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On April 8, 2022, the U.S. Judicial Panel on Multidistrict Litigation (JPML) ordered all federally filed necrotizing enterocolitis (NEC) baby formula lawsuits centralized in the Northern District of Illinois. Since then, the parties have been working toward selecting a small number of cases to go to early trial.

In August, the parties presented a joint plan for how they will select these cases. That plan indicated that 12 lawsuits will go through case-specific discovery. Plaintiffs will select four of them, defendants another four, and then the court will randomly select the final four.

On October 3, 2022, the parties submitted to the court a list of 66 NEC cases that will be eligible for the random selection process.

Studies Link Cow’s Milk-Based Infant Formula to a Higher Risk of NEC

Several scientific studies have indicated that premature infants fed cow’s milk-based formula may be at a higher risk for necrotizing enterocolitis—a dangerous intestinal disease—than those fed breast milk or human donor milk.

When scientists compared over 1,500 premature babies fed cow’s milk-based formula with those fed breastmilk, for example, they found that those fed breastmilk exclusively had a significantly lower incidence of NEC and mortality.

The difference is significant. In 2015, researchers found that there is a 50 percent reduction in the rate of NEC among extremely low birth weight infants receiving breastmilk only compared to those receiving breastmilk plus formula or formula alone.

Yet Similac and Enfamil manufacturers continue to promote their cow’s milk-based formulas as suitable for premature infants, despite being well aware of these studies.

Parties involved in the consolidated NEC baby formula litigation allege that the manufacturers have failed to warn about the risks associated with their formula products when given to premature infants, and have continued to profit off the sale of these formulas while putting children at risk.

Parties Work Together to Select 12 Bellwether Cases

In consolidated litigation such as this one, the parties typically work together to select a small number of cases to proceed to early trial. These are called “bellwether” trials and are used to gauge how juries will react to the evidence. In some cases, though not all, they can help lead to settlement negotiations.

Back in August, the parties proposed a protocol for selecting the first wave of 12 cases for which they will conduct case-specific discovery. All cases filed before September 16, 2022, were eligible to be included in this group.

The plaintiffs have, by now, selected four cases, of which no more than three included Mead Johnson (makers of Enfamil) as a defendant. Their deadline to do so was September 30, 2022.

The defendants have until November 23, 2022, to do the same, though their rules are slightly different. They must ensure that, when combined with the other cases, no more than five of the total 12 include Mead Johnson as a defendant.

As for the random cases, the parties met their deadline of September 30, 2022, for submitting to the court a list of eligible cases. This list was divided into two smaller lists—one in which Abbott is the sole defendant, and one in which Mead Johnson is a defendant. A computer-generated application will be used to select three from the first list and one from the second.

Parties Will Select Four Final Bellwether Cases for Trial

Within 14 days after fact discovery has been completed for the final 12 cases, the plaintiffs and defendants shall each identify two cases as initial bellwether trial cases, for a total of four. The court will then determine which of the four will be tried first and will set the date for that trial, as well as for the subsequent three trials every 12 weeks thereafter, alternating between cases selected by the plaintiffs and defendants.

The court didn’t mention the first-trial date, but it is expected that it will begin in 2023.

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