A state appeals panel has ruled Abbott Laboratories and Mead Johnson must continue defending themselves against a rash of lawsuits seeking payouts for marketing and selling baby formula allegedly linked to cases of a condition potentially fatal in infants.
Thousands of lawsuits have landed in court over cases of the condition known as necrotizing enterocolitis (NEC), which results in the death of bowel tissue and can lead to severe illness and death in newborns, particularly if they are born prematurely. NEC carries a fatality rate of around 15-40% in infants suffering from the condition.
The lawsuits are based on the claim that Mead Johnson and Abbott, the makers of Similac and Enfamil infant formulas, failed to warn the public about the allegedly enhanced NEC risks posed by their cow’s milk-based formulas, compared to human breast milk.
Many of those lawsuits have been lodged in Madison and St. Clair counties.
The Illinois Fifth District Appellate Court ruled Dec. 11 on an interlocutory appeal from St. Clair County Circuit Court Judge Patrick Foley. In that case, plaintiff Amanda Toles, on behalf of herself and a child, sued the companies in October 2021. The following January Abbott tried to move the case to Lake County, where it is headquartered, then in August moved to transfer the case to Cook County, under the doctrine known as forum non conveniens.
Shortly thereafter, Judge Foley entered a case management order to consolidate 20 NEC lawsuits for pretrial and discovery purposes, which combined to cover 90 children born from 2000-2022 across the country. After further proceedings, Foley in October 2023 denied motions in which Abbott and Mead Johnson sought to transfer or dismiss the suits.
In February 2024, the Fifth Circuit agreed to hear appeals of those rulings. Justice Michael McHaney wrote the panel’s opinion, filed Dec. 11; Justices James “Randy” Moore and James Hackett concurred. Hackett is a substitute for former Justice Thomas Welch, who participated in oral arguments before his death in July.
The ruling follows a June 3 opinion in which Justices Moore, McHaney and Welch said they believed Madison County Circuit Judge Dennis Ruth wrongly used factors outside the law to deny the attempt by Mead Johnson & Co. and Abbot Laboratories to transfer some of the lawsuits against them away from that county.
Moore, who wrote both opinions, said the dispute in the Toles opinion distilled to the companies’ assertions that each case in the consolidated portfolio was more conveniently litigated wherever the affected children were born, not necessarily St. Clair County or even Illinois.
“In its omnibus response in opposition to Abbott’s forum non conveniens motion, the plaintiffs included the names of health care providers who had treated the two Illinois infants, the current locations of the providers, and a summary of the specific treatment the providers administered,” Moore wrote. “The record reveals these health care providers are located in many different states, including California, Washington, Nevada, Florida, Missouri, New York, North Carolina, Connecticut, and Alabama. The circuit court made a factual finding that the health care providers were scattered throughout the country and in various counties in Illinois. When the witnesses are so scattered, there is no single forum that enjoys a predominant connection to the litigation.”
Moore noted Abbott’s arguments about the production of its formula products at a facility in Columbus, Ohio, and Mead Johnson’s contentions about the role of its headquarters in Evansville, Indiana, but said those facts – along with others about the availability of witness and their willingness to travel – run counter to the suggestion the most convenient forum is where the children were born or how access to people who work “in Ohio and Indiana would be more convenient in the states or Illinois counties where the infants were born as opposed to the plaintiffs’ chosen forum.”
The panel further noted the complaints raise products liability concerns and not medical malpractice claims, which generally means being able to set aside a preference for litigating in the county where a legal injury occurred. Further, Moore wrote, Judge Foley noted that not only is Abbott based in Illinois, but Mead Johnson has an exclusive contract with the state so recipients of federal Women Infant and Children (WIC)assistance benefits can only use that money on Mead Johnson formula.
“Illinois also has an interest in deciding whether a corporation, whose principal place of business and headquarters are here, sent forth a product that [may have] injured citizens across the nation,” Foley wrote.
The panel ultimately determined Foley “carefully balanced the requisite private and public factors,” Moore wrote, “and thus, we find that the circuit court did not abuse its discretion in finding that the defendants failed to demonstrate that the balance of relevant interest factors strongly favored transfer or dismissal.”
Abbott has fared better in Chicago, where in October U.S. District Judge Rebecca Pallmeyer granted summary judgment in favor of it and other companies accused of improperly promoting cow’s milk-based formula rather than formulas based on human milk, despite the alleged enhanced NEC risks from cow-based products.
In her ruling, Pallmeyer said the plaintiffs must do more than argue human milk is safer and better, and therefore, the companies should be financially punished for selling a lesser product that could cause injury and death. She noted expert testimony estimated relying on human milk along would have left at least 62,000 babies unfed over the period of 2010-2022 alone.
“… Even if plaintiffs are correct, and formula can cause NEC, those risks cannot outweigh (Abbott’s formula’s) utility unless plaintiffs put forward some evidence that shows that cow’s milk formula is unnecessary — which they have not done,” wrote Pallmeyer, who at one point presided over a consolidated action involving at least 750 cases.
Also, in December, an Illinois First District Appellate Court panel ruled 23 lawsuits filed against Abbott and Mead Johnson didn’t belong in Cook County Circuit Court. Plaintiffs — residents of Connecticut, Georgia, Tennessee, Florida, Texas, North Carolina, Massachusetts, New Jersey, Wisconsin, Washington, Pennsylvania, Virginia and North Dakota — invoked the products liability argument relevant in the St. Clair County ruling. But the First District panel agreed with the companies’ contention the cases still rely heavily on evidence and testimony related to medical care, defeating their assertions that their out-of-state claims should remain in Illinois court.
This article was first published in Legal Newsline
