Lawsuit Questions Similac Recall

San Diego, CAA lawsuit filed in the wake of the Similac recall questions the conduct of Abbott Laboratories, maker of Similac baby formula. The Similac formula recall was announced after beetles and larvae were found in an area of a Similac formula production plant.

The lawsuit, filed by a woman who says she purchased Similac for her son, alleges Abbott breached express and implied warranties. It further alleges that Abbott Laboratories likely knew that the Similac baby formula contained beetles days before the recall was announced.

The plaintiff, Jessica Tosh-Surryhne, seeks class-action status for her lawsuit on behalf of all Similac buyers.

According to the lawsuit, Abbott Laboratories owed a duty to disclose facts that it either knew or should have known about the beetle contamination. The lawsuit alleges unjust enrichment, fraudulent concealment, breach of express warranties, breach of implied warranties, false and misleading advertising, and unfair and deceptive business practices under various state laws. The lawsuit does not seek damages for personal injuries.

Court documents filed by the plaintiff allege that the defendants decided "to market and sell Similac infant formula when Defendants knew, or should have known, that their products were adulterated and harmful to infants."

Questions of fact that will be answered by the lawsuit, according to court documents, include whether Abbott's conduct was illegal, whether they engaged in false and deceptive advertising, whether the plaintiffs are entitled to damages, whether Abbott's practices harmed consumers and whether Abbott was unjustly enriched by its conduct.

A similar lawsuit was filed by an Illinois mother, who alleged that Abbott Laboratories knew about the insects on September 16th but waited a week before announcing the recall. Abbott responded to that lawsuit saying the company acted in the best interests of children and the lawsuit is without merit.

The recall was announced on September 22, 2010, after beetles and larvae were found in an area of a Similac production plant. Only powdered infant formulas were affected by the recall. Although the company said the tainted formula would not harm infants, the FDA acknowledged that some babies might suffer gastrointestinal discomfort and have difficulty feeding. Parents of babies whose symptoms lasted longer than a few days were advised to seek medical attention.