The United States Judicial Panel on Multidistrict Litigation (JPML) has scheduled a hearing to consider Plaintiff’s motion to transfer eighteen Abbott powdered baby formula lawsuits to the U.S. District Court for the Southern District of Florida where they would be consolidated in MDL No. 3037. The court will also hear arguments from plaintiffs who oppose consolidation of these cases. The hearing is scheduled for July 28, 2022.
“We anticipate that the JPML will establish yet another Abbott infant-formula-related MDL following this week's hearing, making it the second Abbott infant formula product liability MDL created by the JPML in just four months,” said Levin Papantonio Rafferty attorney Andy Childers. “Hopefully, Abbott will take these litigations seriously, will accept responsibly, and will fairly compensate the families who have suffered devastating injuries as a result of using Abbott's infant formula products.”
Childers is co-lead in MDL No. 3026, which consolidated all pending lawsuits claiming that Abbott’s pre-term baby formula caused infants to suffer necrotizing enterocolitis (NEC). The JPML transfer order for this MDL was filed on April 8, 2022.
What Are the New Abbott Powdered Baby Formula Lawsuits?
On February 17, 2022, the U.S. Food and Drug Administration (FDA) announced its investigation of consumer complaints of Cronobacter sakazakii and Salmonella Newport infections in babies who had consumed powdered infant formula made in Abbott’s Sturgis, Michigan plant. The agency joined forces with the U.S. Centers for Disease Control and Prevention (CDC), as well as state and local partners, to warn consumers not to use Similac, Alimentum, or EleCare powdered infant formulas with:
- Codes whose first two digits are 22 through 37; and
- Container codes that contain K8, SH or Z2; and
- Expiration dates or April 1, 2022, or later
FDA stated that to date, all five reports of infections in infants who consumed Abbott’s powdered formula resulted in hospitalization and “may have contributed to the death in two patients.”
On February 17, 2022, Abbott initiated a voluntary recall of powdered formula produced at the company’s Sturgis, Michigan, facility. The company announced that testing of the plant had uncovered evidence of Cronobacter sakazakii. According to Abbott’s announcement, Cronobacter sakazakii “can cause fever, poor feeding, excessive crying or low energy, as well as other serious symptoms.”
Consumers can determine whether their purchased baby formula products are included in the recall by visiting similacrecall.com and type in the code on the bottom of the package. Concerned consumers may also call 800-986-8540 and follow the given instructions.
What Is an MDL and What Happens After an MDL Is Established?
MDLs come into play in complex lawsuits when multiple individuals suffer from similar injuries or losses but have different damages. In the interest of promoting efficiency and enabling more consistent outcomes across all the cases, pretrial proceedings—including discovery, depositions, and decisions about common questions of fact—are centralized in one court and occur simultaneously.
On July 28, 2022, the JPML will hear the arguments for and opposing consolidation of all federally filed Abbott lawsuits for pre-trial proceedings.
If the JPML, a panel of seven U.S. District Court judges, creates an MD for these lawsuits, the district court to which the MDL is assigned would oversee all the administrative aspects of and all pretrial motions for the consolidated case. The JPML would file a transfer order, and any Abbott baby formula cases pending in a federal court would be transferred to the new district court. The MDL judge would select cases from those transferred for bellwether trials. These trials help both plaintiffs’ and defense attorneys by acting as predictors for the likely outcomes of other trials in the MDL. Based on the bellwether trials, attorneys often finetune their strategies or even pursue settlement agreements.
The Abbot Baby Formula MDL would be terminated once all cases are tried, settled, dismissed, or transferred back to their original district court.
If the JPML were to decide against creating an MDL for the Abbott Baby Formula cases, they would be transferred back to their original courts for trial.