Cresap v. Abbott Labs. (In re Abbott Labs. Preterm Infant Nutrition Prods. Liab. Litig.)
| Docket Number | 22 C 1951,22 C 71,MDL 3026 |
| Decision Date | 29 June 2023 |
| Parties | IN RE ABBOTT LABORATORIES, ET AL. PRETERM INFANT NUTRITION PRODUCTS LIABILITY LITIGATION v. ABBOTT LABORATORIES, ET AL., Defendants. This Document Relates to NICOLE CRESAP and MICHAEL HAYES, individually and as Estate administrators for their deceased minor child KENNEDY HAYES, Plaintiffs, |
| Court | U.S. District Court — Northern District of Illinois |
In dozens of cases, parents of premature infants have alleged that infant formula manufactured by Defendant Manufacturers-Abbott Laboratories and Abbott Laboratories Inc. (collectively, “Abbott”) and Mead Johnson & Company, LLC and Mead Johnson Nutrition Company (collectively, “Mead Johnson”)-caused premature infants to develop necrotizing enterocolitis (“NEC”). The Judicial Panel on Multidistrict Litigation has consolidated a number of these cases for pretrial proceedings before this court, including this case filed by New Jersey Plaintiffs. Defendants have motion to dismiss Plaintiffs' claims arising under Illinois law because, Defendants argue, New Jersey law applies. For the reasons discussed below, Defendants' motion to dismiss Counts 1 through 6 of Plaintiffs' Amended Complaint [13] is granted. Defendants' earlier motion to dismiss [10] is terminated as moot.
Plaintiffs Nicole Cresap and Michael Hayes are among many parents of premature infants who allege that their baby developed NEC from infant formula manufactured by Abbott. Plaintiffs Cresap and Hayes are the parents of Kennedy Jade Elizabeth Hayes, who was born at Morristown Medical Center in Morristown, New Jersey on December 30, 2021. Kennedy was born extremely prematurely, at 24 weeks and 6 days' gestation, and she weighed just 1 pound and 9 ounces at birth. (Id. ¶ 165.) After her birth, Kennedy was placed in Morristown's neonatal intensive care unit, where she was fed breast milk and specialized preterm nutrition products. (Id. ¶¶ 170, 171.) After a few weeks of being fed Abbott's products, on March 14, 2022, Kennedy was diagnosed with NEC. (Id. ¶ 172.) Surgery to save her was unsuccessful, and Kennedy died on March 14, 2022. (Id.)
On April 15, 2022, Plaintiffs, who are residents of New Jersey, filed a six-count complaint against Abbott, whose principal place of business is in Illinois,[1]in the United States District Court for the Northern District of Illinois, invoking diversity jurisdiction. (Id. ¶¶ 1-7.) On January 31, 2023, Abbott moved to dismiss Plaintiffs' claims for unfair trade practices and negligent infliction of emotional distress (Counts 3 and 6 of the complaint) [10], arguing that, under New Jersey law, all claims for injury caused by a product must be asserted under the New Jersey Product Liability Act (NJPLA), N.J.S.A. § 2A:58C-1 et seq. On February 28, 2023, Plaintiffs filed an Amended Complaint [12], omitting the challenged claims and adding six claims under Illinois law: Strict Products Liability - Defective Design (Count 1); Negligent Products Liability - Defective Design (Count 2); Strict Products Liability - Failure to Warn (Count 3); Products Liability - Negligent Failure to Warn (Count 4); Wrongful Death (Count 5); and Survival (Count 6). (Am. Compl. ¶¶ 194-269.) Plaintiffs additionally bring three unchallenged New Jersey claims: Products Liability - Defective Design (Count 7); Products Liability - Failure to Warn (Count 8); Wrongful Death under the New Jersey Wrongful Death Act (Count 9); and Survival under the New Jersey Survival Act (Count 10). (Id. ¶¶ 262-322.) Abbott now moves to dismiss Counts 1 through 6 [13], arguing that New Jersey law alone applies to Plaintiffs' substantive claims, so the claims arising under Illinois common law that conflict with New Jersey's unified, statutorily defined theory of recover under the NJPLA must be dismissed.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Gunn v Cont'l Cas. Co., 968 F.3d 802, 806 (7th Cir. 2020). Abbott argues that Plaintiff's First Amended Complaint fails to state a claim to the extent it relies on Illinois law because New Jersey law applies and Illinois and New Jersey law conflict in a manner that would affect the outcome of this case. (Defs.' Mot. [13] at 2 ().)
