Where have we gone so wrong, America? Our pioneer forefathers are rolling in their graves. Whereas they endured disease, famine, and early death, we spit in their faces, enjoying our iPhones, antibiotics, and frivolous lawsuits. Some measure of order was restored in O’Neil v. Abbott Laboratories, Inc., No. 11-11, 2011 WL 902427 (E.D. La. March 11, 2011), when the court dismissed a complaint alleging infant injury from beetle parts allegedly present in Similac, which you may remember from here. Put simply, there may have been some ground up warehouse beetle in 0.2% in a particular lot of infant formula. No big deal. Even the FDA says that there is no immediate health risk just a chance of GI irritation.
The court saw this putative class action for what it was, and used Iqbal to dismiss the action. Noting that infants often suffer diarrhea and diaper rash for “non-entomological reasons,” the court subtly chastised the plaintiffs for bringing a negligence-styled products liability action, when negligence is not available in the Louisiana Products Liability Act against manufacturers. Nevertheless, the court afforded the plaintiffs a chance to amend, and even spelled out the four elements that a plaintiff’s complaint must satisfy on its face.