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Chalonda Jasper, Individually and On Behalf of All Others Similarly v. Abbott Laboratories

July 8, 2011

CHALONDA JASPER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
ABBOTT LABORATORIES, INC. DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Chalonda L. Jasper ("Jasper") brought a class action suit on behalf of herself and others similarly situated against Abbott Laboratories, Inc. ("Abbott"). Jasper alleges six counts relating to the contamination of Abbott's Similac infant formula, including intentional and negligent misrepresentation; a violation of the Indiana Deceptive Consumer Sales Act, Ind. Code §§ 24-5-0.5 ("DCSA"); breaches of express and implied warranties; and unjust enrichment. Abbott moves to dismiss Jasper's Complaint. For the following reasons, the Court grants Abbott's motion and dismisses Jasper's Complaint without prejudice.

STATEMENT OF FACTS

The following facts are taken from Jasper's Complaint and are assumed to be true for purposes of this Motion to Dismiss. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995).

Jasper, an Indiana resident, purchased a container of Abbott's Similac Advance Early Shield Powder infant formula on Sept. 18, 2010 and began feeding the formula to her son. (Compl. ¶¶ 8, 10.) Roughly four days later, around Sept. 22, 2010, Abbott announced that it was recalling more than five million containers of formula because the product may have been contaminated with beetles or beetle larvae. (Compl. ¶¶ 20, 22.) The container Jasper purchased was one of the 2,000-plus lot numbers recalled. (Compl. ¶ 22.) The Food and Drug Administration found that infants who ingested the formula contaminated with beetles or beetle larvae experienced gastrointestinal discomfort and temporary refusal to eat. (Compl. ¶ 2.) At the time of the recall, Jasper's son had eaten about half of the container of formula. (Compl. ¶ 10.) As a result of the contamination, Jasper and class members suffered "extreme mental anguish and pain and suffering." (Compl. ¶¶ 38, 46.) Jasper does not allege that her son suffered any physical injury.

Abbott's Sturgis, Michigan manufacturing facility has a history of beetle infestation. (Compl. ¶ 26.) In a Department of Health and Human Services ("DHHS") Inspection Report, DHHS found approximately 30 instances of beetles in the facility between 2007 and 2010. (Compl. ¶ 27.) In July 2010, Abbott received a complaint from a consumer who found insects in her Similac formula. (Compl. ¶ 29.) One month later, in August 2010, Abbott received another consumer complaint regarding a weevil found in the formula. (Compl. ¶ 30.)

Abbott marketed the Similac formula as one that "Moms can count on for trusted nutrition and formula that's right for their babies." (Compl. ¶ 17.) Abbott also advertised the formula with statements including:

* "When it comes to the science of nutrition, Similac stands apart."

* "More moms choose Similac. Why? Similac Advance has EarlyShield, and is designed to be more like breast milk and help support your baby's developing immune system. Only EarlyShield has our patented blend of immune-supporting nucleotides-plus prebiotics and carotenoids, nutrients naturally found in breast milk."

* "Nearly 100 years and 280 clinical studies have nourished our most advanced formulas. No wonder it's the #1 brand fed in hospitals-and the choice of more moms."

* "You can trust Similac Sensitive to provide a strong start for your baby's developing digestive system."

* "It's no wonder that a company with such a heritage of innovation was the company to bring moms Similac Advance. Whether they're formula feeding or supplementing their breast milk, they can be confident knowing that Similac Advance is designed to be more like breast milk and to help build a strong immune system."

(Compl. ΒΆ 19.) Jasper alleges that, based on these statements, she bought Similac Advance Early Shield Powder infant formula and ...


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