Sisk v. Abbott Laboratories
1:11-cv-00159
W.D.N.C.Jun 19, 2012Background
- Plaintiff Kimberly Sisk alleges her infant son S.A.S. suffered meningitis and severe brain damage from consuming Abbott’s Similac Advance formula contaminated with Enterobacter sakazakii.
- S.A.S. was born October 19, 2004; hospital and pediatrician provided free samples of the formula.
- FDA testing linked Enterobacter sakazakii to the formula-preparation environment; unopened samples tested negative.
- Plaintiff asserts manufacturing defect, design defect, and failure-to-warn theories under North Carolina law; labels allegedly lacked warnings about non-sterility and bacterial risk.
- Defendant allegedly marketed and distributed free samples through hospitals and physicians, and advertised safety claims about neonatal immunity and safety.
- Court’s procedural posture: defendant moved to dismiss under Rule 12(b)(6); recommendation to grant in part and deny in part
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a manufacturing defect claim is plausible under NC law | Sisk alleges product was defective when under Abbott’s control and caused injury | Abbott contends no sale/interaction with plaintiff; insufficient manufacturing defect facts | Manufacturing defect claim plausible; deny dismissal |
| Whether a design defect claim is plausible under NC law | Two safer alternatives could be feasible design changes (biocide, sterile liquid formula) | Alternatives are not clearly proven feasible; summary judgment warranted later | Design defect claim plausible; deny dismissal as to this claim |
| Whether a failure-to-warn claim under NC Gen. Stat. § 99B-5 is viable | Defendant knew risks post-sale and failed to warn; warning duty extends to consumer use | Arguments focus on whether warning was required and causation; not clearly established | Failure-to-warn claim viable; deny dismissal |
| Whether NC UCC warranty claims apply given no sale of goods occurred | Samples to hospital/physician constituted part of a consumer transaction | No sale of goods occurred; UCC not applicable | Dismiss Counts Two, Three, and Four (UCC warranty claims) for lack of sale of goods |
| Whether NC UDTPA claim is viable given causation proof | False advertising allegedly misled Plaintiff and proximately caused injury | Plaintiff failed to plead actual reliance on advertising prior to feeding S.A.S. | Count Five (UDTPA) dismissed for lack of causation evidence |
Key Cases Cited
- Red Hill Hosiery Mill, Inc. v. Magnetek, Inc., 530 S.E.2d 321 (N.C. Ct. App. 2000) (negligible warning and manufacturing duties in product liability)
- Carlton v. The Goodyear Tire & Rubber Co., 413 F. Supp. 2d 583 (M.D.N.C. 2005) (proof and duties in product liability; defect causation standards)
- Ziglar v. E.I. Du Pont De Nemours & Co., 280 S.E.2d 510 (N.C. Ct. App. 1981) (warning obligations beyond product characteristics; broad duty to warn)
- Nicholson v. American Safety Util. Corp., 476 S.E.2d 672 (N.C. Ct. App. 1996) (duty to warn; consumer product dangers not limited to special characteristics)
- DeWitt v. Eveready Battery Co., Inc., 550 S.E.2d 511 (N.C. Ct. App. 2001) (design defect and feasibility considerations; warnings duties explored)