NEC Wrongful Death Claims: When a Premature Baby Does Not Survive

What Is a Wrongful Death Claim in NEC Cases

A wrongful death claim is a civil lawsuit filed by the surviving family members — typically the parents — of a person who died as a result of another party's negligent or wrongful conduct. In NEC cases, the wrongful death theory holds that Abbott and/or Mead Johnson's defective product (cow's milk-based premature formula) and their failure to warn of the NEC risk caused or substantially contributed to the infant's death from NEC. Wrongful death statutes vary by state, but they universally allow the family of the deceased to sue for the damages they have suffered as a result of the death. In the context of infant NEC deaths, these damages include the parents' loss of the companionship, society, and comfort of their child; the emotional pain of witnessing the infant's illness and death; funeral and burial expenses; and in some states, the value of the life that the infant would have led.

Who Can File a Wrongful Death Claim

In most states, the right to file a wrongful death claim for an infant's death belongs to the parents of the deceased child. Both the mother and father typically have standing to sue and can recover damages independently or jointly. In some states, a personal representative of the infant's estate files the wrongful death claim on behalf of the estate and distributes recovery to the statutory beneficiaries (parents, siblings in some states). Grandparents and siblings may have claims in certain jurisdictions if they were legal dependents of the deceased or if the state's wrongful death statute extends beyond immediate parents. An attorney can advise you on who has standing in your specific state.

The Statute of Limitations for NEC Wrongful Death

Wrongful death statutes of limitations are state-specific and run from the date of death — not from the date of the NEC diagnosis. Most states impose a 2- to 3-year deadline. Unlike personal injury claims for surviving minors, minor tolling does not apply to wrongful death claims because there is no surviving minor plaintiff whose rights are being protected. However, the discovery rule can toll the wrongful death SOL in states that recognize it, when the causal connection between the formula and the NEC death was not reasonably discoverable at the time of death. Given that many families did not learn about the formula-NEC connection until reading about the MDL — which did not receive major public attention until late 2022 — some courts have held that the discovery rule tolled wrongful death SOL for families who had no reason to know of the formula link. This is a contested and highly fact-specific legal question. If your baby died from NEC, contact an attorney immediately, regardless of when the death occurred.

The Emotional Reality: Pursuing Justice While Grieving

Families who have lost a premature baby to NEC often carry enormous grief, guilt, and unanswered questions — and may feel profound reluctance to relive those experiences through litigation. A compassionate NEC attorney understands this and will guide the process in a way that minimizes your burden while protecting your rights. You will not be required to repeatedly describe the trauma of losing your baby in graphic detail. Your attorney handles the investigative, procedural, and evidentiary work. Many families who pursued NEC wrongful death claims have said that doing so helped them find meaning in their loss — knowing that their lawsuit contributed to accountability for the manufacturers whose products may have taken their child.