Ferry v. Mead Johnson & Co.

• Decision Date: 25 January 2021
• Docket Number: No. 3:20-cv-99 (SRU),3:20-cv-99 (SRU)
• Citation: 514 F.Supp.3d 418
• Parties: Kevin FERRY, as Administrator of the Estate of Tylea Hundley, Plaintiff, v. MEAD JOHNSON & CO., LLC, Mead Johnson Nutrition Co., and Abbott Labs., Inc., Defendants.
• Court: U.S. District Court — District of Connecticut

514 F.Supp.3d 418

Kevin FERRY, as Administrator of the Estate of Tylea Hundley, Plaintiff,

v.MEAD JOHNSON & CO., LLC, Mead Johnson Nutrition Co., and Abbott Labs., Inc., Defendants.

No. 3:20-cv-99 (SRU)

United States District Court, D. Connecticut.

Signed January 25, 2021

Stephen M. Reck, Scott D. Camassar, Isabel Virginia Del Vecchio, Law Firm of Stephen M. Reck and Scott D. Camassar, LLC, North Stonington, CT, Jose M. Rojas, The Rojas Law Firm, Hartford, CT, for Plaintiff.

Anthony Anscombe, Cara Lawson, Steptoe & Johnson LLP, Chicago, IL, Jeffrey J. White, Robinson & Cole, LLP, Hartford, CT, Trevor Loomis Bradley, Robinson & Cole LLP, Stamford, Stamford, CT, for DefendantsMead Johnson & Company, LLC, Mead Johnson Nutrition Company.

John J. Robinson, Kelcie Burns Reid, Gordon Rees Scully Mansukhani, Glastonbury, CT, Stephen V. D'Amore, Winston & Strawn LLP, Bryce Cooper, Dan Huy Hoang, Scott P. Glauberman, Winston & Strawn/Chicago, Chicago, IL, Chante Westmoreland, Winston & Strawn, Houston, TX, for DefendantAbbott Laboratories, Inc.

RULING AND ORDER

Stefan R. Underhill, United States District Judge

This case is about the death of a baby—Tylea Hundley—who was born prematurely and died 48 days after her birth from an intestinal disease.Kevin Ferry—the administrator of Tylea's estate—sues the producers of three infant formulas that doctors at Yale New Haven Hospital fed Tylea before she died.Specifically, Ferry alleges that Mead Johnson & Company, LLC and/or Mead Johnson Nutrition Company("Mead Johnson") and Abbott Laboratories, Inc.("Abbott")(collectively, the "Defendants") violated the Connecticut Product Liability Act (the "CPLA") on several different theories: (1) failure to warn and/or instruct; (2) strict liability for design defect; (3) misrepresentation; and (4) breach of warranty.Ferry argues that the Defendants’ infant formulas contained cow milk, which the Defendants knew was unsafe.The Defendants have made motions to dismiss Ferry's complaint.They argue that Ferry's allegations are barred in part by Connecticut state law, preempted in part by federal law, and entirely fail to rise to the level of plausibility.For the following reasons, the Defendants’ motions to dismiss, doc. nos. 51 and 52, are granted in part and denied in part .In addition, in a subsequent order, I will certify relevant and partially controlling questions of law to the Connecticut Supreme Court.The portions of the Defendants’ motions to dismiss that relate to that certification order are denied without prejudice to refiling once the Connecticut Supreme Court answers the certified questions.

I.Standard of Review

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) is designed "merely to assess the legal feasibility of the complaint, not to assay the weight of evidence which might be offered in support thereof."Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities, Inc. , 748 F.2d 774, 779(2d Cir.1984)(quotingGeisler v. Petrocelli , 616 F.2d 636, 639(2d Cir.1980) ).When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true, draw all reasonable inferences in favor of the plaintiffs, and decide whether it is plausible that plaintiffs have a valid claim for relief.Ashcroft v. Iqbal , 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868(2009);Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007);Leeds v. Meltz , 85 F.3d 51, 53(2d Cir.1996).

Under Twombly , "[f]actual allegations must be enough to raise a right to relief above the speculative level" and assert a cause of action with enough heft to show entitlement to relief and "enough facts to state a claim to relief that is plausible on its face."550 U.S. at 555, 570, 127 S.Ct. 1955;see alsoIqbal , 556 U.S. at 679, 129 S.Ct. 1937("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").The plausibility standard set forth in Twombly and Iqbal obligates the plaintiff to "provide the grounds of his entitlement to relief" through more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action."Twombly , 550 U.S. at 555, 127 S.Ct. 1955(cleaned up).Plausibility at the pleading stage is nonetheless distinct from probability, and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is improbable, and ... recovery is very remote and unlikely."Id. at 556, 127 S.Ct. 1955(cleaned up).

