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From Products Liability Law Daily, June 4, 2013

Brain Damaged Infant’s Conservator Presented Sufficient Evidence on Causation, Warning Defect for Claims Against Formula Manufacturer

By John W. Scanlan, J.D.

The conservator of an infant that suffered brain damage from meningitis that was allegedly caused by her ingestion of contaminated infant formula could maintain various product liability claims against the manufacturer of the formula, a U.S. District Court for the Northern District of Iowa ruled (The Security National Bank of Sioux City, Iowa v. Abbott Laboratories, June 3, 2013, Bennett, M.). The court found that the testimony of the conservator’s experts on causation could be presented to the jury and that the conservator had successfully raised a jury question on its warning defect claim.

Background. An infant (“JMK”) was diagnosed with meningitis from Enterobacter sakazakii, a Cronobacter (C. sak), and suffered severe brain damage from her infection. The Security National Bank of Sioux City, Iowa, as conservator for JMK, brought product defect and breach of warranty claims against Abbott Laboratories, alleging that its Similac NeoSure powdered infant formula (PIF) caused JMK’s infection. Abbott moved for summary judgment, and also moved to exclude or limit the proposed testimony of the conservator’s experts—a food safety scientist, a microbiologist, and a pediatrician—on medical and scientific causation.

Causation. The reasoning and methodology underlying the opinions of three experts presented by the conservator were scientifically valid, and the opinions could be applied to the facts at issue. The experts’ “ruling in” methodology showed that Abbott’s PIF was a potential source of the C. sak that infected JMK, and their “ruling out” methodology demonstrated that it was the most likely source of the C. sak. The court found that the conservator’s experts had an adequate factual basis; that Abbott’s complaints about the experts’ reasoning and methodology actually were more of a disagreement with their conclusions; that the experts had confronted Abbott’s complaints; and that the proposed testimony was both relevant and would aid the jury.

Warning defect. The conservator successfully raised a jury question on the causation element of its warning defect claim. Although the claim was for a negligent failure to warn, Iowa’s Supreme Court has adopted the Restatement (Third) of Torts: Products Liability sections 1 and 2, under which there is no distinction between strict liability claims and negligence in failure to warn claims. The issue was whether the PIF was defective because it provided inadequate warnings and whether the omission of reasonable instructions caused the harm. Abbott’s argument that Megan Surber, JMK’s mother, purportedly had not read the label was not dispositive of the warning defect claim, according to the court. The conservator presented an affidavit by Surber in which she stated that she would not have fed JMK the NeoSure PIF if the label had stated that it was unsuitable for an infant under 28 days, that it could contain harmful bacteria, or that liquid formula would be safer. This affidavit was sufficient to raise a question for the jury.

Warranties. The conservator failed to carry its burden regarding the breach of warranty claims because it did not prove that a “sale” took place. Abbott argued that the infant formula was given to the hospital as a gift, not for consideration. No case law was presented holding that a donor’s anticipation of an economic benefit from a gift as part of a marketing strategy satisfied the requirement that consideration be present for a sale to take place under state law in order to support a breach of warranty claim. There was no factual basis for the argument that Abbott had received any consideration for the donation of the baby formula.

The case number is C 11-4017-MWB.

Attorneys: Amanda Brandy Van Wyhe (Vriezelaar, Tigges, Edgington, Bottaro, Boden & Ross, LLP) for the Security National Bank of Sioux City, IA; John C. Gray (Heidman Law Firm, LLP) for Abbott Laboratories.

Companies: Abbott Laboratories.

MainStory: TopStory EvidentiaryNews ExpertEvidenceNews WarningsNews BabyProductsNews FoodBeveragesNews IowaNews

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