Jury urged to hold formula makers responsible for premature baby's illness
Adds material from Abbott, Mead Johnson opening statements
By Brendan Pierson
Oct 2 (Reuters) -A lawyer for a Missouri mother on Wednesday urged jurors to hold Abbott ABT.N, Reckitt's RKT.L Mead Johnson unit and St. Louis Children's Hospital responsible for a severe intestinal illness that she says her prematurely born son developed after the hospital fed him the companies' formulas.
Tim Cronin, who represents Elizabeth Whitfield and her son Kaine, told the jurors in an opening statement at trial in St. Louis state court that the two companies have long known that feeding cow's milk-based formula to very small premature babies increases their risk of necrotizing enterocolitis (NEC). But, they "made no attempt to tell parents at all, and no serious legitimate attempt to communicate to hospitals or doctors about the extent of the risk," he said.
"Companies have to be honest with us about their products," he said.
James Hurst, a lawyer for Abbott, told jurors that formula did not cause NEC, but rather that a baby's mother's milk, and to a lesser extent donated human milk, protected against it. Cronin rejected that distinction as "silly," saying that a lack of protection was effectively the same as causing the disease.
Hurst also said that the benefits of breast milk were already widely known to neonatologists and included in guidance from government agencies and medical groups. In fact, he said, Abbott regularly sponsors studies and talks that acknowledge the beneficial effects of human milk for preventing NEC.
"It's in the published literature and we discuss it constantly," he said.
Both Hurst and Phyllis Jones, a lawyer for Mead Johnson, said that Kaine was given his mother's milk every day he was in the hospital. Jones also stressed that, according to his medical records, Kaine received Mead Johnson's formula only once.
"He received an ounce and a bit on a single day seven years ago," she said.
Reuters watched the trial through Courtroom View Network. A lawyer for the hospital is expected to give its opening statement later.
NEC occurs almost exclusively in premature babies and has an estimated fatality rate of more than 20%.
The lawsuit is one of close to 1,000 similar cases now pending, and the third to go to trial. It is the first time both companies have faced trial together, and the first against a hospital. The previous trials have resulted in verdicts of $60 million against Mead Johnson and $495 million against Abbott.
Kaine was born at St. Louis Children's in 2017 at less than 28 weeks gestation, weighing just over 1,000 grams, which is approximately 2.2 pounds.
Kaine developed NEC the following month after being fed both companies' formulas in the neonatal intensive care unit, Cronin told the jury. Kaine had to have 80% of his bowel surgically removed, which has left him with permanent health problems including malnutrition, developmental delays and cerebral palsy, Cronin said.
The lawsuit and others like it concern specialized formula for premature babies used in hospitals, not ordinary formula sold in stores.
Cronin said the companies should have warned that their formulas are dangerous for babies under 1,500 grams, which is approximately 3.3 pounds. Those babies should receive donated human milk if their mothers' milk is not available, he said.
Cronin also said that St. Louis Children's should be held responsible for feeding Kaine formula. At the time, he said, the hospital's protocol was to prioritize donor milk for babies under 1,000 grams, though it later raised the threshold to 1,500 grams.
Hurst said that numerous other factors better explained Kaine's illness, including very early birth, multiple infections and prolonged treatment with antibiotics, which can disrupt gut bacteria. He also said that some of Kaine's doctors suspected a genetic condition, though no genetic testing has been done.
The litigation over formula has prompted alarm among doctors who say they fear that the companies could stop offering the products, which they need to feed babies when breast milk is not available.
The case is K.W v. Mead Johnson et al, Missouri Circuit Court, 22nd Judicial Circuit, City of St. Louis, No. 2222-CC06214.
For Whitfield: Tim Cronin of the Simon Law Firm
For Abbott: James Hurst of Kirkland & Ellis
For Mead Johnson: Phyllis Jones of Covington & Burling
Read more:
Abbott, Reckitt face trial over premature baby formula amid alarm from doctors
Reckitt unit hit with $60 million verdict in Enfamil baby formula case in Illinois
Abbott must pay $495 million in premature infant formula trial, jury finds
(Reporting By Brendan Pierson in New York)
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