On Friday, May 2, U.S. District Judge Rebecca Pallmeyer of the Northern District of Illinois, ruling on the defendant’s summary judgment motion, dismissed the first bellwether case in the Infant Formula MDL 3026 filed against Abbott Laboratories; the case was scheduled to start trial on May 12. The plaintiffs in the case alleged that Abbott’s cow’s milk-based infant formula, intended for use by premature infants, caused a gastrointestinal disease known as necrotizing enterocolitis (NEC) in 15-day old RaiLee Mar, resulting in her death. There are currently over 700 lawsuits pending in federal court making similar claims that have been filed against manufacturers Abbott Laboratories and Mead Johnson, a subsidiary of Reckitt Benckiser Group, involving their formula brands Enfamil and Similac.
In her ruling, Judge Pallmeyer wrote:
“Abbott could have made more forceful warnings about the relative risks of its formula. The factual reality, however, is that at the time and location of this baby’s birth, cow’s milk-based infant formula was the only option to feed her. Abbott cannot be liable for its failure to warn of a better but unavailable alternative.”
In a separate summary judgment ruling, however, Judge Pallmeyer declined to grant that motion, instead refusing to exclude two of the plaintiffs’ general causation experts in the MDL, stating that the defendants had taken the experts’ deposition testimony out of context and describing some of their arguments as “groundless”. Lead counsel in the MDL took the opportunity after the rulings to point out that the judge’s ruling in the second motion left the door open for the remaining bellwether cases to proceed as part of the MDL in federal court. In addition, the judge rejected Abbott’s contention that it did not have a duty to warn the plaintiff of the risks associated with its baby formula.
There have been a number of mixed results in state court since the onset of the litigation, including verdicts for the plaintiffs in Illinois and Missouri in the amounts of $60 million and $495 million, as well as a defense verdict for both companies.
The next bellwether trial is scheduled for August 11.
