Two attorneys seek justice for the many families whose premature infants suffered as a result of hospital-provided cow’s milk-based formulas.
For premies in the NICU, infant formula may not be as universally safe as we’ve been led to believe.
In the last year, several parents of premature babies are filing lawsuits against the manufacturers of Enfamil and Similac (Mead Johnson & Johnson and Abbott Laboratories) after their babies developed necrotizing enterocolitis (NEC).
In our first ‘The Davids’ webcast of the season, I had the pleasure of chatting with attorneys Stephen Reck at Levin, Rojas, and Amelia Frenkel at Keller Postman to unpack their mass tort case against two leading infant formula manufacturers. Watch the full webcast here.
The first NEC-related case.
Stephen’s first case started when a mom called him saying that her premie infant, who had been growing steadily for 40 days on human donor milk, developed NEC once the hospital started feeding him Similac baby formula. Unfortunately, after an emergency attempt at surgery, the infant passed away.
“When you hear these stories, you have to be cautious because this just seems impossible,” says Stephen. “How could food kill a baby?”
The firm put out a small Facebook campaign to gauge the number of families whose children suffered from NEC. “All these moms started contacting us,” he says.” That’s when I realized this was a serious problem throughout the country and many premies are passing away because of it.”
The research that already existed for decades.
Steven immediately began to dig into current research around cow’s milk baby formula and premature babies and was shocked to find numerous peer-reviewed medical journals confirming the mother’s theory, that cow’s milk-based formula indeed proved to increase the risk for NEC in premies.
In 2011, the US Surgeon General published that “for vulnerable premature infants, formula feeding is associated with higher rates of necrotizing enterocolitis.”
Almost 11 years later, the American Academy of Pediatrics claimed that “all preterm infants should be fed either their mother’s milk or if their mother’s milk is unavailable pasteurized human donor milk.”
So why are hospitals still feeding premies cows-milk formula despite the research? It’s not uncommon for hospitals to receive free baby formula from major corporations like Abbott and Mead to introduce new moms to their brands and encourage them to continue buying the brand once they return home. While this can help the hospitals offset costs, the intake of formula can also reduce the need for keeping donor banks full which is critical to premie nutrition.
Where things stand today.
In March 2022, Abbott filed an MDL to move 17 infant formula cases to Illinois. All federal cases are now before Judge Rebecca Pallmeyer with the first trial date set for March 2023.
This past week, Hon. Rebecca Pallmeyer named her final appointments of NEC attorneys to serve as Plaintiffs’ Lead Counsel, Liaison Counsel, and Steering Committee. New federal cases are continuing to be transferred in from around the country with 78 lawsuits currently in total.
At a state level, there are trial dates set for five cases. Amelia is currently working on corporate discovery to try and uncover what risks these corporations knew about prior to these incidents. “Parents want to understand what happened,“ she says. “They want parents that will be in the NICU a year from now to have knowledge that they didn’t.”
Not surprisingly, Stephen and Amelia anticipate claims from the defense their product is stabilized. With many years in the industry, they imagine Abbott and Mead will find a handful of experts to support them.
“We’ve started to hear from defendants that they’re going to blame everything but the formula,” says Amelia. “Being able to illustrate why that was the case in any given case is going to be challenging. We really have to have the medical records and the experts to make sure we’re doing these things is the only way we’re going to win.”
How you can get involved.
Now is the time to get involved. Partnering with firms like Amelia’s and Stephen’s who have been working on these cases for a while can help uncover critical information.
“We have some of the most brilliant and empathetic paralegals who are talking to moms,” says Stephen. “We really know what to look for and what questions to ask.”
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