Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 1 of 17 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KATHLEEN A. BRANDNER, individually, and CLASS ACTION COMPLAINT on behalf of her minor child M.B., individually and on behalf of all others similarly situated NO.: 2:10-cv-03242 Plaintiffs SECTION: R Versus MAGISTRATE: (3) ABBOTT LABORATORIES, INC., d/b/a ABBOTT SALES, MARKETING & DISTRIBUTION CO., and ABBOTT LABORATORIES d/b/a ABBOTT NUTRITION Defendants, FIRST SUPPLEMENTAL AND AMENDING CLASS ACTION COMPLAINT NOW COMES KATHLEEN A. BRANDNER, individually, and on behalf of her minor child M.B., and, on behalf of themselves and all others similarly situated, and now pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), supplement and amend the original Complaint to name an additional defendant, to revise and restate the class definition, to add allegations under Louisiana law and to strike certain allegations, now with respect state for their supplemental and amended Complaint as follows:
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 2 of 17 1. This class action seeks damages and injunctive relief to redress Defendants sale of defective infant formula under the brand name Similac that contained contaminants including parts and pieces of beetles and beetle larvae, and that has caused, or will cause in the future, damage including injuries to infants who consume the Similac, and damages including medical expenses, worry, and emotional distress to the parents of infants who consume the Similac. 2. Defendants have publicly admitted that they sold the contaminated Similac with containing the contaminants including parts and pieces of beetles and beetle larvae. This class action seeks to obtain for Plaintiffs and the Class full and complete monetary and injunctive relief under federal and applicable state law. 3. Plaintiffs are: A. Kathleen A. Brandner is an individual consumer who, at all times material hereto, was and is a resident of Jefferson Parish and a Citizen of Louisiana. Plaintiff M.B., is Mrs. Brandner s infant child who also resides in Jefferson Parish, Louisiana. 4. Defendants are: A. Abbott Laboratories, Inc., a corporation organized and existing under the laws of Delaware with its principal place of business located in North Chicago, Illinois, d/b/a Abbott Sales, Marketing & Distribution Co. For the purposes of diversity jurisdiction, Abbott may be considered a citizen of Illinois and/or Delaware. At all times relevant hereto, Abbott was and is doing business within this judicial district. 2
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 3 of 17 B. Abbott Laboratories an Illinois Corporation d/b/a Abbott Nutrition. (Defendants Abbott Laboratories, Inc. and Abbott Laboratories are hereinafter collectively referred to as Abbott ). 5. Jurisdiction in this matter is proper pursuant to 28 U.S.C. 1332 because all Plaintiffs and the Class are diverse in citizenship in relation to Defendants and because the amount in controversy exceeds $75,000.00, exclusive of attorney s fees, costs and interest. 6. Jurisdiction in this matter also lies under the Court s supplemental jurisdiction, 28 U.S.C. 1367, because all state-based claims asserted herein arise out of the same transaction or occurrence as claims otherwise based on diversity jurisdiction. 7. Venue is proper in the Eastern District of Louisiana under 28 U.S.C. 1391 because a substantial part of the events or omissions giving rise to the claim occurred in this district. 8. This action arises as a result of a course of conduct by Defendants in manufacturing, producing, supplying, marketing, selling, advertising, and otherwise distributing Similac infant formula that contained contaminants including parts and pieces of beetles and beetle larvae and was unfit and dangerous for normal use, and caused Plaintiffs and the Class to suffer damages. 9. Abbott is in the business of formulating, designing, manufacturing, marketing, advertising, distributing and selling various infant powder formulas including those contained in rectangular plastic tubs. Abbott formulates, designs, manufactures, markets, advertises, distributes and sells 3
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 4 of 17 Similac products which it promotes on its packaging as being safe for infants. Similac products are sold in grocery stores and pharmacies throughout the United States, including Sam s Club, where Plaintiff Kathleen Brandner purchased the product. In 2010, Abbott has sold millions of its Similac products in the United States. 10. Similac infant formula contaminated with contaminants including parts and pieces of beetles and beetle larvae is harmful to infants who consume formula and could cause those infants to experience symptoms of gastrointestinal discomfort and refusal to eat as a result of small insect parts irritating the GI tract, and in some cases my necessitate medical intervention and related expenses. 11. The packaging of the Similac infant formula products promotes their use to build immune support, strong bones and brain and eye. In addition, Abbotts marketing claims that: Each of the formulas in our line provides the balance of protein, minerals, and other nutrients that helps give babies a strong start in life. A baby s first year is so important, so count on Similac for nutrition you can trust. 12. The Similac infant formula product packaging makes much of Similac being a formula approved and used most by hospitals. In this regard, Similac packaging boasts that it is safe for the consumption by infants. 4