Because Plaintiffs filed this diversity suit in Illinois, Illinois choice-of-law rules apply. See Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496 (1941); Looper v. Cook Inc., 20 F.4th 387, 390 (7th Cir. 2021). In accordance with Illinois law, to resolve Abbott's motion, the court undertakes a three-part analysis, assessing (1) whether a conflict between Illinois and New Jersey law would affect issue-specific outcomes; (2) whether Illinois choice-of-law rules instruct that a presumptive choice applies in this suit; and (3) whether, under Sections 6 and 145 the Restatement (Second) of Conflict of Laws-which the Illinois choice-of-law rules adopt-the presumptive choice should not apply because a different state has a more significant relationship to this case. See Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 155, 879 N.E.2d 893, 898 (2007).
To decide whether Plaintiff's invocation of Illinois law is fatal to her claim, the court must discern first whether “there is a conflict between Illinois law and the law of another state such that a difference in law will make a difference in the outcome.” Board of Forensic Document Examiners, Inc. v. Am. Bar Assoc., 922 F.3d 827, 831 (7th Cir. 2019) (quoting West Side Salvage, Inc. v. RSUI Indem. Co., 878 F.3d 219, 223 (7th Cir. 2017)). As “the party seeking a choice of law determination,” Abbott has the burden of establishing “the existence of an outcome-determinative conflict.” Id.
Abbott identifies several points of tension between Illinois and New Jersey law, and Plaintiffs agree that outcome-determinative conflicts exist. First, the NJPLA creates “‘one unified, statutorily defined theory of recovery for harm caused by a product.'” In re Lead Paint Litig., 191 N.J. 405, 436, 924 A.2d 484, 503 (N.J. 2007) (quoting William A. Dreier et al., New Jersey Products Liability & Toxic Torts Law § 1:2-1 (2007)). Federal and state courts in New Jersey thus “consistently dismiss[] product liability-related claims based on common law theories when at the heart of those theories is the potential ‘harm caused by a product.'” Hindermyer v. B. Braun Med. Inc., 419 F.Supp.3d 809, 818-19 (D.N.J. 2019). Illinois has no analogous statute. New Jersey's legislative choice thus creates a “real conflict” with Illinois products liability law. Knipe v. SmithKline Beecham, 583 F.Supp.2d 602, 614 (E.D. Pa. 2008) (). Plaintiffs agree with Abbott that, as a result of New Jersey's abrogation of common-law tort remedies for products claims, there is an outcome-determinative conflict between New Jersey and Illinois law with respect to liability.
Second, the two jurisdictions' joint-and-several liability doctrines differ. Compare 735 ILCS 5/2-1117 () with N.J.S.A. § 2A:15-5.3 (defendant 60% or more at fault jointly and severally liable for damages, defendant less than 60% at fault liable for percentage of damages attributed to fault). And their wrongful death damages regime differs as well. Compare 740 ILCS 180/2 () with N.J.S.A. § 2A:31-5 ().
Third and finally, Illinois and New Jersey apply different standards to punitive damages awards. Illinois permits punitive damages upon a showing of gross negligence, and it does not impose a statutory limit. Townsend, 227 Ill.2d at 156, 879 N.E.2d at 899. On the other hand, New Jersey law permits awards of punitive damages only for conduct more egregious than gross negligence, requires proof by clear and convincing evidence, and caps awards at the greater of five times the compensatory damages award or $350,000. N.J. Rev. Stat. § 2A:15-5.14(b); N.J. Rev. Stat. § 2A:15-5-12. Additionally, New Jersey law, unlike that of Illinois, prohibits recovery for survivors' mental suffering caused by a wrongful death. Compare 740 Ill. Comp. Stat. 180/2 with Dutton v. Rando, 458 N.J.Super. 213, 227 n.3, 204 A.3d 284, 292 n.3 (N.J. App. Ct. 2019). The parties agree that these differences are outcome-determinative with respect to damages.
Because Illinois and New Jersey law conflict with respect to liability and damages, the court undertakes a choice-of-law analysis. Illinois' choice-of-law rules adopt the principle of “dépeçage”-meaning, “cutting into pieces”-according to which the court divides the case into individual issues and applies a separate choice-of-law analysis to each. Townsend, 227 Ill.2d at 161, 879 N.E.2d at 901; Gunn, 968 F.3d at 809 n.4. Because Defendants move to dismiss Plaintiffs' Illinois-based claims only, if the court determines that Illinois law does not apply to the issue of liability, it will not matter which law applies to damages that stem only from those claims.[2]
Turning then, to the issue of liability: Under Illinois' choice-of-law rules, when a conflict of law exists “‘[i]n an action for a personal injury, the local law of the state where the injury...
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