but let more children get sick and die.
Status of Similac Lawsuits
Lawyers are still in the early stages of litigation involving Similac and the increased risk of NED in premature infants. New Similac NEC lawsuits are being filed against Abbott in courts around the country. Our Similac baby formula attorneys are accepting new cases in all 50 states.
Every Similac lawsuit has asserted product liability claims against Abbott based on negligent failure to warn and strict product liability.
How Similac Class Action Lawsuit Works
As the NEC baby formula lawsuits continue to grow, all pending Similac lawsuits in the federal courts are consolidated into a new “class action” MDL (multi-district litigation) under Chief Judge Rebecca R. Pallmeyer in the Northern District of Illinois. So if you file your Similac lawsuit in federal court in California, Texas, New York, or any other state, your claim will be transferred to Illinois. As of August 2022, there are less than 100 lawsuits filed in the Enfamil and Similac class action lawsuit in federal court in Illinois. But that class action is expected to grow quickly.
MDLs in mass tort product liability litigation are similar to traditional class actions. The difference is the lawsuits remain separate and are only consolidated for pretrial discovery. But many of our clients will also file their Similac baby formula claim in Illinois where the law is favorable (and Abbott is headquartered).
Historically, a class action in meritorious cases with high damages and good evidence of the defendants’ responsibility is a pathway to a global settlement.
Where are we now in the MDL class action? NEC baby formula lawyers just provided the MDL judge with a proposed plan for the selection of a pool of 12 bellwether candidate cases. The idea is to figure out which NEC lawsuits should go to trial first. This is a big deal because these verdicts will be used to calculate Similac settlement amounts should the parties agree to a settlement. The lawyers will select a representative group of 12 cases. These cases will then go through a fact discovery phase, after which each side will get to select two out of the 12 for the first four bellwether test trials.
How Much Will Similac Lawsuits Be Worth in Settlement?
Lawyers are still in the very earliest stages of the Similac NEC litigation. None of the baby formula NEC lawsuits have been settled or gone to trial. This makes it very difficult to speculate on the potential settlement value of these cases involving Neosure and Pro-Advance and the other cow milk formulas made by Abbott for premature babies.
Our baby formula lawyers can project settlement amounts. How? By looking at settlement amounts and jury payout verdicts in recent medical malpractice lawsuits in which the primary injury was NEC in a premature infant. Is this a perfect way calculator for NEC settlement amounts? Of course not. But it is a step towards a better understanding of possible settlement compensation in these lawsuits.
That said, What Do You Expect Similac Baby Formula Lawsuit Settlement Amounts to Look Like?
The average verdict or settlement amount in the seven most recent malpractice lawsuits our lawyer found for NEC in premature infants was around $3.5 million. The median amount of money awarded in these 7 NEC cases was $1.3 million.
So our baby formula lawyers think the trial value is probably higher than this because Abbott – a huge company making a fortune from this product – is less sympathetic than doctors and nurses.
Settlement amounts of what will likely become a class action lawsuit are invariably lower than the trial value. So, with the caveat that it is early in these NEC baby formula lawsuits and there is still a great deal of information to be uncovered, our attorneys predict a per-person average settlement value of a Similac NEC lawsuit in the $300,000 to $800,000 range. Where a settlement would fall in that range will depend upon the severity of the baby’s injuries.
Example Similac Lawsuit
Shannon Hall, et al. v. Abbott Laboratories, 1:22-cv-00071 is an example of one of the more recent NEC infant formula lawsuits that have been getting filed in increasing numbers recently.
This Similac claim was filed in the Northern District of Illinois. The suit was filed by Shannon Hall on behalf of her deceased infant son, Eli Hall (“Baby Eli”).
Baby Eli was born prematurely, at 29 weeks gestation, at Wake Forest Baptist Medical Center in Winston Salem, North Carolina on November 27, 2019. From an age perspective, most Similac NEC lawyers are looking for cases in that 27-33 weeks gestational age range. Many of the most viable NEC lawsuits will be for these children.