In deciding a motion to dismiss pursuant to Rule 12(b)(6), a district court must be mindful not to violate the "conversion rule.""If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion."Fed. R. Civ. P. 12(d).The major harm of considering extrinsic materials on a Rule 12(b)(6) motion is "the lack of notice that the material may be considered."Chambers v. Time Warner, Inc. , 282 F.3d 147, 153(2d Cir.2002)(citingCortec Indus., Inc. v. Sum Holding L.P. , 949 F.2d 42, 48(2d Cir.1991) ).Thus, when the plaintiff"has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint[,] the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated."Seeid.(cleaned up).

In the Second Circuit, a court may consider extrinsic materials on a Rule 12(b)(6) motion without converting it to a Rule 56 motion if the materials are either (1) integral to the complaint, or (2) facts appropriate for judicial notice.SeeGlob. Network Commc'ns, Inc. v. City of New York , 458 F.3d 150, 156(2d Cir.2006);see alsoChernosky v. Amica Mut. Ins. Co. , 2018 WL 529956, at *1 n.1(D. Conn.Jan. 24, 2018)("The Court may consider documents attached to, integral to, or incorporated by reference in the complaint.")(citingFed. R. Civ. P. 10(c);Chambers , 282 F.3d at 153 ).For materials to be "integral" to a complaint, the plaintiff must have relied on those materials in drafting the complaint; it is not enough that the plaintiff had mere notice or possession of them.SeeGlob. Network Commc'ns , 458 F.3d at 156(citingChambers , 282 F.3d at 152–53 ).Courts may take judicial notice of facts "not subject to reasonable dispute" either because they are generally known or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."Fed. R. Evid. 201(b).A court"does not ordinarily look beyond the complaint and attached documents in deciding a motion to dismiss brought" pursuant to Rule 12(b)(6).Halebian v. Berv , 644 F.3d 122, 130(2d Cir.2011).

II.Background

A.Factual Background

Tylea was born at Yale New Haven Hospital ("YNHH") on November 26, 2016.SeeAm. Compl., Doc. No. 50, at ¶ 1.Tylea was born after a 26-week, 6-day pregnancy (normal pregnancies last about 40 weeks) and weighed 355 grams (just over three-quarters of a pound).Seeid.at ¶ 7.On January 11, 2017, Tylea had bloody stool, and subsequent imaging confirmed that she was suffering from necrotizing enterocolitis ("NEC"), which is an intestinal infection.Seeid.at ¶¶ 53–54.On January 12, 2017, after a failed emergency bedside surgery, Tylea died from the effects of NEC.Seeid.at ¶¶ 3, 55–56.Tylea lived a total of 48 days, and she spent her entire life in the neonatal intensive care unit (the "NICU") at YNHH.

Mead Johnson produces (1) Enfamil Human Milk Fortifier ("Enfamil") and (2) EnfaCare Powder ("EnfaCare").Id.at ¶ 5.Abbott produces Similac Special Care ("Similac").Seeid.at ¶ 6.Enfamil, EnfaCare, and Similac all contain cow milk.Seeid.at ¶¶ 39–41;Enfamil Packaging, Ex. A to Am. Compl., Doc.No. 50-1, at 2(Enfamil's packaging repeatedly states that it is "milk-based powder," and its ingredients list includes "milk protein isolate");EnfaCare Packaging, Ex. A to Am. Compl., Doc.No. 50-1, at 3(EnfaCare's ingredients list includes "nonfat milk");Similac Packaging, Ex. C to Am. Compl., Doc.No. 50-3, at 3(Similac Special Care 20's ingredients list includes "Nonfat Milk" and says, in bold, that the product "[c]ontains milk and soy ingredients").

After Tylea was born, she"was provided total parenteral nutrition by vein ... and was transitioned to donor human milk beginning six days after birth."Am. Compl., Doc. No. 50, at ¶ 9.Tylea "did well on human breast milk."Id.at ¶ 10.¹From December 25, 2016 through either January 8 or January 9, 2017, doctors at YNHH fed Tylea Enfamil, apparently always with human breast milk.Seeid.at ¶¶ 11–18.From December 29, 2016 through January 7, 2017(except for January 5 and 6), doctors at YNHH fed Tylea EnfaCare, apparently always with human breast milk.Seeid.at ¶¶ 23–26.From January 5 to January 11, 2017, doctors at YNHH fed Tylea Similac, sometimes with human breast milk and other times alone.Seeid.at ¶¶ 31–34.

According to Ferry, Enfamil's packaging and warning label "contained only the following packaging information guidelines, instructions and warnings":

• WARNING: Your baby's health depends on carefully following the instructions below.Use only as directed by a medical professional.Improper hygiene, preparation, dilution, use or storage may result in severe harm.Although this powder is formulated for premature infants, nutritional powders are not sterile and should not be fed to premature infants or infants who might have immune problems unless directed and supervised by your baby's doctor.

• CAUTION: Regarding use in extremely low-birth-weight infants (ELBW-1 kg or less): Hypercalcemia has been reported in some of these infants on full enteral feeds of human milk supplemented with human milk

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