Hunte v. Abbott Labs., Inc.

• Citation: 556 F.Supp.3d 70
• Decision Date: 19 August 2021
• Docket Number: 3:20-cv-1626 (SRU)
• Parties: Anika HUNTE, as administratrix of the estate of Aries Peterson, et al., Plaintiffs, v. ABBOTT LABORATORIES, INC., Defendant.
• Court: U.S. District Court — District of Connecticut

556 F.Supp.3d 70

Anika HUNTE, as administratrix of the estate of Aries Peterson, et al., Plaintiffs,

v.ABBOTT LABORATORIES, INC., Defendant.

No. 3:20-cv-1626 (SRU)

United States District Court, D. Connecticut.

Signed August 19, 2021

Jose Rojas, The Rojas Law Firm, Paul Levin, Law Offices of Paul Levin LLC, Hartford, CT, Stephen M. Reck, Scott D. Camassar, Law Firm of Stephen M. Reck, LLC, North Stonington, CT, for Plaintiff Anika Hunte.

Aaron S. Bayer, Wiggin & Dana, Hartford, CT, John J. Robinson, Kelcie Burns Reid, Gordon Rees Scully Mansukhani, Glastonbury, CT, Stephen V. D'Amore, Bryce Cooper, Scott P. Glauberman, Winston & Strawn LLP, Chicago, IL, Chante Westmoreland, Winston & Strawn, Houston, TX, for Defendant.

ORDER

Stefan R. Underhill, United States District Judge

This is a case about infant formulas that contain cow's milk. This is the second case before me in quick succession that has raised similar issues. The first—Ferry v. Mead Johnson & Co., LLC, et al. , No. 3:20-cv-99 (SRU)—was voluntarily dismissed just a few months ago.

The main plaintiff in this case is Anika Hunte ("Hunte"), who is administratrix of the estate of her late son, Aries Peterson ("Aries").¹ Aries was born prematurely and spent his entire three-month life in the Neonatal Intensive Care Unit ("NICU") at Yale New Haven Hospital ("YNHH"). The defendant, Abbott Laboratories, Inc. ("Abbott"), manufactures several infant formulas for premature infants that contain cow's milk. In this case, medical professionals fed Aries three of Abbott's cow's-milk-based infant formulas. Hunte alleges that those formulas caused Aries to develop necrotizing enterocolitis

("NEC"), which is an intestinal disease that affects primarily premature infants, and to die. Hunte further alleges that Abbott knew (or should have known) that its formulas were unreasonably dangerous but, nevertheless, continued selling and distributing them.

Hunte sues Abbott for (1) violating the Connecticut Product Liability Act ("CPLA"), Conn. Gen. Stat. § 52-572m, et seq. , on several theories, (2) intentional misrepresentation under Connecticut common law, (3) violating the Connecticut Unfair Trade Practices Act ("CUTPA"), id. § 42-110a, et seq. , and (4) loss of filial consortium under Connecticut common law (two counts). Abbott has made a motion to dismiss Hunte's complaint nearly in its entirety. For the following reasons, I grant in part and deny in part Abbott's motion to dismiss, as set forth in the following table. I also deny Abbott's motion to strike several allegations in Hunte's amended complaint.

Count	Claim	Action on MTD
1	CPLA – failure to warn (strict liability)	Denied without prejudice (subject to certification)
1	CPLA – design defect (strict liability)	N/A
1	CPLA – negligence ((a) negligent design and (b) negligent post-sale duty to warn)	Denied
1	CPLA – negligent misrepresentation	Granted
1	CPLA – breach of express warranty	Granted
2	Intentional Misrepresentation	Granted
3	CUTPA	Granted
4, 5	Loss of Filial Consortium	Denied without prejudice (subject to certification)

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) (quoting Geisler 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. See 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 also Iqbal , 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 will not do." 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) (citing Cortec 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." See id. (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. See Glob. Network Commc'ns, Inc. v. City of New York , 458 F.3d 150, 156 (2d Cir. 2006) ; see also Chernosky 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.") (citing Fed. 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. See Glob. Network Commc'ns , 458 F.3d at 156 (citing Chambers , 282 F.3d at 153 ). 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. Related Case: Ferry v. Mead Johnson & Co., LLC, et al. , No. 3:20-cv-99 (SRU)

In many ways, this case is "take two" of the Ferry case. In Ferry , the same plaintiffs’ lawyers represented the mother of a premature infant who died in the NICU at YNHH after being fed infant formulas that contained cow's milk, including Similac Special Care, which is one of the three formulas at issue in this case. The same defense lawyers represented Abbott. (Mead Johnson, which was a defendant in Ferry , is not a defendant in this suit.) In Ferry , the plaintiff alleged that Abbott violated the CPLA on the following theories: (1) failure to warn and/or instruct, (2) design defect (strict liability), (3) negligence, (4) negligent and intentional misrepresentation, and (5) breach of express and implied warranties. See Am. Compl., Ferry , 20-cv-99, Doc. No. 50, at ¶ 113.

In January 2021, I granted in part and denied in part Abbott's motion to dismiss in the Ferry case. See Ferry v. Mead Johnson & Co., LLC , 514 F. Supp. 3d 418 (D. Conn. 2021). I recount here the relevant portions of the Ferry ruling.

I deferred ruling on Ferry's CPLA claim based on a failure to warn theory because "[t]he threshold question ... is whether the warnings on the Defendants’ products must have been adequate to warn medical professionals or, rather, consumers (i.e. , parents of premature infants)." Id. at 432. "The answer depend[ed] on whether the learned intermediary doctrine applie[d]." Id. Because the parties disagreed regarding whether the learned intermediary doctrine applied—and thus to whom the defendants’ duty to warn ran—I planned to certify that question to the Connecticut Supreme Court. See id. at 433. Because Ferry voluntarily dismissed his case in April 2021, that issue died on the vine.

With respect to Ferry's CPLA claim based on a design defect (strict liability) theory, I noted that it was a "close question whether federal law preempts Ferry's claim." Id. at 438. Because the issue was one of first impression under the Infant Formula Act—and because I was "left with several questions regarding the relevant regulatory regime"—I denied the defendants’ motion to dismiss. Id. at 438–43.

With respect to Ferry's CPLA claim based on a negligence theory, I noted that Ferry "appear[ed] to assert a CPLA claim based, in part, on a broad theory of negligence relating to numerous disparate topics." Id. at 430 n.4. Based on Ferry's allegations and arguments, I concluded that "it seem[ed] clear that Ferry's ‘negligence’ theory consist[ed] of a negligent failure to warn theory." Id. Thus construed, I deferred...