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Lieff Cabraser & James J. Lee File Necrotizing Enterocolitis (NEC) Injury Lawsuit Against Abbott Laboratories Relating to Manufacture, Marketing and Sale of Similac Neosure Forumla for Infants

By: via Business Wire

Lieff Cabraser and the Legal Offices of James J. Lee announce the filing of a federal injury lawsuit against Abbott Laboratories on behalf of Darius Medley and ChaKoya Robinson, the parents of minor son KM, who has spent the majority of his almost four years of life fighting Necrotizing Enterocolitis ("NEC"), a horrific disease allegedly caused by Abbott Laboratories' cow-based infant formula and/or fortifier Similac Neosure. NEC is a potentially fatal disease that largely affects low birth weight babies who are fed cow-based formula or products. KM, a premature-born, low birth weight baby, was fed Similac Neosure and developed NEC shortly thereafter.

“The tragedy of a human life being permanently disrupted here is palpable and devastating,” stated Lieff Cabraser partner Wendy R. Fleishman, who represents the plaintiffs in the lawsuit. “That any child should suffer lifelong injuries as a result of aggressive marketing of a dangerous product premature infants should never have been given in the first place is heartbreaking.”

Plaintiffs Darius Medley and ChaKoya Robinson bring the civil action in the U.S. District Court for the District of Nevada against Defendant Abbott Laboratories, Inc. for claims arising from what the Complaint alleges was Abbott’s negligent, willful, and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promotion, marketing, distribution, labeling, and/or sale of the product known as Similac Neosure, conduct which led to life-threatening ongoing injuries suffered by Plaintiffs' son KM.

Baby KM was born prematurely at 23 weeks and 5 days on July 6, 2018, at Sunrise Hospital and Medical Center in Las Vegas, Nevada. He weighed 1 pound, 1 ounce and was therefore by definition a low birth weight infant. Baby KM developed NEC within days of being fed Abbott Laboratories' Similac Neosure while he was in the Neonatal Intensive Care Unit at Sunrise Hospital. As noted in the Complaint, science and research have confirmed strong links between cow-based infant formula like Neosure and NEC in premature infants.

The Complaint notes that, notwithstanding strong medical evidence establishing the serious danger that cow-based formula poses for premature infants, Abbott marketed its cow-based products as an equally safe alternative to breast milk, and indeed, has promoted its products as necessary for additional nutrition and growth. Abbott has specifically marketed its formula and fortifier as necessary to the growth and development of premature infants, when in fact its products pose a known and substantial risk to these babies.

In addition, the Complaint reveals that Abbott has attempted to “hook” moms on formula by offering free formula and other free items in baskets given to mothers in hospital and medical clinics with a goal of fomenting brand loyalty, and with creating the appearance of “medical blessing” so that parents continue to use Neosure formula to feed their babies after they leave the NICU, at great expense to the parents and substantial profit to Abbott. One study estimated that formula manufacturers spent $4.48 billion on marketing and promotion in 2014 alone. Another study noted that exposure to infant feeding information through media advertising has a negative effect on breastfeeding initiation, and that exposure to infant feeding information from the media during pregnancy is associated with feeding decisions postpartum. The Complaint notes that upon information and belief, Abbott specifically targets parents of premature infants via its marketing.

“Abbott’s conduct here is nothing short of reprehensible,” notes Lieff Cabraser partner Fabrice Vincent, who also represents the plaintiffs in the action. “In addition to securing justice for Baby KM, Abbott Laboratories must get a strong and unmistakable message that its conduct in the aggressive and inappropriate marketing of Neosure to premature infants must stop.”

The Complaint details that Abbott’s practice of trying to get parents to choose formula over breast milk goes back decades, during which time the company has promoted its formula as healthier, necessary for adequate nutrition, and the choice for the modern, sophisticated mother. Their advertising has even at times attempted to portray breastfeeding as an inferior and less sophisticated choice, against substantial medical evidence.

Following his birth, Baby KM was fed Similar Neosure. As a result, the complaint alleges that Baby KM suffered life-threatening NEC that required surgeries. The NEC has caused him to suffer failure to thrive, severe and ongoing developmental delays, difficult bowel movements, constipation and significant suffering to this day. Baby KM’s parents had no knowledge that Similac Neosure would increase the risk of their baby developing NEC; indeed, Abbott promotes Similac Neosure on its website and other mediums as a safe product, and one specifically needed by premature babies for adequate growth. As the Complaint observes, although Abbott engages in an aggressive marketing campaign designed to make parents believe that Neosure is safe and necessary for growth of a premature infant, the product is in fact highly dangerous to premature infants, and that Neosure substantially increases the chances of a premature infant both developing NEC and of dying.

The Complaint states claims for negligence, negligent misrepresentation, negligence product liability, strict liability-products liability, as well as violations of Nevada's Deceptive Trade Practices Act, and seeks monetary and punitive damages.

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