The American Academy of Pediatrics (AAP) recommends breast milk as the best nutrition for infants. But what's best is not always possible. In some situations, health care providers recommend infant formulas and human milk fortifiers (nutritional boosters) for babies who are born prematurely (before 37 weeks) or with other health complications.
Most babies tolerate formula well. But some formula-fed babies, particularly premature babies who are fed cow's milk-based formulas, develop a life-threatening gastrointestinal disease called NEC. Starting in January 2020, dozens of parents of premature infants have filed baby formula lawsuits against Mead Johnson (makers of Enfamil) and Abbott Laboratories (makers of Similac) for NEC-related harm caused by their popular formulas.
Read on for more about the link between infant formula and NEC, the growing number of infant formula lawsuits, and a breakdown of how much an infant formula lawsuit might be worth.
Necrotizing enterocolitis—or NEC (pronounced "neck")—is a life-threatening gastrointestinal disease in newborns. Any newborn can get NEC, but it's most common in very sick or premature babies.
NEC develops when a baby's large intestine is damaged by inflammation. Bacteria can leak out from the damaged intestine, causing infection, scarring, growth restriction, and death. Treatment for severe NEC might include a nasogastric tube, intravenous (IV) medication, and surgery to remove the damaged intestine.
Enfamil and Similac are the cow's milk-based formulas most commonly fed to premature babies in neonatal intensive care units (NICUs) all over the country.
As of late 2021, the U.S. Food and Drug Administration (FDA) hasn't recalled Enfamil or Similac formulas over links to a baby's risk of developing NEC. (Recalls are actions to remove an unsafe product from the market.) Most plaintiffs in infant formula lawsuits claim that Mead Johnson and Abbott Laboratories failed to warn doctors and parents of potential dangers associated with the products, not that the products are inherently dangerous and need to be removed from the market.
The first infant formula lawsuits were medical malpractice claims. These lawsuits typically alleged that parents weren't able to give informed consent to let health care providers feed their babies cow's milk-based formulas, because the providers didn't warn them of the increased risk of NEC. In response, many health care providers tried passing the proverbial buck, arguing that formula manufacturers didn't inform them of the NEC risks.
Some parents and guardians (called "plaintiffs" in court) are still filing individual medical malpractice claims against medical professionals and hospitals. But a growing number of plaintiffs are shifting the blame to the manufacturers of the formulas. The targeted products include, but are not limited to the following:
As of November 2021, NEC-related product liability lawsuits are pending in federal courts in Connecticut and California. An ever-growing number of infant formula lawsuits against Mead Johnson and Abbott Laboratories are pending in Illinois (where Enfamil and Similac are manufactured) and in other states like Florida and Georgia. If enough plaintiffs file product liability lawsuits against Mead Johnson and Abbott Laboratories, their cases could be consolidated into multi-district litigation (MDL), a process that centralizes pre-trial steps and encourages settlement.
Most NEC-related product liability lawsuits are still in the early stages. As of late 2021, no settlement agreements or jury verdicts are publicly available, so it's hard to put an exact dollar figure on these cases. But here are the common types of compensation (damages) plaintiffs are seeking in infant formula lawsuits.
Plaintiffs who win or settle their cases want compensation for any NEC-related medical care, whether it be past, ongoing, or future care.
Plaintiffs also want compensation for "pain and suffering" (physical and mental) caused by NEC-related injuries and treatment. Mental pain and suffering includes emotional distress, loss of enjoyment of life, fear, anger, anxiety, and other negative effects.
Plaintiffs want compensation for lost income and diminished earning capacity. For example, parents who took time off from work in order to care for their child might ask for compensation for that lost income. A child with a permanent NEC-related disability will ask for lost future earnings.
In some states, parents can ask for "loss of consortium" damages, or compensation for the intangible benefits (care, nurturing, and affection) that the injured child provides the family. Historically, only a husband had a right to sue for interference with his relationship with his wife's services and physical and emotional affection and comfort. But a growing number of states allow parents to recover loss of consortium damages when a child is seriously injured or disabled.
When a baby dies from NEC, wrongful death and survival laws allow survivors to receive compensation for damages, like funeral and burial costs, the deceased person's pre-death pain and suffering, medical treatment costs prior to death, and potentially a portion of the deceased person's expected income, among others.
If your premature baby was given Enfamil or Similac and then developed NEC, you probably have a lot of questions about whether your baby's NEC could or should have been prevented. Talk to a lawyer about your options right away. A lawyer can explain the "statute of limitations" deadline for filing lawsuits in your state.
Websites like Nolo.com offer reliable legal information and free case evaluations from qualified lawyers in your area. You can learn more about finding an attorney for your infant formula lawsuit or contact a personal injury lawyer today.