A Louisiana attorney has filed a putative class action against the company that makes Similac® infant formula and a retailer, alleging that they deceptively promoted the product as safe for infant consumption while it was believed to contain “insect pieces and larvae,” which “may cause diarrhea, gastrointestinal discomfort, and other serious health problems.” Brandner v. Abbott Labs., Inc., No. 10-03242 (U.S. Dist. Ct., E.D. La., filed September 23, 2010). Plaintiff Kathleen Brandner brings the action on behalf of her minor son and a nationwide class of consumers, alleging negligence, strict liability, intentional and negligent misrepresentation, breach of express and implied warranties, and unjust enrichment. She seeks class certification, declaratory relief, injunctive relief, refunds, damages, punitive damages, special damages, attorney’s fees, and costs.  

According to the complaint, the damages exceed $5 million and should include the cost of medical monitoring. While the plaintiff does not indicate whether her son became ill after consuming the formula, she asserts, in addition to monetary injury, “other forms of injury and/or damage and/or mental anguish and/or physical pain and suffering.” The defendant manufacturer issued a product recall the day before the lawsuit was filed, and the Food and Drug Administration (FDA) has posted a list of affected products. According to FDA, no immediate risk was posed by the potentially contaminated infant formula, although “there is a possibility that infants who consume formula containing the beetles or their larvae could experience symptoms of gastrointestinal discomfort and refusal to eat as a result of small insect parts irritating the GI tract.” See FDA Press Release, September 22, 2010.