Abbott Wins Summary Judgment in Bellwether NEC Baby Formula Case

In a significant pretrial development for Abbott Laboratories, an Illinois federal judge has granted summary judgment in the company’s favor in one of the earliest bellwether cases in the ongoing multidistrict litigation over cow’s milk-based infant formulas. The case was brought by Ericka Mar, whose daughter RaiLee tragically died shortly after birth in 2021. Born 12 weeks premature, RaiLee was fed Abbott’s Similac formula designed for preterm infants. Within days, she developed necrotizing enterocolitis (NEC), a life-threatening gastrointestinal condition that disproportionately affects low birth weight and premature babies.

Mar alleged that Abbott’s failure to warn about the risks of NEC associated with its formula products contributed to her daughter’s death. However, U.S. District Judge Rebecca R. Pallmeyer concluded on May 2 that Mar had failed to establish critical elements required to bring the case to trial. Specifically, the court found there was no viable evidence demonstrating a feasible alternative to Abbott’s formula at the time of RaiLee’s birth and no causal link between Abbott’s alleged lack of warning and the outcome in this case.

The Court’s Reasoning

In her ruling, Judge Pallmeyer acknowledged the emotional gravity of the case, stating that “the loss of a child is heartbreaking, and for Ms. Mar and her family, RaiLee’s death is a profound tragedy.” Despite this, she determined that Abbott could not be held liable based on the available evidence.

While the court noted that Abbott "could have made more forceful warnings about the relative risks of its formula," the judge emphasized that at the time and place of RaiLee’s birth, no alternative nutrition, such as donor milk or human-milk-based formula, was available. “Abbott cannot be liable for its failure to warn of a better but unavailable alternative,” she wrote.

Judge Pallmeyer rejected the notion that the presence of cow’s milk caused NEC, clarifying that she did not adopt Abbott’s broader argument that the absence of human milk alone is responsible. She made it clear that the findings in this case would have limited application to others in the MDL, noting that future plaintiffs might present more robust expert evidence or fact patterns supporting alternative feeding options.

The Challenge of Proving Feasibility

A key issue in the case was whether Mar could demonstrate that Abbott had a safer, feasible alternative design available at the time. Mar pointed to Prolacta, a human-milk-based fortifier and formula, as an example of what Abbott could have offered. However, Judge Pallmeyer found that Mar’s experts lacked the necessary expertise in formula manufacturing to support that claim. While the experts had clinical knowledge sufficient to suggest Prolacta was a safer feeding method, that did not translate into proof of a viable product alternative Abbott could have reasonably offered.

Additionally, the court found it unclear whether Mar was referring to Prolacta’s fortifier or formula products that serve different functions. Most importantly, no evidence was presented as to the feasibility of using or producing Prolacta at scale. “The absence of any evidence of feasibility from the plaintiff is particularly jarring in contrast to uncontroverted evidence submitted by Abbott,” Pallmeyer wrote, highlighting the scarcity of donor milk and challenges in manufacturing human-milk-derived formulas.

Legal Implications for the Broader MDL

While this decision represents a clear win for Abbott in the first bellwether case, Judge Pallmeyer emphasized that her ruling should not be viewed as determinative of the outcomes in other pending lawsuits. Mar’s case was one of four bellwethers selected for early trial in the consolidated litigation, which includes hundreds of suits against both Abbott and competitor Mead Johnson. The judge noted that future plaintiffs may succeed in presenting a stronger factual basis or different medical and manufacturing evidence.

Notably, Judge Pallmeyer declined to exclude Mar’s expert witnesses from the litigation entirely, a decision that will allow other bellwether cases to proceed. Plaintiffs’ attorneys emphasized this point in a joint statement following the ruling. “The court’s denial of defendants’ motions to exclude plaintiffs’ experts will permit the remaining bellwether cases to go forward and the MDL as a whole to continue,” they said.

Reaction from the Plaintiffs’ Team

Attorneys for Mar expressed profound disappointment with the court’s ruling. “This is a family who was destroyed by bad behavior from Abbott Laboratories,” they stated, arguing that the company had been aware of the risk of NEC for decades yet failed to provide adequate warnings. “Now, they have known for three decades but still have not adopted a more robust warning.”

Despite the loss in this specific case, plaintiffs’ counsel affirmed their commitment to continuing the litigation on behalf of families affected by preterm infant formula products. They noted that the decision in Mar v. Abbott was “limited to the facts of the Mar case” and said they were currently reviewing options for appeal or further action on behalf of the family.

The Law Firms Involved

The plaintiffs in the case are represented by a coalition of prominent plaintiffs’ firms, including Johnson Becker PLLC, Lieff Cabraser Heimann & Bernstein LLP, DiCello Levitt LLP, Levin Rojas Camassar & Reck LLC, and Levin Papantonio Rafferty.

Abbott Laboratories is represented by Jones Day attorneys Meir Feder, Bridget K. O'Connor, and Edward M. Carter, along with James F. Hurst of Kirkland & Ellis LLP.