556 F.Supp.3d 70
D. Conn.2021Background
- Infant Aries Peterson was born at 27 weeks, spent his life in the NICU, and died after being fed breastmilk plus three Abbott "exempt" prematurity formulas (Similac NeoSure, Similac HMF, Similac Special Care) that contain cow's milk.
- Plaintiff Anika Hunte (administratrix) alleges Abbott knew cow‑milk formulas increase risk of necrotizing enterocolitis (NEC) in preemies, failed to warn, deceptively marketed the products, and that the formulas caused Aries' NEC and death.
- Claims: CPLA causes of action (failure to warn, design defect (strict liability), negligence, negligent misrepresentation, breach of express warranty), intentional misrepresentation, CUTPA, and parents' loss of filial consortium.
- Abbott moved to dismiss; Court granted in part and denied in part. Surviving federal‑court claims: CPLA on failure‑to‑warn (deferred and subject to certification), design defect (not dismissed), and negligence; negligent/intentional misrepresentation, CUTPA, and breach of express warranty were dismissed.
- The Court certified two state‑law questions to the Connecticut Supreme Court: (1) whether the learned intermediary doctrine applies to these exempt infant formulas (impacting the failure‑to‑warn duty) and (2) whether Connecticut recognizes a cause of action for loss of filial consortium.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Abbott had a duty to warn parents or medical professionals (learned intermediary) | Hunte: duty may run to parents; warnings were inadequate to parents and/or medical professionals and caused harm | Abbott: if duty ran to parents, Hunte fails to plead causation; learned intermediary (duty to physicians) should apply | Court: Declined to decide; will certify the learned‑intermediary question to CT Supreme Court. Failure‑to‑warn CPLA claim survives (denied without prejudice pending certification). |
| Design‑defect (strict liability) and federal preemption | Hunte: formulas unreasonably dangerous by design (cow‑milk inclusion); alternatives exist | Abbott: design claims may be preempted by federal regulation of infant formulas | Court: Did not dismiss; deferred resolution of preemption (claim survives at pleading stage). |
| Negligence (including negligent design and post‑sale duty to warn/investigate) | Hunte: alleges negligent design and negligent post‑sale failure to warn/investigate adverse events | Abbott: claim is duplicative and fails Rule 8; should be dismissed with other claims | Court: Denied dismissal; construed negligence claim as negligent design and negligent post‑sale duty to warn and allowed to proceed. |
| Negligent and intentional misrepresentation (fraud‑based claims) | Hunte: widespread marketing and membership in Similac mailing list caused reliance | Abbott: claims sound in fraud and must meet Rule 9(b); plaintiff did not plausibly allege reliance or scienter | Court: Dismissed negligent and intentional misrepresentation for failure to plead with particularity, lack of plausible reliance, and inadequate scienter. |
| CUTPA claim (whether precluded by CPLA) | Hunte: marketing caused independent financial and other harms (e.g., reduced breastmilk, overpaying, medical costs) distinct from product defect harm | Abbott: CUTPA claim is a masked product‑liability claim precluded by the CPLA's exclusivity | Court: CUTPA dismissed as precluded by the CPLA because alleged harms flow from product‑caused personal injury/death rather than separate financial injury. |
| Loss of filial consortium (availability under CT law) | Parents assert derivative claims for loss of filial consortium | Abbott: move to dismiss if underlying claims dismissed | Court: Declined to dismiss; because state law is unsettled, certified question to Connecticut Supreme Court and denied dismissal without prejudice. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state a plausible claim; courts accept well‑pleaded factual allegations and draw reasonable inferences)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard at pleading stage; allegations must raise right to relief above speculative level)
- Bifolck v. Philip Morris, 324 Conn. 402 (2016) (elements governing Connecticut product‑liability claims)
- Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120 (2003) (CPLA is exclusive remedy for product injuries; CUTPA claims precluded when they are masked product‑defect claims)
- Soto v. Bushmaster Firearms Int'l, LLC, 331 Conn. 53 (2019) (CUTPA wrongful‑advertising theory can survive where claim is not a product‑defect disguise)
- Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124 (2d Cir. 1994) (fraud pleading: must plead facts giving rise to a strong inference of fraudulent intent)
- Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002) (when extrinsic documents are integral to complaint, court may consider them on a Rule 12(b)(6) motion)