'Make it Hurt': How TorHoerman Scored Groundbreaking $495M Formula Verdict

Robynn Davis was in the neonatal intensive care unit soon after being born in 2021 when she was given Similac infant formula made by Abbott Laboratories Inc.

That’s when she took a turn for the worse, according to Jake Plattenberger, who represents Robynn’s mother, Margo Gill. And it’s what might have swayed jurors who issued a $495 million verdict on July 26, he said.

“That was an important day, because the jury understood that at this point this was a child medically stable and doing well and trending in the right direction before she received Abbott’s product,” Plattenberger told Law.com.

The verdict, returned by a jury in St. Louis, is the first against Abbott in a case linking necrotizing enterocolitis, or NEC, to cow’s milk-based infant formula designed for premature babies. Sold in hospitals, not in retail stores, the formula is touted as a lifesaving alternative to breast milk, but lawsuits contend that it is linked to NEC, a gastrointestinal illness that sickens or kills premature babies.

Other trials are scheduled in Missouri, Illinois, Pennsylvania and Washington, D.C. Another 400 cases were coordinated in the U.S. District Court for the Northern District of Illinois before Judge Rebecca Pallmeyer.

Plattenberger, of TorHoerman Law in Chicago, led a trial team that included firm founder Tor Hoerman, in Edwardsville, Illinois, and lawyers from two other firms: Jack Garvey, a St. Louis partner at Stranch, Jennings & Garvey and Alan Holcomb at Turnbull, Holcomb & Lemoine in Atlanta.

Abbott, represented by James Hurst of Kirkland & Ellis in Chicago, did not respond to a request for comment. In court, Hurst told jurors that Davis had a “major hypoxic event” when she was born, causing permanent brain injuries. She suffered severe pulmonary hemorrhages and underwent surgery before receiving any of Abbott’s formula, he said.

But that wasn’t a “real picture” of what was going on with Davis in the hospital, Plattenberger told Law.com.

“The defendants did their best to try to paint this picture of this baby in this constant state of crisis and failing health from the time she was born and throughout,” he said. “We felt that wasn’t an accurate picture of what was going on with this child.”

‘It’s a Gut Punch’

The verdict is the second involving NEC and infant formula. In March, another jury in Illinois’ St. Clair County Circuit Court awarded $60 million to the mother of a premature baby who died after receiving Enfamil infant formula made by a different manufacturer, Mead Johnson.

“The trial in Illinois involved a child who did not survive,” Plattenberger said. “Our trial involved a child that did survive and has lifelong severe injuries and things they’ll be dealing with. The case against the defendants is always a little different: different documents, different depositions.”

The Illinois case also did not involve punitive damages.

The Missouri verdict included $95 million in compensatory damages, such as medical care for Davis, who cannot walk or talk and is fed through a tube because of brain injuries caused by NEC. After finding Abbott liable and awarding compensatory damages, the jury heard brief arguments on July 26 regarding potential punitive damages.

James F. Hurst, partner, Kirkland & Ellis. (Courtesy photo)

“Finish the job. Make them pay attention. Make it hurt, because it’s supposed to hurt,” Plattenberger told jurors, according to the livestream of the trial by Courtroom View Network.

He referenced Abbott’s billions of dollars in profits and revenues, but he told Law.com he deliberately did not give the jury a specific number for punitive damages.

“I said, ‘It’s up to you guys. What you think is the right number here,’” he said.

Hurst gave no figure either.

“You’ve sent a huge message already,” he told jurors, according to Courtroom View Network. “It’s a gut punch. It hurts as hard as it can hurt.”

The jury came back with $400 million in punitive damages.