A premature baby dies. The allegation at the center of the first NEC MDL trial is that the company selling the formula knew about the increased risk — and chose marketing over a clear warning.
That is a devastating fact pattern to put in front of a jury.
Plaintiffs say Mead Johnson knew for decades that cow’s milk-based formula increased the risk of NEC in premature infants. Yet instead of putting a clear warning on the product, the company allegedly built a strategy to get Enfamil into NICUs, into discharge bags and ultimately into families’ homes.
The phrase jurors heard in opening statements?
“Feed ’em, bag ’em, and club ’em.”
According to plaintiffs, Mead Johnson was willing to price formula at one cent per bottle to secure hospital use while safer human donor milk was available. And now internal emails, PowerPoints, marketing strategies and relationships with healthcare professionals are being put in front of a federal jury.
The defense will argue Daniel Windley was extraordinarily premature, critically ill and vulnerable to NEC regardless of what he was fed.
But the question plaintiffs are putting before this jury is bigger than whether formula has an appropriate role in neonatal care. It does.
The question is whether a company that allegedly knew of a serious risk had an obligation to clearly warn the physicians and parents making life-or-death feeding decisions for the most vulnerable babies.
You can defend a necessary product.
It is much harder to defend withholding information about a known risk while aggressively working to expand its use.
This is the first trial in an MDL with more than 800 cases behind it. For Mead Johnson, and the infant formula litigation as a whole, the next two weeks could set the tone for everything that follows.