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 5 of 17 13. On September 22, 2010, Abbott announced that consumers should immediately stop using Similac powder products because they were believed to contain pieces of beetles or beetle larvae. The recall included certain Similac powder product lines offered in plastic containers, and certain Similac powder product lines offered in sizes such as 8-ounce, 12.4-ounce and 12.9-ounce cans. Abbott s announcement stated: Abbott is recalling these products following an internal quality review, which detected the remote possibility of the presence of a small common beetle in the product produced in one production area in a single manufacturing facility. The United States Food and Drug administration (FDA) has determined that while the formula containing these beetles poses no immediate health risk, there is a possibility that infants who consume formula containing the beetles or their larvae, could experience symptoms of gastrointestinal discomfort and refusal to eat as a result of small insect parts irritating the GI tract. If these symptoms persist for more than a few days, a physician should be consulted. 14. Plaintiff, Kathleen Brandner, has purchased Similac products, and her infant chiild M.B. has consumed said products since April 2010. 15. On or about September 22, 2010, Kathleen Brandner learned of the Abbott Similac recall notice while on the internet. She then went to the Abbott recall website and determined from the recall information posted thereon that the container of Similac product that she was currently using to feed her infant child and bearing lot number 89241T20 was part of the Abbott recall. 5
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 6 of 17 16. Kathleen Brandner next checked the lot numbers 85430T20, 86542Y20, 87880T20 as found on the other containers that she had used to feed her infant child since April 2010. Each of the lot numbers were part of the recall according to Abbott s recall list. 17. During the period between April 2010 and about September 22, 2010 Kathleen Brandner s infant chhild M.B. suffered gastro-intestinal problems that required numerous inquiries of the infant s physician, including telephone consultations and visits to the doctor. 18. Upon information and belief, Defendants first discovered that the Similac was tainted with beetle parts and beetle larvae approximately one week before finally issuing a recall notice on September 22, 2010, thus, Defendants knowingly allowed the tainted product to remain on the market, and allowing Plaintiff and members of the class to continue to feed said product to their infant children causing Plaintiffs and the Class further harm. 19. Because Defendants waited a week to issue the recall after learning that the product was tainted, Defendants continued to sell the product and knowingly collected sales revenues from said sales to the Plaintiff and members of the Class even though they knew that the product was defective. 20. Plaintiffs bring this action pursuant to Rule 23(a), (b)(2) and (b)(3) of the Federal Rules of Civil Procedure, on their own behalf and on behalf of a class defined as follows: 6
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 7 of 17 All persons in Louisiana who purchased Similac products bearing the recall lot numbers as stated on Exhibit A attached hereto, during the Similac Recall Purchase Period. The Similac Recall Purchase Period means the period of time commencing on or about September 22, 2010. Excluded from Class are any directors, officers or employees of Defendants, members of their immediate families, and any director, officer or employee of any entity in which Defendants have a controlling interest, and legal representatives, heirs, successors, or assigns of any such persons. 21. This action is properly maintained as a class action for the following reasons, to wit. 22. The Class is so numerous that joinder of all class members is impractical. While the exact number of class members can be determined only by appropriate discovery, Plaintiffs believe that the class includes tens, if not hundreds, of thousands of members. Undersigned counsel has already been contacted by hundreds of individuals who have purchased and who s infant children have consumed the tainted Similac products. The members of the Class are so numerous that it would be impracticable to join all such persons in this action. 23. The claims of the representative parties raise questions of law and fact that are common to all members of the class within the meaning of Rule 23(a)(2) and (b)(3). These predominate and common questions of law and fact include, but are not necessarily limited to, the following: a. Whether Defendants sold Similac infant formula to Plaintiffs and the Class that was contaminated with beetle parts and beetle larvae; b. Whether Similac infant formula contaminated with beetle parts and beetle larvae can cause injury to infants who consume it; 7
