ABSTRACT: St. Clair County, Illinois held the first of many Enfamil trials which lasted 4 weeks and resulted in a $60 million verdict.

In a landmark case tried in St. Clair County, Illinois, Watson v. Mead Johnson, 21 L 1032 (“Enfamil trial”), a $60 million verdict may very well force hospitals to recalibrate their policies on what to feed very low birth weight (VLBW) preemies under 34 weeks. Ms. Watson filed her case on October 28, 2021, after her premature son died of necrotizing enterocolitis (NEC) which she claims he got after he was placed on cow’s formula instead of donor milk.

The Enfamil trial took place over the course of 4 weeks. Voir Dire lasted two days resulting in a jury made up of only 4 men and 8 women (plus 3 alternate jurors who were also women).  There were only four minority jurors, and the jurors covered a large age range.

After hearing extensive testimony regarding NEC, the causes of NEC, formula for premature babies vs. donor milk, and warning labels or lack thereof, the jury came back with this nuclear verdict in only 2 hours. The jury awarded $35 million for loss of society, $10 million for grief, sorrow, and mental suffering, and $5 million each for pain, suffering, and loss of a normal life under the lost chance survival act.

Plaintiff filed a pre-trial motion asking court to not allow Defense counsel to put on testimony regarding or argue that medical providers were the sole proximate cause (learned intermediary).  Plaintiff’s counsel argued that learned intermediary did not appley to this case because preterm infant formula is not prescribed and is readily available to any person.   Judge Foley ruled against Plaintiff and allowed such testimony to be presented.   Defense counsel then tendered the learned intermediary theory in their liability instruction and the Plaintiff’s counsel again argued it should not apply and no evidence was put forward during the course of the trial that would justify adding the language into the jury instructions.  After hearing argument and considering written motions, Judge Foley ruled in favor of the Plaintiff and did not allow the learned intermediary language to be to the liability instruction.

It should be noted that the jury found Mead Johnson liable for negligence, not just strict liability.  Strict liability is easier to prove as you only need to show that the defendant caused the NEC.  Whereas negligence means the jury believed Mead Johnson not only caused the NEC that led to death of Ms. Watson son but that they also breached the standard of care that would have been optimal under the circumstances. The jury sent a clear message to Mead Johnson by awarding the Plaintiff more then was requested that they will not tolerate lack of warnings regarding the ingredients and dangers to premature babies who may be given their product.

This was the first Enfamil case to be tried.  There are over 390 cases pending in the MDL in the North District of Illinois alone and there is no trial date for the bellwether case.  We will have to wait to see what kind of impact this has on the pending cases. Although this case was against the manufacturers and not the hospitals and doctors, it may cause doctors and hospitals to evaluate the risks of products for VLBW and take a closer look at what is in the formula rather than what they may get for free or at a lower cost than donor milk.