Case: 1:22-cv-01239 Document #: 1 Filed: 03/08/22 Page 1 of 18 PageID #:1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`
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`BRITTANY JOHNSON, individually and on
`behalf of all others similarly situated,
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`Civil Action No. _________________
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMAND
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`
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`Plaintiff,
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`vs.
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`ABBOTT LABORATORIES D/B/A
`ABBOTT NUTRITION,
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`
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`
`
`
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`Defendant.
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`COMES NOW, BRITTANY JOHNSON (“Plaintiff”), individually and on behalf of the
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`Class, who states and alleges as follows:
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`INTRODUCTION
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`1.
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`Plaintiff brings this action on behalf of herself and on behalf of a Class of similarly
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`situated consumers against Defendant Abbott Laboratories d/b/a Abbott Nutrition (“Defendant” or
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`“Abbott”) who purchased certain powdered infant formulas manufactured and sold by Abbott.
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`2.
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`Abbott manufactures and sells infant formula products. These products include the
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`brands Similac, Alimentum, and EleCare which parents trust and use to feed and nourish their
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`children.
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`3.
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`On February 17, 2022, the U.S. Food and Drug Administration (“FDA”) in
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`conjunction with the U.S. Centers for Disease Control and Prevention (“CDC”) alerted consumers
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`to avoid purchasing or using certain powdered infant formula products produced at Abbott’s
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`Sturgis, Michigan facility.
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`4.
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`Specifically, the FDA announced that it is investigating consumer complaints of
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`Cronobacter sakazakii and Salmonella Newport infections connected to powdered infant formula
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`products produced by Abbott.
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`5.
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`On February 18, 2020, Abbott announced a recall of its powdered infant formula
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`products, including the brands Similac, Alimentum, and EleCare because they suffer from a defect
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`which could result in serious injury, permanent impairment, and even be life-threatening.
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`6.
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`These products may contain Cronobacter sakazakii and Salmonella Newport
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`bacteria, which when consumed, can result in serious adverse health effects, including sepsis,
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`meningitis, poor feeding, irritability, fever, jaundice, grunting breaths, abnormal movements, and
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`bowel damage.
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`7.
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`Similac, Alimentum, and EleCare products where the first two digits of the product
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`are 22 through 37 and the code on the container contains “K8,” “SH,” or “Z2,” and the use-by date
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`is April 1, 2022 or later are all part of the recall (“Recalled Products”).
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`8.
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`Despite the recall, Abbott is not crediting or replacing affected Recalled Products,
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`which many parents and caretakers rely on daily to feed and care for their children. Since Abbott
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`is now telling consumers it is not safe for their infants to consume these products, but many
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`consumers rely on them to feed their children, Abbott leaves many consumers with no safe option
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`but to pay full price for a newer version.
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`9.
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`Plaintiff purchased Abbott’s powdered infant formula included in the recall.
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`Plaintiff would not have purchased the product or would have paid less for it had they known about
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`the contamination and potential health hazards.
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`10.
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`As a result of Abbott’s unfair, deceptive, and/or fraudulent business practices,
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`consumers of these products, including Plaintiff, have suffered an ascertainable loss, injury-in-
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`fact, and otherwise have been harmed by Abbott’s conduct.
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`PARTIES
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`11.
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`12.
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`13.
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`Plaintiff is a resident of the City of Beaver Falls, County of Beaver, Pennsylvania.
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`Defendant is an Illinois corporation with its principal place of business in Illinois.
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`Defendant is engaged in the business of manufacturing and selling medical devices
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`and products, including powdered infant formulas through its Abbott Nutrition division.
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`14.
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`Defendant’s headquarters is located at 100 Abbott Park Road, Abbott Park, Illinois
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`60064.
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`15.
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`Defendant may accept service via its registered agent CT Corporation System, 208
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`South LaSalle Street, Suite 814, Chicago, Illinois 60604.
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`JURISDICTION AND VENUE
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`16.
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`This Court has original jurisdiction of this action under the Class Action Fairness
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`Act of 2005. Pursuant to 28 U.S.C. §§ 1332(d), this Court has original jurisdiction because the
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`aggregate claims of the members of the putative class exceeds $5 million, exclusive of costs, and
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`at least one of the Class members is a citizen of a different state than Abbott.
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`17.
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`This Court has jurisdiction over this matter because Abbott is an Illinois business,
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`with its principal place of business in Illinois.
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`18.
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`Abbott regularly and systematically conducts business and sells its products in this
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`District to customers in this District, including to members of the putative Class. As such, Abbott
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`is subject to the jurisdiction of this Court.
