Covington partner Paul Schmidt and associate Nicole Antoine were named Litigators of the Week in AmLaw Litigation Daily for their work securing an Illinois appellate ruling that reversed the only verdict against Mead Johnson finding that cow's milk-based infant formula given to premature babies caused necrotizing enterocolitis, or NEC. In March 2024, an Illinois jury awarded $60 million against Mead Johnson. The Fifth District Court of Appeal reversed that verdict, holding that the trial court erred by failing to apply the learned intermediary doctrine, the legal principle that manufacturers of prescription drugs and medical devices have a duty to provide any required warnings to healthcare providers, rather than patients. The appellate court held that the doctrine applies to Mead Johnson's formula administered to premature babies in the NICU.
As Paul explained, "Preterm formula is administered in the NICU, one of the most intensive medical care settings that exists. The learned intermediary issue was the most important issue in this appeal because it determined whether the company's legal obligations would track the reality of how these products are used in the real world. We built the factual record on the relevant appellate issues throughout trial and preserved our legal positions from before trial through post-trial briefing, allowing us to beat back procedural arguments about the issues not being properly appealed."
Nicole added, "These cases have meaningful public health implications given the medical need for preterm infant nutrition and the limited availability of human milk for all infants. We are grateful to see recognition from the court of the critical medical importance of preterm formula, which our clients have always championed."
In addition to Paul and Nicole, the Covington team representing Mead Johnson included Phyllis Jones, Emily Ullman, Amber Charles, Elizabeth Fouhey, and Alice Greenhill.
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