A third trial about cow’s milk-based infant formula designed for premature babies began on Wednesday in Missouri, where a St. Louis jury heard opening statements.
The trial, expected to last five weeks, is the first to target both of the leading manufacturers of the specialized formula: Abbott Laboratories Inc. and Mead Johnson, owned by Reckitt Benckiser Group. Each manufacturer has lost a verdict so far in prior trials over the same products.
On Wednesday, attorney Timothy Cronin, of the Simon Law Firm in St. Louis, told jurors in St. Louis City Circuit Court that both companies sold the infant formula that doctors gave Kaine Whitfield, who was diagnosed 16 days after his 2017 birth with necrotizing enterocolitis, or NEC, a gastrointestinal inflammation. Cronin’s client, Elizabeth Whitfield, Kaine’s mother, should have known about the risks, but the labels on the bottles and packaging have no warning, he said.
Cronin asked jurors to force the companies to warn parents about the risks of NEC.
“This day has been a long time coming,” he told jurors, according to a broadcast of the opening statements by Courtroom View Network. “It’s going to take a very, very large number to fix this problem.”
He cited internal documents showing that Abbott and Mead Johnson were more concerned about marketing their products, which are used in a hospital’s neonatal intensive care unit. Abbott makes Similac, and Enfamil is made by Mead Johnson.
“Own the NICU, own the hospital,” Cronin told jurors. “Abbott doesn’t want to just own the NICU, they want to own the whole baby experience.”
Cronin told jurors that Kaine is now susceptible to infections and needs occupational and speech therapy. A child in his condition, on average, needed $73 million in medical care for the rest of his life and was entitled to other nonmedical compensation, plus punitive damages.
But James Hurst, of Kirkland & Ellis in Chicago, who represents Abbott, said Kaine, born at 27 weeks, had the biggest risk factor for NEC before receiving any formula: extreme prematurity.
“The day he was born, he had a one in 10 chance of getting NEC,” he said, according to the Courtroom View Network broadcast. “His extreme prematurity by itself was enough to cause NEC.”
Kaine also had anemia and a “series of infections” and was on antibiotics for 13 days, all of which increased his risk of developing NEC, he said. He also noted that Kaine might have a potential genetic condition and that Whitfield took marijuana during her pregnancy.
Phyllis Jones, of Washington D.C.’s Covington & Burling, repeated those defenses in a separate opening statement for Mead Johnson, according to Courtroom View Network. She also told jurors that Kaine received her client’s product only three times in a single day.
“He received an ounce and a bit on a single day seven years ago,” she said. “And that was it.”
Both Jones and Hurst said putting a warning on the label wouldn’t have mattered because the parents don’t see the formula bottles and neonatologists are aware of the medical risks.
The trial also is against St. Louis Children’s Hospital, where Kaine was transferred after he was born. The hospital does not face punitive damages but is set to provide its opening statement on Thursday.
‘Every Single Day He Was Fed He Got His Mother’s Own Milk’
Sold in hospitals, not in retail stores, the formula is touted as a life-saving alternative to breast milk, but lawsuits contend that it is linked to NEC, which sickens or kills premature babies.
Two previous juries have hit Abbot and Mead Johnson with substantial verdicts. On July 26, another St. Louis jury awarded $495 million to a mother suing Abbott and, on March 13, a jury in St. Clair County Circuit Court in Illinois awarded $60 million to a woman who sued Mead Johnson after her premature boy died.
James F. Hurst partner with Kirkland & Ellis. Courtesy photo
Hurst represented Abbott, and Jones led Mead Johnson’s trial team in the two previous trials.
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.
On Wednesday, Cronin told jurors about studies that found a link between cow’s milk-based infant formula and NEC, which has sickened and killed premature babies.
But Hurst talked about a report issued last month to the federal government that compiled decades of research and concluded it was the absence of human milk, not the presence of formula, that is associated with the increased risk of NEC.
“Kaine Whitfield got human milk every single day he was fed,” he told jurors, according to the Courtroom View Network livestream. “Sometimes had fortifier on top, some days formula in the middle, but every single day he was fed, he got his mother’s own milk.”