Parents seek to revive claims they overpaid for Abbott formula before recall
Written By : Ruchika Sharma
Medically Reviewed By : Dr. Kamal Kant Kohli
Published On 2024-02-06 08:00 GMT | Update On 2024-03-22 08:55 GMT
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Parents who say they overpaid for Abbott Laboratories baby formula before one of its plants was shuttered for unsanitary conditions urged a federal appeals court on Monday to revive their lawsuit against the company.
Kiley Grombacher of Bradley Grombacher, a lawyer for the parents, told a three-judge panel of the 7th U.S. Circuit Court of Appeals that her clients would not have bought, or would have paid less, for Similac and other Abbott brands if they had known of the safety risks that led to the plant shutdown and a subsequent recall.
U.S. District Judge Matthew Kennelly in Chicago last year dismissed those claims, finding that the parents had not shown that their children were actually harmed. Other lawsuits, alleging that babies were sickened by contaminated formula, remain pending.
The 7th Circuit panel appeared skeptical of the case.
"What specifically is your injury?" Circuit Judge Thomas Kirsch asked Grombacher at the outset of the argument. "They got the product they bought."
"The injury here is that they paid for a product that should never have been on the market," Grombacher said.
Circuit Judge Ilana Rovner also questioned the plaintiffs' argument that they were exposed to a greater risk by buying the formula.
"If there was a one in a billion chance that someone could buy a contaminated product, does every person who ever bought that product have standing to sue?" she asked.
Grombacher responded that, in light of the recall and a subsequent consent decree with federal regulators, all of the formula the parents bought should be considered "adulterated."
John O'Quinn, a lawyer for Abbott, said the court should uphold Kennelly's dismissal, and rejected Grombacher's argument that the formula they bought was unsafe.
"There is no admission in the consent decree that Abbott sold adulterated foods," he said. "It's not in the consent decree. It's not in their complaint."
He said the plaintiffs' argument was equivalent to allowing any past patrons of a restaurant later found to have health code violations to sue, even if they did not get sick.
Kirsch, Rovner and the third member of the panel, Circuit Judge Michael Brennan, were all appointed by Republican presidents. They did not indicate when they would rule.
Abbott closed its Sturgis, Michigan, baby formula plant on Feb. 1, 2022, and recalled batches of its products, triggering a nationwide baby formula shortage.
In May 2022, U.S. Food and Drug Administration Commissioner Robert Califf told Congress that conditions in the plant were "egregiously unsanitary." The plant reopened that July following the company's agreement with the FDA.
Eighty-five lawsuits were still pending before Judge Kennelly as of Feb 1. Those lawsuits allege that contaminated formula cause caused salmonella infection, bacterial meningitis and other health problems.
Abbott has denied the claims.
The case is Economic Loss Plaintiffs v. Abbott Laboratories, 7th U.S. Circuit Court of Appeals, No. 23-2525.
For plaintiffs: Kiley Grombacher of Bradley Grombacher
For Abbott: John O'Quinn of Kirkland & Ellis
Read also: Abbott India profit rises in Q3 on strong demand
Original news source: https://www.reuters.com/legal/litigation/parents-seek-revive-claims-they-overpaid-abbott-formula-before-recall-2024-02-05/#:~:text=Feb 5 (Reuters) - Parents,their lawsuit against the company.
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