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`19.
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`Venue is likewise proper in this district pursuant to 28 U.S.C. § 1391 because
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`Abbott is subject to personal jurisdiction in this District and regularly conducts business in this
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`District.
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`FACTUAL BACKGROUND AND GENERAL ALLEGATIONS
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`I.
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`ABBOTT’S INFANT FORMULA.
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`20.
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`Similac is a brand of powdered infant formula produced by Abbott which Abbott
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`promises will “give babies a strong start by helping to keep them fed, happy, and healthy.” See
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`Why Similac, https://www.similac.com/why-similac.html (last visited February 18, 2022).
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`According to Abbott, Similac “is the #1 Pediatrician Recommended Brand for Immune Support.”
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`Id.
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`21.
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`Alimentum is a brand of powdered infant formula produced by Abbott for infants
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`with lactose sensitivity which Abbott claims is “the #1 infant formula brand fed for cow’s milk
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`protein
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`allergy
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`in
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`the
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`US.”
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`See
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`Alimentum
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`Product
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`Description,
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`https://www.similac.com/products/baby-formula/alimentum-powder/19-8oz-can-4pack.html (last
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`visited February 18, 2022).
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`22.
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`EleCare is a brand of powdered infant formula produced by Abbott for infants who
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`cannot tolerate intact or hydrolyzed protein due to conditions such as severe food allergies or short
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`bowel syndrome. See EleCare Product Information, https://elecare.com/ (last visited February 18,
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`2022).
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`2019.1
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`23.
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`The worldwide market for powdered infant formula was valued at $27.7 billion in
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`24.
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`The powdered infant formula market in the United States was valued at $3.65
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`billion in 2019.2
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`1 See Infant Formula Milk Powder Market Size 2021, https://www.marketwatch.com/press-
`release/infant-formula-milk-powder-market-size-2021-global-industry-trends-future-growth-
`regional-overview-market-share-by-prominent-players-developing-technologies-tendencies-
`revenue-cagr-of-42-and-forecast-outlook-till-2024-2021-12-09 (last visited February 18, 2022).
`2 See U.S. Baby Infant Formula Market to Reach $5.81 Bn, Globally, by 2027 at 5.8% CAGR:
`Allied Market Research, https://www.prnewswire.com/news-releases/us-baby-infant-formula-
`market-to-reach-5-81-bn-globally-by-2027-at-5-8-cagr-allied-market-research-301273688.html
`(last visited February 18, 2022).
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`25.
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`In 2016, Abbott’s Similac Advance product accounted for 21.2% of the powdered
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`infant formula market share, with two other Similac products in the top 10.3
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`26.
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`Abbott distributes its powdered infant formula products nationwide and
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`internationally.
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`27.
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`According to Abbott, Recalled Products were distributed to the following countries:
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`Australia, Bahrain, Barbados, Bermuda, Canada, Chile, China, Colombia, Costa Rica, Dominican
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`Republic, Ecuador, Egypt, Guam, Guatemala, Hong Kong, India, Indonesia, Israel, Jordan,
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`Kuwait, Lebanon, Malaysia, Mexico, New Zealand, Oman, Peru, Puerto Rico, Qatar, Saudi
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`Arabia, Singapore, South Africa, Sudan, Taiwan, Thailand, United Arab Emirates, United
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`Kingdom, United States, and Vietnam ANI South.
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`II.
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`CURRENT CASES LINKED TO ABBOTT’S INFANT FORMULA
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`28.
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`Currently, four infant illnesses from three states are linked Abbott’s infant formula
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`products. All four required hospitalization and one resulted in death.
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`29.
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`30.
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`31.
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`The four cases include infants from Minnesota, Ohio, and Texas.
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`The first known hospitalization occurred in and around September 6, 2021.
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`All four cases are reported to have consumed powdered infant formula produced
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`from Abbott’s Sturgis, Michigan facility.
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`32.
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`These cases include three reports of Cronobacter sakazakii infections and one
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`report of Salmonella Newport infection in infants.
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`33.
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`Cronobacter sakazakii, formerly known as Enterobacter sakazakii, is a germ that
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`can live in dry foods, such as powdered infant formula, powdered milk, herbal teas, and starches.
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`3 See Market share of the leading baby formula (powder) brands of the United States in 2016,
`based on dollar sales, https://www.statista.com/statistics/443950/market-share-of-the-leading-us-
`baby-formula-powder-brands/ (last visited February 18, 2022).
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`34.
