If you have a premature infant who was seriously harmed by baby formula made with cow’s milk, you may have grounds for a lawsuit. Although there is not currently a class action suit pending, hundreds of families across the country have filed suit against two baby formula manufacturers. These cases allege that the manufacturers failed to warn parents and medical providers that these cow’s milk-based formulas could lead to a serious gastrointestinal disorder known as necrotizing enterocolitis (NEC) in premature babies.
What Is Necrotizing Enterocolitis?
According to the National Institutes of Health (NIH), necrotizing enterocolitis is both the most serious and the most common gastrointestinal disorder in newborns. It is more likely to occur in those that are born prematurely. The condition causes the intestinal lining to become inflamed, die, and potentially slough off. Bacteria can enter the bloodstream, leading to a potentially life-threatening infection, and the intestines can become scarred, making it difficult or impossible to digest food. NEC typically occurs within the first two to three weeks of a premature infant’s life.
Symptoms of necrotizing enterocolitis include:
- Abdominal bloating or swelling
- Poor feeding tolerance
- Pain when the abdomen is touched
- Bloody stools
- Bluish or reddish marks on the stomach
- Vomiting, often greenish-yellow in color
- Low heart rate or breathing rate
If the condition advances, a hole in the intestinal wall could develop and the baby could go into shock. This is an emergency condition that requires surgical repair. The infant may also need to be placed on a respirator. In up to 40% of cases, NEC can be fatal.
How Do Premature Infants Develop NEC?
Although full-term infants can also develop necrotizing enterocolitis, it is far more common in those who are premature. This is believed to be due to their immature digestive systems, which are less able to resist harmful bacteria and other agents than those of full-term babies. There are many factors at play, but an increasing body of research dating back to at least 1990 shows that formula-fed infants are at greater risk for this condition.
It’s common for preterm babies to spend several days or weeks in the hospital, where they may be fed formula. You might also have given your baby formula after bringing them home.
Which Baby Formulas Are Involved?
The lawsuits specifically target two baby formula manufacturers: Mead Johnson, the manufacturer of Enfamil, and Abbott Laboratories, the manufacturer of Similac. Despite the risks, both manufacturers have promoted their cow’s milk-based formulas as safe and healthy for premature infants. Product labeling does not carry any warnings about NEC as a potential side effect.
There are numerous specific products named in existing lawsuits. These include, but are not limited to:
- Enfamil Enfacare Powder
- Enfamil Human Milk Fortifier
- Enfamil NeuroPro Enfacare
- Enfamil Premature
- Similac Alimentum Expert Care
- Similac Human Milk Fortifier
- Similac NeoSure
- Similac Special Care
Is There a Recall?
As of April 2022, there is no current recall on any of these formula products, and there has never been a recall due to NEC. You may have heard of a couple of previous recalls for tampering or potential bacterial contamination, but these were time-limited and are not part of the current lawsuits. It is impossible to say at this time whether the manufacturers may eventually issue a voluntary recall of any of these products.
Toxic Baby Formula Lawsuits
Similac litigation is still in the early stages, with new lawsuits being filed against Abbott in courts across the United States. These suits are based on strict product liability and negligent failure to warn. As plaintiffs continue to file NEC baby formula lawsuits against Abbott, all pending Similac cases in federal court will be consolidated into a “class action MDL” (multidistrict litigation) under Chief Judge Rebecca R. Pallmeyer in the Northern District of Illinois. This means that regardless of the state where you file your case, your claim will be transferred to Illinois.
In mass tort product liability litigations, MDLs are similar to traditional class-action lawsuits. While none of the baby formula NEC lawsuits have gone to trial or been settled yet, historically, solid cases with high damages and clear evidence of the defendants’ responsibility have led to global settlements.
There's also the potential for state court cases to be consolidated into a single baby formula class-action lawsuit in Madison County since both Abbott Laboratories & Mead Johnson are based in the Chicago area. As of this writing, the Illinois Supreme Court has yet to rule on consolidation requests. However, if granted, this could be advantageous as the state of Illinois has favorable laws for victims claiming injuries like NEC.
Who Is Eligible to File Suit?
If your premature infant developed necrotizing enterocolitis after being given Enfamil or Similac formula in the hospital, or after you fed them with one of these formulas at home, you might have grounds for a lawsuit. Remember that evidence is key in proving your claim, so it’s important to keep receipts and/or packaging if you gave your baby formula at home.
If you believe your infant received formula in the hospital, you might be able to find out by contacting a hospital caseworker. If the hospital is reluctant to release this type of information, your attorney may be able to help you get to the bottom of it.
What Type of Compensation Is Available?
Compensation is a highly individual matter, as it depends so much on your particular circumstances. However, some common types of compensation may include:
- Past, present, and future medical bills related to your baby’s NEC, including medications and various therapies
- Loss of future earning capacity if your infant is expected to have lifelong consequences
- Lost income if you had to miss work due to your baby’s illness
- Pain and suffering for your baby
- Emotional distress for both you and your infant
- Punitive damages, which are designed to punish the manufacturer for negligence
Figuring out compensation, especially non-financial losses, can be complicated. And it’s not unusual in this type of case to be offered a settlement that may or may not be reasonable. You need a skilled, experienced attorney to fight for every dollar you deserve.
How Can I Get Started?
Proving this type of claim is never easy. Manufacturers have powerful attorneys fighting for them. You will need an equally skilled attorney who is familiar with these types of cases to ensure that your rights, and your baby’s rights, are protected. Your attorney will guide you through every step of the process, from gathering documentation to helping you understand the future losses that you and your infant might incur.
The first step is to make an evaluation of your claim and decide whether a lawsuit is the best course of action for you to follow. Gather all the evidence you have, from a written copy of your baby’s necrotizing enterocolitis diagnosis to any formula receipts or packaging you can find. If you are unsure whether your infant received one of these products in the hospital, be sure to include the hospital’s name and location. Submit your claim, along with the evidence, for a free case evaluation.
NEC Lawsuit Attorneys
At Cooney & Conway, we have the experience and compassion to guide you through the process of receiving compensation for your premature infant’s necrotizing enterocolitis. To get started, fill out our free case evaluation today.