Hunte v. Abbott Labs., Inc.

Decision Date26 October 2021
Docket Number3:20-cv-1626 (SRU)
Parties Anika HUNTE, as administratrix of the estate of Aries Peterson, et al., Plaintiffs, v. ABBOTT LABORATORIES, INC., Defendant.
CourtU.S. District Court — District of Connecticut

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, Gordon & Rees LLP, 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.

CERTIFICATION ORDER

Stefan R. Underhill, United States District Judge

This case is about the death of a baby—Aries Peterson—who was born prematurely and then spent his entire three-month life in the Neonatal Intensive Care Unit ("NICU") at Yale New Haven Hospital ("YNHH"). Anika Hunte—Ariesmother and the administratrix of his estate—sues Abbott Laboratories, Inc. ("Abbott"), which manufactures the three premature infant formulas that medical professionals fed Aries in this case. Hunte alleges that those formulas, which contain cow's milk, caused Aries to develop necrotizing enterocolitis

("NEC")—an intestinal disease that affects primarily premature infants—and to die. Specifically, Hunte alleges that Abbott violated the Connecticut Product Liability Act (the "CPLA") on several different theories: (1) failure to warn; (2) strict liability for design defect; (3) negligence; (4) negligent misrepresentation; and (5) breach of express warranty. Hunte also alleges that Abbott is liable for intentional misrepresentation and for a violation of the Connecticut Unfair Trade Practices Act. Finally, both Hunte and Aries’ father assert claims against Abbott for a loss of filial consortium.

Abbott made a motion to dismiss Hunte's complaint, which I recently granted in part and denied in part. See Ruling, Doc. No. 62. As relevant here, I denied Abbott's motion to dismiss without prejudice insofar as it regarded (1) Hunte's failure to warn claim because that claim depends on a threshold issue regarding whether the learned intermediary doctrine (the "LID") applies, and (2) Aries’ parents’ loss of filial consortium claims because it is unsettled under Connecticut law whether such claims are cognizable. In my ruling, I indicated that I would soon enter an order certifying relevant and partially controlling questions of law to the Connecticut Supreme Court.

I. Legal Standard

Under Connecticut law, "[t]he Supreme Court may answer a question of law certified to it by a court of the United States ... if the answer may be determinative of an issue in pending litigation in the certifying court and if there is no controlling appellate decision, constitutional provision or statute of this state." Conn. Gen. Stat. § 51-199b(d) ; see also Munn v. Hotchkiss School , 795 F.3d 324, 334 (2d Cir. 2015). When deciding whether to certify a question to the Connecticut Supreme Court, a court should consider, among other factors: "(1) the absence of authoritative state court decisions; (2) the importance of the issue to the state; and (3) the capacity of certification to resolve the litigation." Bifolck v. Philip Morris, Inc. , 2014 WL 585325, at *2 (D. Conn. Feb. 14, 2014) (quoting O'Mara v. Town of Wappinger , 485 F.3d 693, 698 (2d Cir. 2007) ).

"Certification is especially important in categories of cases where, unless there is certification, the state courts are substantially deprived of the opportunity to define state law." Munn , 795 F.3d at 334 (quoting Gutierrez v. Smith , 702 F.3d 103, 116 (2d Cir. 2012) ). "[S]tate courts should be accorded the first opportunity to decide significant issues of state law through the certification process," and, "especially where the issues implicate the weighing of policy concerns, principles of comity and federalism strongly support certification." Id. (quoting Parrot v. Guardian Life Ins. Co. of Am. , 338 F.3d 140, 144 (2d Cir. 2003) ) (cleaned up). When "claims implicate important values in the evolution of a state's tort law," certification may be especially appropriate. Fraser v. United States , 30 F.3d 18, 20 (2d Cir. 1994).

II. Background1

On January 30, 2018, Aries was born at YNHH. Aries weighed 620 grams and had been born at 27 weeks gestation (just over six months). Aries spent his entire life in the NICU at YNHH. Aries died on April 18, 2018. The food that Aries ate during his life is the subject of this lawsuit.

Aries was fed both Hunte's breastmilk2 and three of Abbott's products: Similac NeoSure ("NeoSure"), Similac Human Milk Fortifier ("Similac HMF"), and Similac Special Care. All three formulas are "exempt" infant formulas, which means that they are intended to feed premature infants. Am. Compl., Doc. No. 44, at ¶ 55.3 All three formulas contain cow's milk, which Hunte alleges causes NEC. Hunte alleges that Abbott's three "cow's milk-based formula products did cause [ ] Aries to develop NEC, which triggered severe intestinal disease and death." Id. at ¶ 101. Hunte notes that exempt infant formulas need not contain cow's milk: At least one other exempt infant formula (made by Prolacta Bioscience) contains human donor milk. Id. at ¶ 104.

