NEC Infant Formula Makers Face Retrial in Only Victory

St. Louis, MOInfant baby formula manufacturers are facing a new trial after a Missouri judge accused their lawyers of misconduct, which resulted in the jury’s unfair verdict over their only victory. The companies Abbott and Reckitt are accused of failing to warn that their specialised formulas used by intensive care units for newborns could cause necrotising enterocolitis (NEC), a disease that affects premature infants and has an estimated mortality rate of more than twenty percent.

Lawyer Misconduct

Missouri Circuit Judge Michael Noble determined the defense lawyers’ misconduct was so significant that it could influence the jury’s final decision. Bloomberg reported that the Judge penalized one of the lawyers during the trial and barred from making arguments because Judge Noble determined they were attempting to prejudice the jury and force a mistrial. Reuters reported on March 14th that the defense lawyers:

Intentionally and repeatedly violated clear instructions when presenting evidence to the jury.

Flooded the zone” with objections,

Presented evidence that the judge had previously disallowed,

Confused the jury by attacking “straw man” arguments (a fallacy, when someone sets up and then disputes an assertion that is not actually being made.)

Said that babies would “starve to death” if the products were pulled from the market.

Abbott and Mead Johnson plan to appeal the judge’s order.

NEC Lawsuits – Wins and Losses

Before their only win in November 2024, Abbott and Reckitt chalked up a number of large losses in similar lawsuits. At that trial in St. Louis, Missouri state court, lawyers for plaintiff Kaine Whitfield, asked for an award of more than $6.2 billion. The lawsuit was filed by Kaine’s mother, Elizabeth Whitfield. Kaine was born prematurely seven years ago and developed NEC after being fed infant formula at St. Louis Children’s Hospital. According to the lawsuit, Kain had surgery for the deadly bowel condition, but will have lifelong developmental and health problems.

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Two lawsuits before Judge Nobel, including Whitfield’s case, resulted in a $495 million loss against Abbott and $60 million against Mead Johnson. Reuters reported that, on the heels of these verdicts, U.S. regulatory agencies and a working group of scientists convened by the National Institutes of Health said current evidence does not support the hypothesis that formula causes necrotising enterocolitis. Reuters also reported in October 2024 in a ruling by Missouri Circuit Judge Michael Noble that Abbott and Mead would not be allowed to show jurors a statement by U.S. government agencies and a government-commissioned report to defend themselves in a NEC baby formula trial that began the previous month. Judge Noble said the statement and report were not new research; the defense argued that they should be allowed because they are “authoritative.”

Whitfield’s lawsuit is one of close to 1,000 similar cases nationwide, alleging that the companies failed to warn that their specialized formulas used by newborn intensive care units in hospitals could cause necrotizing enterocolitis. The NEC lawsuits include incidents of premature infants who suffered severe, permanent health issues or died.

Now that Judge Nobel has ordered a retrial, Abbott and Mead Johnson now have no victories among the pending lawsuits. The first federal bellwether trial is set to begin in early May.