After he was born, Baby Eli was sent to the NICU. For the first week, Eli’s mother pumped her breast milk for her baby’s nutrition and the NICU also supplemented this with donor breast milk when necessary to feed Eli.
On December 9, human milk fortifier was also added in the NICU to the mother’s breast milk/donor breast milk Baby Eli was ingesting. On December 20, Similac Special Care formula was added to supplement Baby Eli’s regular diet of breast milk and human milk fortifier. Baby Eli was fed Similac Special Care 30-calorie formula every three to four hours. Baby Eli was fed Similac Special Care at the hospital along with breast milk and human milk fortifier until January 6. Between December 20 and January 6, Similac Special Care formula made up roughly half of Baby Eli’s diet.
On January 6, Baby Eli displayed abdominal distension and other symptoms of NEC and was evaluated by a pediatric surgeon. The next day, Eli developed severe metabolic acidosis and was diagnosed with Stage III NEC. Emergency laparotomy surgery was performed, and it was determined that Baby Eli could not be saved. Eli died on January 7, 2020.
The wrongful death lawsuit in Hall sets forth three basic causes of action against Abbott Laboratories based on theories of defective design and failure to warn. Like every NEC formula lawsuit, the primary theory of liability rests on Abbott’s refusal to put any type of warning label on their Similac formula products about the risk of NEC in premature infants.
Federal Similac Class Action Lawsuit for NEC
There are several NEC class action lawsuits for Similac. The first is a federal MDL NEC class action lawsuit that includes both Enfamil and Similac. This MDL class action is now underway (In re: Abbott Laboratories, et al., Preterm Infant Nutrition Prod. Liab. Lit.- MDL No. 3026). The MDL judge is Judge Rebecca Pallmeyer in the North District of Illinois.
On May 19, 2022, Judge Pallmeyer held the initial status conference in the MDL and heard nominations for leadership appointments. Within the next week or so, Judge Pallymeyer is expected to announce her selections for plaintiffs’ NEC lawyers for Lead Counsel and Liaison Counsel appointments. There are 52 NEC formula cases already pending in the new MDL. The number of NEC class action lawsuits in the MDL could triple by next month.
These Similac NEC lawsuits are consolidated now under Judge Pallmeyer. So if you file a lawsuit in Texas, New York, California, Michigan, or any other state in federal court, the case will be transferred to Judge Pallmeyer in Illinois.
The Similac lawsuits continue to move forward. In early 2023, there is going to be a science day in the NEC infant formula MDL. The science day will enable both sides to make presentations intended to educate the MDL Judge on the relevant scientific evidence. Judge Pallymeyer is expected to set a date for the science day at her next status conference in January 2023.
Similac NEC Class Action Lawsuit in Illinois State Court
A large number of NEC infant formula lawsuits have been filed in Illinois state courts because both primary defendants (Abbott Laboratories & Mead Johnson) are based in the Chicago area. These lawsuits were most filed before the federal class action.
Lawyers for many of these plaintiffs filed a motion asking the Supreme Court of Illinois to consolidate all pending NEC lawsuits into a single baby formula class action lawsuit in Madison County.
Both companies ultimately agreed to consolidation because it would be much more cost-efficient than defending 30 separate cases simultaneously.
NEC State Court Class Action Similar to Federal MDL
What does this mean? Illinois has favorable law for victims claiming injuries like NEC. Just like the MDL class action, many lawyers with cases outside of Illinois may still file a Similac formula lawsuit in that state even if the claim originated in California, New York, Texas, or any other jurisdiction.
Why not just file an NEC federal court class action? There are tactical reasons for Similac attorneys to make different choices as to where a particular NEC Similac lawsuit should be filed.
- How does an MDL class action work?
Is There a Similac Recall?
