Judge Grants Summary Judgment to Abbott in First Baby Formula NEC Bellwether
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In a win for baby formula manufacturers, the first bellwether trial over claims that certain formulas could cause a serious health condition will no longer take place.
Judge Rebecca Pallmeyer, who is overseeing hundreds of baby formula lawsuits that claim some formulas are tied to necrotizing enterocolitis (NEC) in premature infants, granted summary judgment to Abbott Laboratories on Friday. This legal procedure, where a judge can grant a victory to one side of a lawsuit without holding a trial, gives Abbott a key win in the baby formula litigation.
Before summary judgment was granted, this case was set to be the first of a group of four federal bellwether trials to take place and serve as test cases for the wider litigation.
In her order, Judge Pallmeyer said that she opted to grant summary judgment because the lawsuit had failed to demonstrate Abbott’s alleged failure to warn of an increased NEC risk from its Similac Special Care formula.
The case involved infant RaiLee, who was born 12 weeks premature in 2014. The infant was intravenously fed her mother’s milk for the first four days of her life before being switched to a mixed feeding schedule of both breastmilk and formula.
RaiLee was diagnosed with NEC, where intestinal tissue dies, hours after her first formula feeding. She died the next day. According to Cleveland Clinic, as many as 20% of infants do not survive NEC.
The lawsuit over her death, which had been filed on behalf of her mother, Ericka Mar, claimed that Abbott had failed to warn its customers of a potential NEC risk from its products.
But a key point in the defeat of the lawsuit was Judge Pallmeyer’s determination that, even if a warning had been included, the hospital staff likely would have needed to feed the formula to the infant anyway.
“Well, what else would we feed this baby? I mean, we have to have some sort of formula, if we run out of mom’s milk and there was no option for donor’s milk,” RaiLee’s treating physician had said in a deposition when asked if a stronger warning would have changed his treatment plan. “You can’t send babies home on donor’s milk anyway, so we have no other option.”
How Other Baby Formula NEC Lawsuits Will Be Impacted
The outcome of this case was to be closely watched, with hundreds of other lawsuits pending over claims that Abbott Laboratories and Mead Johnson failed to warn of an NEC risk from some of their formulas.
This case was also set to be the first bellwether trial among federal cases. Bellwethers serve as a litmus test for overall litigation, giving both sides an idea of what would happen if more cases were to go to trial.
When plaintiffs have success in bellwethers, it can sometimes encourage defendants to settle the overall litigation instead of risking losing more cases. Three more bellwether trials remained scheduled.
While the summary judgment order was a win for defendants after significant losses in state court, Judge Pallmeyer cautioned that her decision has “limited direct application” to other pending cases.
She pointed out that she did not weigh in on some of the key issues of the litigation as part of her decision and that other cases may be able to put together stronger arguments in the areas where the Mar case fell short.
Baby Formula Plaintiffs Notch Key Victory on Expert Testimony
While the summary judgment order was a blow to plaintiffs in the baby formula NEC litigation, Judge Pallmeyer handed down a significant win on Friday as well.
She denied motions from defendants to exclude the testimony of two key experts from the litigation. The testimony of these experts can now be used by plaintiffs in upcoming trials to establish a link between formula feeding and the development of NEC.
The two experts, professors at Vanderbilt University and the University of Minnesota, have provided information on establishing a statistical connection between formula feeding and the medical condition. They’ve also collected biological information on why and how this could be the case. That testimony will be key to the ongoing baby formula NEC lawsuits.
It is unlikely that the hundreds of baby formula cases in federal court would have been able to move forward without this ruling. The next baby formula bellwether trial is set for Aug. 11.