Suit Over Beetle-Tainted Baby Food Advances

     CHICAGO (CN) – A New Jersey mother whose baby got sick after eating Similac infant formula laced with beetles and larvae can proceed with a class action against pharmaceutical giant Abbott Laboratories for shipping the tainted formula, a federal judge ruled.



     Abbott, which dodged a different class action this summer over the same shipment, recalled millions of contaminated units in September 2010 after discovering beetle larvae in various units of its Similac powdered infant formula.
     Shortly thereafter, Rebecca Brown of New Jersey allegedly purchased one of the tainted bottles of Similac and fed it to her daughter, who vomited and required pediatric treatment. After Brown switched to a new formula, the feeding issues disappeared.
     Brown then filed a putative class action alleging claims such as strict liability, negligence and fraud, demanding that Abbott pay damages and disgorge any profits it received through selling the contaminated Similac.
     Abbott moved for summary judgment on all claims.
     U.S. District Judge John Grady dismissed most of Brown’s claims with prejudice, but allowed her to proceed on the counts of breach of express warranty and state-law violations.
     The court began by noting that the beetle-infested Similac did not necessarily cause Brown’s daughter to get sick. “It is possible that Brown’s daughter spit up because infants often spit up, for reasons other than contaminated baby formula,” Grady wrote. Nonetheless, given that both parties’ versions of the events are plausible, he declined to dismiss the suit for failure to state a claim.
     The court dealt with nearly all of Brown’s claims in short order, with reference to the New Jersey Product Liability Act (NJPLA). Because Brown sufficiently alleged that she had been “harmed” within the meaning of the act, her claim under it superseded most of her common-law tort claims.
     “The NJPLA ‘subsumes’ all other causes of action for ‘harm caused by a product,'” Grady explained.
     Brown had noted that the act distinguishes between harm caused by a product and harm caused by its advertising. She claimed that economic loss on the purchase price of the formula, separate from her daughter’s illness, justified many of her other tort claims.
     But Grady disagreed, noting that Brown had alleged that “Abbott offered to refund Similac purchases provided that ‘the purchaser still has the lot number from the tub containing the Similac product.'”
     “A plaintiff cannot decline a refund and then sue to recover the purchase price,” the 18-page decision states.
     Grady also found that the act did not subsume Brown’s express-warranty claim, which alleges that Abbott advertises Similac Isomil Soy “to parents seeking to ‘comfort [their] baby’s fussiness and gas,'” telling consumers that the product is “specially designed with the gentleness of soy to soothe the tummy.”
     This representation stood apart from other ads Brown had cited, but were “either irrelevant or puffery,” Grady wrote, citing one ad that said, “Moms can count on [Similac] for trusted nutrition and the formula that’s right for their babies.”
     But “Abbott’s representations about Similac’s soothing qualities are more specific,” Grady wrote.
     “A fact-finder could conclude that Abbott promised a soothing product, and instead delivered a defective product that caused ‘gastrointestinal discomfort,'” he added.
     A status hearing is set for Oct. 12.

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