There is also a Similac recall class action. This is not the NEC litigation. It is based on the Similac recall on February 18, 2022. This recall is for Similac, EleCare, and Alimentum manufactured in Sturgis, Michigan. This Similac recall comes on the heels of reports of Cronobacter sakazakii or Salmonella Newport in infants who had consumed these baby formula products made at the Michigan facility.
So there is a Similac recall class action lawsuit that has been filed seeking essentially refunds of the purchase price for thousands (or millions) of unnamed consumers who bought potentially contaminated Similac.
A named plaintiff in one of these class action Similac recall cases in California recently filed a motion asking the JPML to consolidate all other Similac recall cases into a new MDL. The motion was filed last month, and it identifies eighteen Similac recall lawsuits pending around the U.S. sixteen of these Similac recall cases are consumer class-actions and only two are product liability cases alleging physical injuries.
In late May 2022, Robert Califf, Commissioner of the FDA, testified before Congress regarding the Similac formula recall and shutdown of the Abbott Laboratories manufacturing facility in Sturgis, MI. The shutdown of the Abbott facility and related recall of Similac formula has accelerated the national shortage of infant formula in the U.S. which has recently generated national news coverage. Califf’s testimony offers details on the numerous sanitary problems at the Abbott facility in Michigan that led to the shutdown of the plant. The whole thing is a mess and Abbott’s CEO is not denying mistakes were made.
Abbott Will Want to Settle These Similac Lawsuits
Our lawyers believe that Abbott will over reasonable settlement amount for serious injury and wrongful death cases involving the recall. (We also think that the public seeing baby formula makers put profits over children will also increase future settlement amounts in the NEC formula lawsuits against Abbott and Mead.)
Our baby formula Similac lawyers are also handling Similac recall lawsuits for victims who have suffered physical injuries from bacterial infections from the contaminated formula.
- Video on the Similac recall
- More on the formula recall lawsuit
- New 2023 Litigation: Tylenol autism lawsuit
Defense in NEC Similac Baby Formula Lawsuits
Abbott’s lawyers understandably do not want Similac formula claims to go to a jury. So they are crafting legal arguments to try to prevent victims from having their day in court. Abbott’s two big arguments are preemption and learned intermediary.
Abbott will argue that the plaintiffs’ Similac NEC lawsuits are preempted by federal law under the Infant Formula Act (“IFA”) 20 U.S.C. § 350a. The IFA is a federal law that comprehensively regulates how infant formula is made and its product labeling. It also requires infant formula products to undergo an FDA review process before being sold.
Abbott claims that the tort law claims in the NEC lawsuit are preempted by the IFA because “it would be impossible to comply with both state and federal requirements.” Specifically, Abbott argues that preemption law precludes the plaintiffs’ claim that Similac was defectively designed. Abbott asserts that it went through the FDA review and approval process required by the IFA which included consideration of whether cow milk is safe as an ingredient.
The reality is that Abbott is used to losing this argument in drug lawsuits and the Infant Formula Act and our baby formula lawyers have never seen a single case where there was preemption in a baby formula lawsuit.
Abbott will also contend that the plaintiffs’ claims based on failure to warn of the risk of Similac are barred by what is called the learned intermediary doctrine. This argument is that Abbott has no legal obligation to warn the parents because under the learned intermediary rule the duty to warn belonged to the child’s doctors.
This argument may be technically correct for some of the Similac formulas that were only available in a hospital setting. Many NEC formula lawsuits involve these products. But Abbott still had a duty to warn doctors of the NEC danger with its infant formula. So this legal argument will likely go similarly nowhere.
Contact Our Similac NEC Lawyers Today
The product liability lawyers at Miller & Zois are seeking Similac NEC lawsuits from parents of premature infants who were fed with Similac (or another cow milk-based formula) and subsequently developed NEC.
Call a Similac lawyer to talk about how we can help your family fight for compensation at 800-553-8082 or get a free online case evaluation.