Pagan v. Abbott Laboratories, Inc.
2012 WL 5289622
E.D.N.Y2012Background
- Abbott recalled five million containers of Similac infant formula after detecting beetle parts/larvae at its Sturgis Facility.
- Abbott notified the FDA and initiated a recall on September 22, 2010.
- Plaintiffs from New York, Texas, Ohio, and New Hampshire allege unfair/deceptive practices and delayed warnings under multiple state consumer protection laws.
- Plaintiffs sought declaratory, injunctive, and monetary relief in their class action filings, incorporating state subclasses.
- The Court previously ruled on multiple preliminary matters, including dismissals for some state claims and amendes to add Kristie Pagan as New York class representative.
- Plaintiffs moved for class certification under Rule 23, which the Court denied after addressing the defendant’s motion to strike/sur-reply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to strike or allow a sur-reply | Plaintiffs rely on their reply; the court should strike new material. | Defendant acknowledged new material and sought either strike or sur-reply to address it. | Court denied strike and granted sur-reply. |
| Whether New York/New Hampshire classes satisfy Rule 23 | Classes meet numerosity, commonality, typicality, adequacy, predominance, and superiority. | Plaintiffs fail to show numerosity, commonality, typicality, adequacy, or predominance; class not superior. | Plaintiffs' motion for class certification denied. |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (commonality requires classwide resolution of common injury)
- In re American International Group, Inc., 689 F.3d 229 (2d Cir. 2012) (rigorous Rule 23 analysis; coexistence of merits and class criteria)
- Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993) (numerosity and commonality considerations in class actions)
- Brown v. Kelly, 609 F.3d 467 (2d Cir. 2010) (typicality and class action adequacy principles in 23(a))