Inside Mead Johnson’s Unusual Strategy To Fight Baby Formula Lawsuit
As baby formula lawsuits mount, formula maker Mead Johnson is turning to an unusual legal strategy to fight a landmark trial scheduled for next month.
The maker of Enfamil, along with Similac’s Abbott Laboratories, faces hundreds of claims that some of its formulas are tied to a severe gastrointestinal condition called necrotizing enterocolitis (NEC) when fed to premature infants.
Now, Mead Johnson is citing a recent U.S. Supreme Court decision involving a popular weed killer to try to escape key claims.
How the Roundup Litigation Affects Baby Formula NEC Lawsuits
Tens of thousands of lawsuits have been filed over claims that the popular weed killer Roundup is tied to the development of cancer. It is one of the largest dangerous product litigations in the United States.
Earlier this year, the Supreme Court reviewed a Roundup lawsuit and sided with the weed killer’s manufacturer. The court determined that the lawsuit was preempted, or overruled, by federal law because the Environmental Protection Agency had approved Roundup’s label without a cancer warning.
Mead Johnson is looking to apply that same logic to next month’s trial. In recently filed court documents, the company claims that the Roundup Supreme Court decision “applies with equal force” to FDA-reviewed baby formulas.
While it has been anticipated that the Roundup decision could impact other litigations, Mead Johnson’s argument is an unusual one in part because the Roundup decision and the formula company’s motion don’t focus on the same claims.
The Supreme Court ruled on failure-to-warn claims, which essentially argue that the makers of Roundup should have warned customers of a cancer risk but didn’t. Mead Johnson is pushing to use that decision to defeat design defect claims, which argue a product is dangerous or flawed because of its design.
“This argument is a stretch, but I’m not surprised to see it. In the wake of Durnell, we’re going to see corporations cite that decision in product liability cases across the board,” said Whitney Ray Di Bona, attorney and consumer safety advocate at Drugwatch. “The case law doesn’t directly apply here, but it can certainly be used as persuasive authority. What remains to be seen is how much weight trial courts are willing to give these arguments in a post-Durnell world.”
Mead Johnson and Abbott Face Hundreds of NEC Lawsuits
The stakes are high in the upcoming trial for hundreds of families who say their infants died or developed lifelong health issues after being fed certain formulas. This will be the first baby formula trial to take place at the federal level following mixed results in state courts.
In March 2024, Mead Johnson was ordered to pay $60 million to the mother of an infant who died from NEC. An Illinois court, however, wiped that verdict out earlier this year, and a new trial could be coming.
The formula maker also won a separate trial in Missouri earlier this month.
Next month’s federal trial is particularly important because it is what’s known as a bellwether case. There are 810 baby formula lawsuits grouped together in Illinois federal court before Judge Rebecca Pallmeyer in what is known as multidistrict litigation (MDL).
MDLs place many similar cases all before the same judge for coordinated, streamlined proceedings. Instead of going through the tedious and expensive process of preparing hundreds of cases for trial, a small group is selected as bellwethers to serve as test cases for the wider litigation.
So, the outcome of the upcoming trial could affect many other cases as both sides learn more about the strength of their arguments.
The trial is currently scheduled for Aug. 12.