The two leading manufacturers of infant formula for premature babies scored a big win on Thursday after a Missouri jury handed them a defense verdict.
After about three hours of jury deliberations, Abbott Laboratories Inc. and Mead Johnson, owned by Reckitt Benckiser Group, were found not liable for product defect, failure to warn and negligence claims in a trial alleging their cow’s milk-based infant formula caused a premature baby to contract a potentially lethal gastrointestinal illness called necrotizing enterocolitis, or NEC. Abbott makes Similac, and Enfamil is made by Mead Johnson. The jury also found a third defendant, St. Louis Children’s Hospital, not liable for negligence.
Timothy Cronin, of the Simon Law Firm in St. Louis, who represented the mother, plaintiff Elizabeth Whitfield, had asked jurors in his closing argument on Wednesday for $6 billion in punitive damages, tacked onto $276.9 million in compensatory damages.
He told them, “The industry is watching,” according to a livestream of the trial by Courtroom View Network.
“Today, you get to shout from the mountaintop and declare what you think is right and wrong, and people are waiting for what you say,” he told jurors on Wednesday. “They won’t change anything unless you put a huge amount of pressure on them to do so. And the only thing that speaks to companies like these is money.”
Cronin, through a firm spokeswoman, declined to comment about the verdict.
Lawyers for Abbott and Mead Johnson noted that the U.S. Food and Drug Administration, while not approving preterm infant formula, regulates the products, which have been on the market for 40 years.
“This is an important case, too. It has implications outside this courtroom,” Abbott attorney Rebecca Fitzpatrick, a Kirkland & Ellis partner in Chicago, told jurors, according to the Courtroom View Network broadcast. “That’s true, but not for the reasons plaintiffs said. NICUs across the United States are watching.”
In a statement after the verdict, Abbott said, “The decision reinforces what we, the medical community and regulatory bodies have said: that preterm infant nutrition products are safe, and there is no reliable scientific evidence that they cause or contribute to cause NEC. Abbott stands by the vital role its preterm infant formula and human milk fortifiers serve in the hospital in nourishing premature babies.”
In a separate statement, Mead Johnson said the verdict, “demonstrates that the claims in this case were not supported by the science or experts in the medical community, and this case, like all the others brought by the plaintiff’s bar, should be dismissed.”
“This outcome illustrates that moving forward, plaintiffs face significant challenges due to the heavy burden they must meet in proving elements of their claims in every single case,” Mead Johnson continued. “Today’s verdict is consistent with the scientific consensus that there is no established causal link between the use of specialized preterm hospital nutrition products and NEC, and that where human milk is unavailable or when supplementation is necessary, specialized preterm hospital nutrition products can provide essential, lifesaving nutrition.”
‘He Was Robbed of His Independence’
The lawsuit alleged that doctors at St. Louis Children’s Hospital gave the infant formula to Kaine Whitfield who, 16 days after his birth, was diagnosed with NEC. Cronin claims his client, Kaine’s mother, should have been informed about the risk, but the labels on the bottles and packaging have no warning.
Kaine, now 7, has learning and motor skills problems, explosive diarrhea and skeletal abnormalities, he told jurors, according to the Courtroom View Network livestream.
“Please take time to think about what was taken from Kaine, what he can never get back, a lifetime of experiences he will miss,” he said. “He was robbed of his independence and ability to navigate this world of his own.”
Lawyers for the defendants insisted that Kaine had other factors that contributed to his NEC, such as being extremely premature and developing anemia and infections while in the hospital. They also insisted that Kaine could have a potential genetic condition.
The trial, which began Oct. 2, is the third involving claims that cow’s milk-based infant formula given to premature babies in hospitals causes NEC. On March 13, an Illinois jury hit Mead Johnson with a $60 million verdict, and, on July 26, another Missouri jury in the same courtroom handed a $495 award against Abbott.
Thousands more NEC lawsuits are pending in Illinois courts, and there are cases in California, Florida and Pennsylvania. Another 400 cases were coordinated in the U.S. District Court for the Northern District of Illinois before Judge Rebecca Pallmeyer.
22nd Judicial Circuit Judge Michael Noble presided over both Missouri trials in St. Louis.
Phyllis Jones, partner with Covington & Burling. Photo: Diego M. Radzinschi/ALM
“Mr. Hurst’s professional conduct has been reasonably called into question,” he wrote. “Mr. Hurst has repeatedly either attempted to violate or overtly crossed the lines of the court’s orders related to evidence and arguments before the jury.”
He banned Hurst, who had given Abbott’s opening statement, from presenting evidence or closing argument for the remainder of the trial.
On Wednesday, Fitzpatrick and another Kirkland & Ellis partner, Sierra Elizabeth, in Los Angeles, gave Abbott’s closing argument.
In closing for Mead Johnson, Phyllis Jones, of Washington D.C.’s Covington & Burling, told jurors that doctors only gave Kaine a “single feed” of her client’s product.
“In the real world, these claims are real serious,” she said. “And the consequences are really serious.”
St. Louis Children’s Hospital was represented by Teresa Bartosiak, of St. Louis-based Bartosiak Makepeace.