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 8 of 17 c. Whether Similac infant formula contaminated with beetle parts and beetle larvae sold by Defendants to Plaintiffs and the Class caused damage and injury to the Plaintiffs and the Class; d. Whether Defendants had a duty to properly formulate, design, manufacture, promote, market, advertise, package, label, distribute and/or sell the the Similac infant formula sold to the public; e. Whether Defendants breached their duty to Plaintiffs and the Class by failing to properly formulate, design, manufacture, promote, market, advertise, package, label, distribute and/or sell the the Similac infant formula sold to the public; f. Whether Defendants had a duty to remove the beetle parts and beetle larvae from the Similac infant formula they sold to the public; g. Whether Defendants breached their duty to Plaintiffs and the Class by failing to remove the beetle parts and beetle larvae from the Similac infant formula they sold to the public; h. Whether Defendants had a duty to warn Plaintiffs that their Similac infant formula contained dangerous contaminants including beetle parts and beetle larvae; i. Whether Defendants breached their duty to the Plaintiffs and the Class by failing to warn that their Similac infant formula contained dangerous contaminants including beetle parts and beetle larvae; j. Whether Defendants failed to perform an adequate inspection and/or test of their Similac infant formula prior to distributing it to the public; k. Whether Defendants failed to institute or follow policies and procedures concerning the premature discharge of untested or improperly tested Similac infant formula; l. Whether Defendants Similac infant formula possessed redhibitory defects; 8
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 9 of 17 m. Whether Defendants Similac infant formula contained contaminants including beetle parts and beetle larvae at the time Defendants delivered and sold the Similac infant formula to Plaintiffs and the Class; n. Whether Defendant warned Plaintiffs and the Class prior to their purchase that the Similac infant formula contained a redhibitory defect; o. Whether Defendants sale of defective Similac infant formula that was tainted with contaminants including beetle parts and beetle larvae violated the Louisiana Products Liability Act; p. Whether Defendants Similac infant formula was unreasonably dangerous as defined by the Louisiana Products Liability Act; q. Whether Defendants Similac infant formula was, as defined by the Louisiana Products Liability Act, unreasonably dangerous in construction or composition; r. Whether Defendants Similac infant formula was, as defined by the Louisiana Products Liability, unreasonably dangerous because Defendants failed to provide an adequate warning that the Similac infant formula was defective because it contained contaminants including beetle parts and beetle larvae; s. Whether Defendants have been unjustly enriched at the expense of Plaintiffs and the Class; t. Whether Plaintiffs and the Class have sustained damages as a result of Defendants unlawful actions; and u. The extent of injuries suffered by Plaintiffs and the Class. 24. As required by Rule 23(a)(3), Plaintiffs claims are typical of the claims of other members of the class, and Plaintiffs have no interest that is adverse or antagonistic to the interest 9
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 10 of 17 of the class. Plaintiffs claims are typical of the claims of the members of the class because all such claims arise from a series of identical circumstances and business practices involving Defendants sale of contaminated Similac infant formula. 25. As required by Rule 23(a)(4), Plaintiffs and their counsel will fairly and adequately protect and represent the interests of each member of the class. Plaintiffs are committed to the vigorous prosecution of this action and have retained competent counsel experienced in prosecuting and defending class actions. 