Trial Lawyers’ Latest Target: Life-Sustaining Baby Formula

COMMENTARY

In America’s courtrooms a disturbing trend is unfolding that threatens not just the integrity of our legal system, but the health and lives of the most vulnerable among us: premature infants relying on life-sustaining baby formula. 

Trial lawyers, armed with dubious science and driven by the prospect of massive paydays, have zeroed in on baby formula manufacturers, risking yet another public health crisis that could leave parents scrambling. We need only recall the panic and shortages of 2022 to understand the potential impact on newborns and their desperate caretakers as this needless litigation threatens to upend infant food supplies. 

Lawyers peddling junk science related to baby formula safety already are seeing some success finding big payouts with juries in Judicial Hellholes® awarding nuclear verdicts. In July, a St. Louis, Missouri, jury handed down a nearly $500 million verdict against Abbott Laboratories while in March, Reckitt Benckiser was ordered to pay $60 million by an Illinois jury. 

Plaintiffs’ lawyers in these cases claim that prescribed, fortified infant formula increases the risk of a life-threatening intestinal disease in preemies called necrotizing enterocolitis, pinning the blame for tragic loss on manufacturers of life-sustaining formulas. 

However, these rulings, along with the evidence on which they are based, fly in the face of established medical science and regulatory guidance. This misguided litigation potentially jeopardizes a critical nutritional lifeline for at-risk infants. Human-made breast milk may be best for preemies in need, but as a mother of three young children, I know that it’s not always a viable option for a variety of reasons. Whether it be that the birthing parent is unable to produce milk, or that donated milk is not available, families worldwide rely on formula to feed their newborns.

The American Academy of Pediatrics stated unequivocally in a response to these lawsuits: “Courtrooms are not the best place to determine clinical recommendations for the care of infants.” The organization emphasized that special formulas for preterm infants are an essential source of nutrition, prescribed by doctors in neonatal intensive care units. Further, the Food and Drug Administration, which oversees baby formula regulation, does not require warnings about NEC risk because the science simply doesn’t support such claims.

The recent half-billion-dollar verdict may be an unfortunate sign of things to come. Many claims still are pending, with an overwhelming majority in St. Clair and Madison Counties in Illinois — both of which are perennial Judicial Hellholes®. These jurisdictions, known for plaintiff-friendly rulings, are magnets for speculative litigation that puts profit before public health.

The consequences of this legal onslaught could be dire. Formula manufacturers, facing the prospect of crippling liability, may be forced to remove these vital products from the market. 

But this isn’t the first time plaintiffs’ attorneys have prioritized personal profit over public health. This is, regrettably, just part of their trial lawyer playbook. They’re pouring hundreds of thousands of dollars into ad blitzes to drum up claimants in these baseless lawsuits — but we’ve seen the dangers of trial lawyer misinformation before.

A 2019 FDA study found that alarmist lawyer advertisements led some patients to stop taking prescribed blood thinners, resulting in strokes and even deaths. Dr. Ilana Kutinsky, the doctor for one of the deceased, stated before Congress, “Patients are dying because they are afraid to take the medications prescribed for them due to the fear brought on by these negative and one-sided campaigns.”

Now, we risk seeing parents of infants in need, stoked by fear, refusing doctor-recommended formula for their premature infants.

It’s time for our courts to reassert the primacy of sound science over the profit-seeking motives of trial lawyers. To safeguard infant health and maintain a stable supply of critical nutrition, state courts must rigorously apply standards aligned with the newly amended Federal Rule of Evidence 702. This rule empowers judges to scrutinize expert testimony, ensuring only sound science informs these life-altering decisions. 

Judges must recognize these cases for what they are: a cynical attempt to turn the suffering of families into a litigation jackpot. The health and safety of our most vulnerable — and the integrity of our justice system — hang in the balance.

Lauren Sheets Jarrell is vice president and counsel for civil justice policy at the American Tort Reform Association. She can be found on LinkedIn.