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Pagan v. Abbott Labs., Inc.

United States District Court for the Eastern District of New York

October 20, 2012, Decided; October 20, 2012, Filed

10-CV-4676(ADS)(WDW)

Opinion

 [*141]  MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This case arises from the recall by Abbott Laboratories, Inc. ("Abbott" or "the Defendant") of five million containers of its Similac brand infant powder formula that were potentially contaminated with beetle parts and larvae, which could cause gastrointestinal discomfort and refusal to eat. The Plaintiffs allege that Abbott engaged in unfair and deceptive practices by misrepresenting the safety of Similac and failing to timely warn consumers of the dangers associated with the contaminated product in violation of the consumer protection statutes in New York and New Hampshire.

Presently before the Court is a motion by the Plaintiffs for class certification and a motion by the Defendant to strike the Plaintiffs' reply or, in the alternative, to file a sur-reply. For the reasons set forth below, the Court (1) denies the Defendant's motion to  [*142] strike the Plaintiffs'  [**2] reply; (2) grants the Defendant's motion to file a sur-reply; and (3) denies the Plaintiffs' motion for class certification.

I. BACKGROUND

Abbott formulates, designs, manufactures, markets, advertises, distributes and sells infant powder formulas under the brand name Similac. In September 2010, during an internal quality review at its Sturgis, Michigan facility ("the Sturgis Facility"), Abbott detected the presence of a common warehouse beetle and its larvae in its powdered formula. Subsequently, on September 20, 2010, Abbott notified the United States Food and Drug Administration ("FDA") "that based on its facility inspection, root cause investigation, and finished and in-process infant formula powder test results they would be initiating a product recall." (Def. Opp., Ex. E.) As a result, on September 22, 2010, Abbott recalled five million containers of Similac infant formula products (Def. Opp., Exh. F).

The original plaintiffs in this case were Shelley A. Leonard, a resident and citizen of the State of New York ("the New York Plaintiff"); residents and citizens of the State of Texas Esther Alexander, Bridgett Herrera, and Velicia Mata ("the Texas Plaintiffs"); LeRon Davis, a resident  [**3] and citizen of the State of Ohio ("the Ohio Plaintiff"); and Ashley Sullivan, a resident and citizen of New Hampshire ("the New Hampshire Plaintiff" and collectively "the Plaintiffs"). According to the Plaintiffs, they each purchased the recalled formula during an undefined "relevant time period," rather than purchasing a less expensive alternative, based on various statements by Abbott that indicated that Similac was safe for consumption by infants. The Plaintiffs also allege that their infant children became ill after consuming the contaminated Similac formula.

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287 F.R.D. 139 *; 2012 U.S. Dist. LEXIS 159273 **; 83 Fed. R. Serv. 3d (Callaghan) 1465

KRISTIE PAGAN, ESTHER ALEXANDER, BRIDGETT HERRERA, VELICIA MATA, and ASHLEY SULLIVAN, individually and as parents and natural guardians of their minor children and on behalf of all others similarly situated, Plaintiffs, -against- ABBOTT LABORATORIES, INC., Defendant.

Prior History: Leonard v. Abbott Labs., Inc., 2012 U.S. Dist. LEXIS 30608 (E.D.N.Y., Mar. 5, 2012)

CORE TERMS

class member, class certification, commonality, reply, recalled, class action, predominance, beetle, marks, quotation, numerosity, sur-reply, products, contaminated, papers, consumers, deceptive, practices, certify, infant, putative class, damages, formula, consumer protection, residents, common question, demonstrating, adequacy, estimate, parties

Civil Procedure, Defenses, Demurrers & Objections, Motions to Strike, General Overview, Pleading & Practice, Motion Practice, Special Proceedings, Class Actions, Certification of Classes, Evidence, Burdens of Proof, Preponderance of Evidence, Prerequisites for Class Action, Allocation, Numerosity, Commonality, Typicality, Adequacy of Representation, Predominance, Superiority, Antitrust & Trade Law, Consumer Protection, Deceptive & Unfair Trade Practices, State Regulation