26. This action is properly maintained as a class action pursuant to Rule 23(b)(3), int hat questions of law and fact common to the claims of the Plaintiffs and members of the class predominate over questions of law or fact affecting only individual members of the class, such that a class action is superior to other available methods for the fair and efficient adjudication of this controversy. The issues relating to the claims of the Plaintiffs do not vary from the issues relating to the claims of the other members of the class, such that a class action provides a far more efficient vehicle to resolve those claims than through a myriad of separate lawsuits. All of these issues arise from Defendants sale of Similac infant formula contaminated with beetle parts and beetle larvae to Plaintiffs and the Class. These are predominate questions of law and fact that are common to all members of the class, including but not limited to those set forth above. 27. This action is also maintainable under Rule 23(b)(2) because Defendants have acted on grounds generally applicable to all the members of the class, making final injunctive relief or declaratory relief concerning the class as a whole appropriate. Plaintiffs seek injunctive relief 10
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 11 of 17 prohibiting Defendants from selling contaminated Similac infant formula in the future, and requiring the Defendants to put in place sufficient precautions such that its Similac infant formula is not contaminated in the future. COUNT I (Redhibition) 28. Plaintiffs re-allege the allegations set forth above in paragraphs 1 through 27 as if fully set forth herein. 29. Under Louisiana law, specifically by operation of La. Civ. Code 2520, sellers provide a warranty to buyers to protect against hidden or redhibitory defects in all products or things sold. 30. Defendants contaminated Similac infant formula contained a redhibitory defect pursuant to La. Civ. Code 2520 because the inclusion of beetle parts and beetle larvae in the Similac infant formula rendered the product useless, or its use so inconvenient that it must be presumed that Plaintiffs and the Class would not have bought the Similac infant formula had they known of the defect. This redhibitory defect was present in the Similac infant formula at the time Defendants delivered and sold the Similac infant formula to Plaintiffs and the Class. 31. Defendant did not warn Plaintiffs and the Class prior to their purchase that the Similac infant formula contained a redhibitory defect. 32. As a direct and proximate result of the use of Defendants contaminated Similac 11
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 12 of 17 infant formula, the Class has suffered economic damages, including, but not limited to, damage and lost purchase price of the product. 33. Pursuant to La. Civ. Code 2531 and 2545, Defendants are liable to Plaintiffs and the Class for repair and remedy, return of the sale price with interest from the time it was paid, reimbursement for the reasonable expenses occasioned by the sale and its consequences, and for any further loss occasioned by the purchase of the Similac infant formula and its consequences, as well as damages and attorneys fees. WHEREFORE, Plaintiffs and the Class demand, pursuant to La. Civ. Code 2520 et seq., compensatory and punitive damages against Defendants for Redhibition, including but not limited to, monetary damages, rescission, return of the sale price, interest, reimbursement for the reasonable expenses occasioned by the sale and its consequences, reasonable expenses and attorneys fees, any other relief available under Louisiana Civil Code for Redhibition, and other relief this Court deems just and proper. COUNT II (Louisiana Products Liability Act) 34. Plaintiffs re-allege the allegations set forth above in paragraphs 1 through 27 as if fully set forth herein. 35. Defendants are liable to Plaintiffs under Louisiana law, specifically the Louisiana 12
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 13 of 17 Products Liability Act, LSA R.S. 9:2800.51, et seq. for damages caused by their defective product, because the product is unreasonably dangerous in construction or composition, and/or unreasonably dangerous because Defendants failed to provide an adequate warning. 36. The Similac infant formula concerned in this litigation was unreasonably dangerous in construction, composition and design under LSA R.S. 9:2800.55, because at the time the product left the manufacturer s control the product deviated in a material way from the manufacturer s specifications and/or performance standards in that the Similac infant formula contained beetle parts and beetle larvae that could cause injury to consumers of the product. 37. Defendants Similac infant formula was unreasonably dangerous because of inadequate warning under LSA R.S. 9:2800.57 because at the time the product left the Defendants control the product possessed a characteristic (beetle parts and beetle larvae ) that could, and did cause damage, and the Defendants failed to use reasonable care to provide an adequate warning of such characteristic and its dangers to the users of the Similac infant formula. 38. The danger of using said Similac infant formula is beyond the danger which would be contemplated by ordinary users of the product. 39. Prior to using the product, the users of Defendants product did not know, nor should they be reasonably expected to know of the beetle parts and beetle larvae content of the product and that such characteristic might cause damage. 40. 13
