Security National Bank Of Sioux City v. Abbott Laboratories.

2014 WL 3704277 (N.D. Iowa, July 28, 2007)

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Nature of the Case

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Facts

J.M.K. (P) was born and upon discharge from the hospital, 'P's mother was given an unsolicited gift bag' containing Similac powder infant formula and 'liquid infant formula also manufactured by D.' The gift bag was provided due to an 'agreement wherein D supplied gift bags to the hospital containing Similac PIF in exchange for consideration from the hospital.' P.'s mother fed only the liquid infant formula. When the liquid infant formula ran out, P's mother began feed the Similac PIF. The mother boiled the water, utensils, bottles, and all bottle parts she used with the PIF' and 'prepared the PIF in her kitchen' in compliance with D's product label recommendations. After being fed the Similac PIF, P began showing signs of a possible infection, and the mother took her to the emergency department at St. Luke's Regional Medical Center of Sioux City. Two days later, P was flown to the Children's Hospital and Medical Center in Omaha, Nebraska, where she 'was admitted and diagnosed with neonatal Enterobacter sakazakii meningitis,' resulting 'in severe brain damage. P contends D's Similac PIF, was not and is not 'reasonably safe for . . . neonates, whether or not the neonate is full term and whether or not the neonate is healthy. 'The only known cause of neonatal Enterobacter sakazakii meningitis is food-borne ingestion,' and 'PIF is the only known source of neonatal Enterobacter sakazakii meningitis. 'The Center for Disease Control has associated PIF with every documented case of neonatal Enterobacter sakazakii except one.' The Food and Drug Administration has 'tested samples of PIF taken at PIF manufacturing facilities and found that 23 percent contained Enterobacter sakazakii.' P contends D 'has testing procedures in place (although inadequate) . . . and discards batches of PIF found to contain the bacteria.' This alleged practice demonstrates that the 'presence of Enterobacter sakazakii is not part of the intended design of D's PIF.' P asserts seven causes of action: (1) manufacturing defects (2) design defects, (3) failure to warn, (4) breach of express warranties, (5) breach of implied warranty of fitness for a particular purpose, (6) breach of implied warranty of merchantability, and (7) fraud. D motioned to dismiss under 12(b)(6) and 9(b).