On February 16, 2018, Aries was fed a combination of breastmilk and NeoSure. Id. at ¶ 70. Later that evening, Aries had bloody stool. Id. at ¶ 71. From February 22 through 26, Aries was fed Similac HMF. Id. at ¶ 85. On February 25—and for some indeterminate time thereafter—Aries was fed Similac Special Care. Id. at ¶ 91.

Hunte reproduces the warning labels for all three formulas. Id. at ¶¶ 81 (NeoSure), 89 (Similac HMF), and 95 (Similac Special Care). None mentions NEC or the possibility that using the product could increase the risk of a baby's developing NEC. Hunte does not allege that she saw—or even tried to see—any of those warning labels. NeoSure and Similac Special Care can be bought at retail stores. Id. at ¶¶ 78, 94. Hunte never alleges that she ever attempted to buy either.

Most of Hunte's complaint focuses on topics not directly at issue in this case. For instance, Hunte alleges that a growing corpus of scientific research over the past several decades has established that infant formulas containing cow's milk help cause NEC and death in premature infants. Id. at ¶¶ 8–25 (citing scientific studies, governmental reports, and policy statements between 1990 and 2017). In fact, according to Hunte, that harm is avoidable: Infant formulas need not contain cow's milk and, for instance, might instead be "derived from human milk." Id. at ¶ 10. Hunte spends many paragraphs recounting Abbott's general marketing practices and claiming that those practices were deceptive in various ways—generally, by equating Abbott's products with breastmilk, claiming that Abbott's products were the first choice of doctors, and subtly inferring that Abbott's products were necessary for premature infants to grow properly. Id. at ¶¶ 26–66. Hunte alleges that Abbott knew that advertising was false. See id. at ¶ 151 ("Abbott has known that their Similac products are significantly increasing the risk of NEC and/or death in premature infants and are aware that there are alternatives to their cow's milk-based formulas and fortifiers, such as human milk derived products, that would reduce the risk of NEC and/or death, yet they chose to continue to promote, market, and sell their products, causing thousands of premature infants to succumb to NEC and die.").

"All this marketing and promotion," according to Hunte, "is designed to instill confidence in Abbott's product lines, and indeed to plant a subtle seed in a parent's mind that formula is safe and necessary to the growth of a premature infant." Id. at ¶ 75. Hunte alleges that, in general, she "was exposed [to] and persuaded by marketing from Abbott that Similac products were safe and necessary to the growth and nutrition of her premature infant." Id. at ¶ 76. Hunte also alleges that she "was enticed into joining Similac Strong Moms Rewards ," which appears to have been a mailing list for formula coupons. Id. at ¶ 166. Hunte alleges that, through her membership in Similac Strong Moms Rewards , Abbott "gained access to substantial private information" about Hunte and targeted her with ads, such as a January 18 email,4 which Hunte received while she was hospitalized. Id. at ¶ 167–68. Importantly, Hunte does not allege that she ever saw or read that email—only that she received it. See id. at ¶ 168.

Hunte alleges very few facts regarding the three formulas at issue and no facts regarding the connection between the advertising of those three formulas and Hunte. So far as I can tell, Hunte makes no specific allegations regarding Similac HMF or Similac Special Care. With respect to NeoSure, Hunte's allegations are general, vague, and not clearly relevant. For instance, Hunte cites to Similac's website and notes that "Similac promotes Neosure " without mentioning NEC. Id. at ¶¶ 57–58; 73–74. Hunte also performed "Google search[es]" for "feeding preemies formula," "Is formula healthy for premature infants?" and "Is formula safe for premature infants?"; Hunte notes that paid advertisements for NeoSure appeared in response to each search. Id. at ¶¶ 56, 59–60. Those advertisements do not mention NEC.

The following few paragraphs of Hunte's complaint provide a helpful summary of the connection, in Hunte's view, between Abbott's generalized advertising and Aries’ death:

The pervasive exposure by mothers to media, advertising and promotion equating human milk to breastmilk has the generalized impact of: (a) reducing lactation; (b) causing mothers to believe formula is comparable to breastmilk; and (c) reduc[ing] the capacity for informed consent and informed decision-making. Through long-term
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