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 14 of 17 Even if Defendants did not know of the beetle parts and beetle larvae content of the Similac infant formula until after the product left its control, which is not conceded, the Defendants remains liable for failing to use reasonable care to provide an adequate warning of such characteristic and its danger to the users of the product. WHEREFORE, Plaintiffs and the Class demand compensatory and punitive damages against Defendants for violation of the Louisiana Products Liability Act and such other relief this Court deems just and proper. COUNT III (Actio de in Rem Verso) 41. Plaintiffs re-allege the allegations set forth above in paragraphs 1 through 27 as if fully set forth herein, and plead in addition to the hereinabove stated counts, or in the alternative thereto, and plead entitlement to the equitable remedy of actio de in rem verso as a result of the defendants enrichment without cause, to wit: 42. As a result of the unlawful acts and practices of Defendants described above, Defendants have been enriched without cause by the monies collected from Plaintiffs and the Class because Defendants obtained a profit from Plaintiffs in exchange for Similac infant formula, which was contaminated with beetle parts and beetle larvae. 43. As a result of the unlawful acts and practices of Defendants described above, Plaintiffs and the Class have been impoverished by purchasing from and paying monies to the Defendants in exchange for the contaminated Similac infant formula. 14
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 15 of 17 44. There is a connection between the Plaintiffs and the Class impoverishment and Defendants enrichment arising from Defendants sale to the Plaintiffs and the Class of the contaminated Similac infant formula. 45. Defendants voluntarily accepted the enrichment that was conferred by Plaintiffs and the Class. 46. There is no justification for Defendants enrichment and Plaintiffs and the Class impoverishment because such enrichment and impoverishment was procured through unlawful and/or deceptive means of Defendants. 47. Plaintiffs and the Class are entitled to the equitable remedy under the theory of actio de in rem verso in the amount of Defendants enrichment or the Plaintiffs and the Class impoverishment. WHEREFORE, Plaintiffs and the Class demand compensation in the form of the equitable remedy of actio de in rem verso and any and all such other relief this Court deems just and proper, premises considered. ALL COUNT RELIEF WHEREFORE, Plaintiffs, on behalf of themselves and the Class, respectfully request that this Court grant the following relief: (a) an order certifying this action as a class action as set forth herein and designating Plaintiffs as the Class Representatives of the Class, as described above; 15
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 16 of 17 (b) an order awarding Plaintiffs and the Class damages and/or restitution and appropriate remedial relief; c) an order awarding Plaintiffs and the Class attorneys' fees, costs and expenses incurred in this action, including reasonable costs of experts retained by counsel; (d) a preliminary and permanent order providing for injunctive relief to enjoin Defendants from future distribution and sale Similac infant formula contaminated with beetle parts and beetle larvae and other contaminants; and (e) such other relief this Court deems just and proper. DEMAND FOR JURY TRIAL Plaintiffs demand a trial by jury on all issues so triable by right. Respectfully Submitted, AND s/ David S. Scalia DAVID S. SCALIA (LSBA #21369) SCALIA LAW FIRM 855 Baronne Street New Orleans, Louisiana 70113 Telephone: (504) 301-1867 Facsimile: (504) 561-6775 Email: dscalia@scalialaw.net MICHAEL S. BRANDNER, JR (LSBA #27973) BRANDNER LAW FIRM, LLC 3324 N. Causeway Blvd. Metairie, Louisiana 70002 Telephone: (504) 552-5000 Facsimile: (504) 888-5456 Email: Michael@BrandnerLawFirm.com 16
Case 2:10-cv-03242-SSV-DEK Document 27 Filed 12/07/10 Page 17 of 17 AND STEPHEN S. KRELLER (LSBA #28440) THE KRELLER LAW FIRM 4224 Canal Street New Orleans, Louisiana 70119 Telephone: (504) 484-3488 Facsimile: (888) 294-6091 Email: ssk@krellerlaw.com CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been served upon all counsel th of record through the Court s CM/ECF electronic filing system, on this 6 Day of December, 2010. s/ David S. Scalia David S. Scalia 17