Baby Formula Litigation - NEC - Mass Tort Minute

Theory of Liability and Science

The allegation is that premature babies who were given cow milk formula developed NEC, or necrotizing enterocolitis.  This is a gastrointestinal injury involving potential perforations in the intestinal tract.  This condition is linked, allegedly, to certain cow milk formulas.  These cow milk formals are toxic in certain instances.  

It doesn't appear that all cow milk formulas cause NEC.  We'll talk about that a bit later in the piece. The cow milk is thought to be toxic for some reason.  And it's important to note this is not a fatal condition.  There are medicines to treat the condition.  But there is a morbidity rate that can be higher than 20%.  It is unclear how damages will be assessed in a case of recovery from the condition.  

Key Requirements for Inclusion in the Litigation

The potential client pool includes the families of premature babies who used cow milk formula.  A premature baby is defined as a baby born prior to 37 weeks gestation.  Premature babies often have underdeveloped intestinal tracts.  This seems to play a key role in making the baby susceptible to toxic cow milk.  Major brands of this formula are Similac and Enfamil.  

Then there has to be diagnosis of NEC.  The condition causes perforations in the intestinal tract that allows bacteria to enter.  There is a potential fatality rate of about 20% if the baby weighs over 5.5 pounds.  That goes up for babies that weigh less.  This is a rare condition.

How To Get Cases

Marketing spends for this tort are going to be high.  In terms of accessible marketing reach, it reminds me of Paraquat in terms of rareness of the claimant pool.  Yet the companies involved are fairly ubiquitous.  On a cost-per-lead basis, this could run several hundred dollars, with a conversion ratio of sub-12%.  On the other hand, the investment could be worth the return if the science breaks through, and these large companies seek to avoid the bad publicity related to harming premature babies.  

Acquisition Cost Index (ACI):    B-

This tort gets a B-  ACI.  I think there are some real medical challenges coming for this tort.  We are in the early stages of learning the science here.  There are a lot more statistical studies needed before it turns into a causation layup.  The potential client pool seems small at this point.  I have questions about whether it is bigger than prima facie.  I mean, these brands seem ubiquitous, so there's probably a ton of use by the public.  So it really must be an issue of incidence of NEC.  That should be a rare condition.  This may portend statistical challenges ahead leading into the Daubert stage.  There are rumors that some cow milk fortification companies may be blamed, bringing in more defendants.  Watch out for the medical causation, as claimants will have to prove a relation between precise toxicity in the formula and NEC itself.  

This unclear statistical and medical horizon really drags down the ACI for this tort.  Moreover, creating even more drag is the cost of acquisition.  Acquisition is running near $20,000 per signed retainer.   Though the tort may end up being lucrative, it may take too much money to get to that point.  The type of product and businesses involved--infant formula products--help to keep this tort litigation an interesting investment because the defendants may be skittish and settle early.

Disclaimer:  As with any Mass Tort Minute post, framing any unfortunate medical situation as a potential marketing opportunity risks minimizing the anguish of the affected individuals.  We take that very seriously.  At Mass Tort Minute we believe that marketing content is a key piece in the access to justice for the affected individuals.  Law firms need to stay in business in order to help, and marketing is key to that.