Appeals court dumps $60M baby formula NEC verdict vs Mead Johnson

By Jonathan Bilyk | Legal Newsline
The Center Square

Saying a St. Clair County judge applied an improper legal standard and allowed trial lawyers to bias a jury, an Illinois appeals court has tossed out a $60 million verdict in favor of a woman who claimed formula maker Mead Johnson should pay for her premature baby’s death, allegedly from an illness caused by Enfamil baby formula.

On June 12, a three-justice panel of the Illinois Fifth District Appellate Court overturned the verdict entered by a jury in favor of plaintiff Jasmine Watson in a trial overseen by St. Clair County Circuit Court Patrick R. Foley.

In the appellate ruling, the justices said Judge Foley committed reversible error when he chose not to allow the jury to consider if the basis of Watson’s case – that Mead Johnson owed a duty to warn parents directly of the risks of feeding a variety of Enfamil formula designed to be consumed by premature infants in the hospital, as well as doctors – didn’t hold up.

The justices also said Foley committed reversible error when he permitted the plaintiff’s lawyers to repeatedly tell jurors about Mead Johnson’s “wealth,” which the justices said led jurors to conclude the company could be “punished” by a big verdict without any lasting harm.

“… The repeatedly emphasized and wide-ranging financial testimony admitted at trial far exceeded any permissible purpose. The financial evidence was not isolated or incidental,” the justices wrote. “Instead, it was repeatedly highlighted during trial and in closing argument.

“Such use of financial evidence posed a substantial danger that the jury would return a verdict based not on scientific causation, product defect, or inadequate warnings but on the perceived ability of a large corporation to bear the cost of a verdict. This is precisely the type of prejudice that warrants reversal.”

The opinion was authored by Justice Michael D. McHaney. Justices Mark M. Boie and Robert C. Bollinger concurred in the decision.

The decision sets the table for a potential new trial in the case lodged by Watson.

At the time of the initial verdict in 2024, the trial had served as a landmark amid the sprawling mass litigation against Mead Johnson & Co. and their competitor, Abbott Labs, over claims their Enfamil- and Similac-branded baby formulas caused illness among premature infants.

In those lawsuits, the plaintiffs accuse the companies of allegedly selling baby formula, despite allegedly knowing consumption of their cow’s milk-based formulas increases the risk of babies suffering severe injuries or dying from the illness known as necrotizing enterocolitis, or NEC.

NEC is a condition which results in the death of bowel tissue and can lead to severe illness and death in newborns, particularly if they are born premature. NEC carries a fatality rate of around 15-40% in infants suffering from the condition.

The lawsuits have poured into courts by the thousands in state and federal courts throughout the U.S.

Specifically, they typically accuse the companies of allegedly failing to warn the public about the alleged enhanced NEC risks posed by the baby formulas, compared to human breast milk or what they claim are other potential alternatives.

While hundreds of lawsuits have been consolidated in Chicago federal court, hundreds of other lawsuits are pending in state courts in Madison and St. Clair counties.

Watson had filed her lawsuit in 2021, accusing Mead Johnson of failing to warn her before she allowed hospital staff in the neonatal intensive care unit to feed a variety of Enfamil formula to her premature son, Chance.

Chance had been born prematurely, as one half of a set of twins, with his brother, Chase.

Chase survived, but Chance died in March 2020 after undergoing surgeries needed to remedy NEC, allegedly caused by the Enfamil variety formula fed to him in the hospital.

In 2024, Watson’s case was the first Illinois NEC case to go to trial.

Throughout the trial and the litigation process, the formula makers have repeatedly stressed that their products are safe and offer the only real alternative to starvation for at least thousands of babies born every year.

During the trial, attorneys for Mead Johnson further asserted Watson’s case rested on a faulty legal argument, that the company was required to warn her directly of the risk of NEC.

The company instead argued that it was obligated to warn the doctors and other health care professionals who actually fed the formula to the infants. Under this legal doctrine, known as the “learned intermediary doctrine,” it then would become the duty of the doctors – the “learned intermediaries,” in this instance – to warn the mother of the risk of NEC.

However, when the case was handed to the jury for deliberations, Judge Foley specifically refused to include the learned intermediary doctrine in his written instructions to the jury.

Further, during the trial, Judge Foley repeatedly allowed attorneys from the firms of Keller Postman, of Chicago; The Cates Law Firm, of Swansea; and Olson Grimsley Kawanabe Hinchcliff & Murray, of Denver, to tell jurors about the “corporate wealth” held by Mead Johnson’s parent company, Reckitt Benckiser, which is worth billions of dollars.

The jury then returned a verdict of $60 million in favor of Watson, potentially setting the tone for future trials and hopes of similar big money verdicts for plaintiffs.

On appeal, however, the justices said Judge Foley was wrong to reject the arguments concerning Mead Johnson’s duties under the learned intermediary doctrine.

In the decision, McHaney said legal precedent shows the duty to warn is not a “general” one, but rather a specific one, “owed to the physicians, not (Watson, as the mother.)”

By finding otherwise, and precluding the jury from considering the learned intermediary doctrine, McHaney said Foley’s “error tainted the entirety of the trial proceedings and prejudiced the jury.”

So, the justices said, Mead Johnson is owed at least a new trial.

The justices remanded the case to St. Clair County Circuit Court, with directions concerning the learned intermediary doctrine and strictly limiting plaintiffs’ lawyers abilities to tell jurors about Mead Johnson’s financial holdings, due to the “extreme prejudicial effect” of such references, in testimony or argument.

Mead Johnson has been represented by attorneys from the firms of Steptoe & Johnson, of Chicago; and Covington & Burling, of Washington, D.C.