Dirksen Federal Courthouse, Chicago
CHICAGO — A West Virginia woman whose baby died from a disease allegedly caused by consuming cow's milk-based infant formula won't get the chance to revive her lawsuit against Abbott Labs, the maker of the formula, because the "alternative warning" she and her lawyers proposed wouldn't have made a difference, a federal appeals court has ruled.
On July 24, the U.S. Seventh Circuit Court of Appeals denied the appeal lodged by plaintiff Ericka Mar, as she sought to overturn a federal district judge's ruling shutting down her legal action against Abbott Laboratories over the 2014 death of her 12-week premature infant daughter.
In the ruling, the appeals court acknowledged that doctors agree that human breast milk is the best food choice for newly born children.
But they said that fact alone is not sufficient to allow the mother to continue suing Abbott for allegedly failing to properly warn her and others of the greater danger posed by infant formulas made from cow's milk.
The appellate decision was authored by Seventh Circuit Chief Judge Michael Brennan. Judges Michael Scudder and Candace Jackson-Akiwumi concurred in the decision.
"This is a tragic case by any measure," Brennan wrote in the panel opinion. "But Mar has not shown that her alternative warning would have made a difference."
The decision comes as the latest blow to the efforts by plaintiffs' lawyers to move forward with consolidated cases seeking to extract payouts of potentially billions of dollars from Abbott and its frequent co-defendant Mead Johnson & Co. over claims the companies failed to sufficiently warn parents and doctors that feeding babies cow's milk-based formula substantially increased the risk of those babies developing 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.
Thousands of NEC-related "failure to warn" lawsuits have been filed against Abbott and Mead Johnson in courts in Illinois and throughout the country since the end of 2020.
Abbott and Mead Johnson are the makers of Similac and Enfamil-brand infant formulas, respectively.
At least hundreds of the lawsuits remain pending against the companies in state courts, including in Madison, St. Clair and Cook counties.
However, hundreds of other cases are also pending in a consolidated action before U.S. District Judge Rebecca Pallmeyer in Chicago federal district court.
The cases in both federal and state courts have struggled to gain traction. On one hand, juries in Illinois state courts have handed down big verdicts. In Cook County, for instance, a jury in April 2026 awarded a combined $70 million to the families of four infants who contracted NEC.
However, such verdicts have faced hurdles on appeal. In June 2026, for instance, an Illinois state appeals panel overturned a $60 million verdict entered by a St. Clair County jury in favor of a family that had sued Mead Johnson over NEC-related claims.
In the federal action, plaintiffs have also struggled to move forward with their NEC claims.
As part of that action, Pallmeyer, in consultation with attorneys for both sides, selected four cases to serve as so-called "bellwether" cases. While pre-trial proceedings would continue to be consolidated for the other 700-plus cases, legal teams would prepare to take those four cases to trial.
However, to this point, none of the bellwether cases have made it to a jury. Instead, Pallmeyer granted summary judgment to Abbott Labs in the first three bellwether cases.
In those cases, Pallmeyer has repeatedly found that plaintiffs' central claim — that their babies would have been fed human milk rather than the infant formulas, if the companies had only better warned doctors and the public — doesn't hold up, mostly because alternatives to the cow’s milk-based formulas are in short supply.
In the Mar case, Pallmeyer agreed with Abbott that an "alternative warning" wouldn't have made much difference. The facts of the case showed that human milk was not available to Mar's daughter in sufficient, safe quantities to allow doctors and nurses to feed her baby anything other than a 50-50 blend of Mar's own milk and a baby formula for prematurely born infants created by Abbott Labs.
Essentially, the judge ruled doctors had to feed the baby something, regardless of the increased risk of NEC.
In a more recent ruling in the fourth bellwether case, Pallmeyer has cleared the way for the first federal court NEC trial. In that case, Pallmeyer said Mead Johnson will need to defend itself before a jury over plaintiffs' claims that the company has allegedly had the ability to reformulate its products to a safer version since 2015, but has allegedly chosen not to.
However, as that case moves to trial, the Seventh Circuit rejected the Mar plaintiffs' request to toss Pallmeyer's earlier ruling and let their case move to trial, too.
In that ruling, the judges noted the doctor who had overseen the care of Mar's daughter in West Virginia had testified that it took the hospital five years after the baby's death to complete the creation of a human milk donation program, specifically designed to safely increase supply of human breast milk available to premature babies whose mothers cannot generate sufficient milk to feed the children.
"... It was not something that happened 'overnight,'" Brennan wrote. "... That is, in part, because the record shows several hurdles to clear before establishing a donor milk program: the type of containers, labeling techniques and transportation, personnel and training, storage, and thawing and warming methods."
The judges further noted the doctors and other medical staff overseeing the child's care were aware of the NEC risks associated with cow's milk-based formulas, but still chose to feed the baby the formula blend, because they believed they had no other viable choice to avoid starving the child.
Mar was represented in the case by attorney Jose Rojas, of the firm of Levin Rojas Camassar & Reck, of Hartford, Connecticut.
Abbott Labs was represented by attorneys Linda T. Coberly, Stephen V. D'Amore and Kelly Mannion Ellis, of Winston & Strawn, of Chicago; and James F. Hurst and Rebecca Fitzpatrick, of Kirkland & Ellis, of Chicago.
