What Another Failed Baby Formula Lawsuit Means for Hundreds of Pending Cases
For the third time this year, an infant formula bellwether case will not advance to trial.
Judge Rebecca Pallmeyer, who is overseeing hundreds of baby formula lawsuits that claim some products are tied to a deadly intestinal condition in premature infants, granted formula maker Abbott Laboratories’ motion for summary judgment on Thursday.
With summary judgment, a judge rules in one side’s favor on a case before it can go before a jury. This has been the outcome of three straight bellwether cases meant to test the strength of both sides’ arguments in the baby formula litigation.
The latest bellwether case involved an infant who was born prematurely in 2021 and was fed Similac Special Care 24 as part of their diet. The infant eventually developed necrotizing enterocolitis (NEC), a serious condition where intestinal tissue death occurs. The infant’s condition worsened, and the infant died five days after first being fed formula.
According to Johns Hopkins Medicine, the death rate for NEC is about 25%.
Judge Pallmeyer sided with Abbott because she determined there wasn’t necessarily a feasible alternative to using Similac to feed the infant.
A health care economist who served as an expert for Abbott in the case noted that there is not enough human donor milk or human milk-based products to meet the demand for premature infants. From 2010 to 2022, 62,000 premature infants may have gone unfed if cow’s milk-based formula like Similac was unavailable, the expert claimed.
With another bellwether case defeated, the path forward for the more than 750 infant formula cases grouped together in federal court may be rocky.
Second Wave of Baby Formula Bellwether Trials Could Be Coming
Following three straight wins for Abbott, only one more bellwether case remains for the hundreds of pending infant formula lawsuits.
Now, Judge Pallmeyer is pushing for a second wave of potential bellwether trials to be selected. Earlier this month, she ordered both sides to work together on a schedule for selecting new bellwether cases with a goal of getting the first one to trial in August 2026.
Bellwether trials serve an important role in litigations like this one where many similar lawsuits are filed. They help both sides understand the strength of their cases and what may happen if more lawsuits were to go before a jury.
The outcomes of these trials can play a big role in influencing infant formula settlement talks for all cases.
Work on the next wave of bellwethers is expected to be somewhat expedited, with Judge Pallmeyer calling for discovery to be completed “as soon as reasonably possible.”
Could Baby Formula Lawsuits See More Success in State Court?
While hundreds of baby formula lawsuits are grouped together before Judge Pallmeyer in federal court, other cases are advancing at the state court level.
As the federal cases have struggled to get before a jury, some state cases have not only crossed that hurdle but also achieved major victories.
In July 2024, a St. Louis jury awarded a staggering $495 million verdict to the family of an infant who developed NEC after being fed formula. A $60 million verdict was handed out by an Illinois jury in a similar case in March 2024 as well.
The only win for formula manufacturers in state court came in October 2024, but that victory was later wiped out when the judge ordered a retrial of the case.
If the federal cases continue to fail to get to trial, this litigation may shift more heavily toward the state level.