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`Cronobacter can cause diarrhea and urinary tract infections in people of all ages,
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`but infection can be very serious in infants. Cronobacter germs can cause a dangerous blood
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`infection (sepsis) or make the linings surrounding the brain and spinal cord swell (meningitis).
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`Infants two months of age and younger are most likely to develop meningitis if they get sick from
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`Cronobacter.
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`35.
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`Salmonella Newport is one of many Salmonella serotypes, a type of bacteria known
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`to cause more than one million foodborne illnesses in the United States every year.
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`36.
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`Salmonella Newport is known to be antimicrobial resistant meaning it is resistant
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`to antibiotics like ampicillin, chloramphenicol, streptomycin, sulphonamides, and tetracycline.
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`37.
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`Salmonella illness can be serious, and children under the age of five are more likely
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`to get a serious Salmonella infection.
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`38.
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`Symptoms for salmonellosis, the name for an infection caused by Salmonella
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`bacteria, include fever, stomach cramps, diarrhea, bloody stools, prolonged vomiting, and
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`dehydration. Severe cases of salmonellosis require hospitalization and may result in death.
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`III. THE FDA’S INSPECTION OF ABBOTT’S FACILITY.
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`39.
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`40.
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`The FDA conducted an onsite inspection of Abbott’s Sturgis, Michigan facility.
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`The FDA tested Abbott’s Sturgis, Michigan facility and received several positive
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`Cronobacter results from environmental samples.
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`41.
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`The onsite inspection also included adverse inspectional observations by FDA
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`investigators.
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`42.
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`The FDA reviewed Abbott’s internal records which evidenced environmental
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`contamination with Cronobacter sakazakii bacteria.
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`43.
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`Abbott’s internal records also evidenced the destruction of product at the Sturgis,
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`Michigan facility due to the presence of Cronobacter.
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`44.
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`On February 17, 2022, the FDA, in conjunction with the CDC, announced a
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`warning to consumers to not purchase or use Recalled Products.
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`45.
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`FDA Deputy Commissioner for Food Policy and Response stated as part of the
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`FDA warning, “As this is a product used as the sole source of nutrition for many of our nation’s
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`newborns and infants, the FDA is deeply concerned about these reports of bacterial infections. We
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`want to reassure the public that we’re working diligently with our partners to investigate
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`complaints related to these products, which we recognize include infant formula produced at this
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`facility, while we work to resolve this safety concern as quickly as possible.”
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`46.
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`On February 18, 2022, Abbott announced a recall of its powdered infant formulas.
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`The recall does not include a refund, reimbursement, or replacement for consumers who purchased
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`or used Recalled Products.4
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`IV.
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`PLAINTIFF’S USE OF ABBOTT’S RECALLED PRODUCT.
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`Plaintiff has purchased Abbott’s powdered infant formulas since December 2021.
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`Plaintiff has regularly fed their infant with Abbott’s powdered infant formulas.
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`In and around February 2022, Plaintiff purchased Abbott’s Similac powdered infant
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`47.
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`48.
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`49.
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`formula.
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`50.
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`The first two digits of the product are 35 and the code on the container contains
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`“K8,” and the use-by date is December 2024.
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`51.
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`Plaintiff is now afraid to use Abbott’s Recalled Product because of the health
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`dangers described in Abbott’s recall.
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`52.
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`Plaintiff will now have to purchase new powdered infant formula at full price.
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`4 Recall Notice, https://www.similacrecall.com/us/en/home.html (last visited February 20, 2022).
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`53.
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`Plaintiff would not have purchased Abbott’s Recalled Product if they had known it
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`was defective and contaminated.
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`54.
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`Plaintiff seeks a refund, reimbursement, or replacement of the Recalled Product,
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`including any and all other damages for the injuries they have sustained as a result of Abbott’s
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`defective and contaminated Recalled Products.
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`CLASS ACTION ALLEGATIONS
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`55.
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`Plaintiff brings this action pursuant to Fed. R. Civ. P. 23 on behalf of a Class of
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`individuals defined as:
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`Nationwide Class:
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`All persons who, within the applicable statute of limitations period, purchased a
`Recalled Product manufactured by Abbott Laboratories.
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`Pennsylvania Class:
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`All persons who, within the applicable statute of limitations period, purchased a
`Recalled Product manufactured by Abbott Laboratories.
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`56.
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`Plaintiff reserves the right to modify or amend the definition of the proposed Class
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`and/or to add subclasses, if necessary, before this Court determines whether class certification is
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`appropriate.
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`57.
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`Excluded from the Class are: (1) any entity in which Defendant has a controlling
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`interest; (2) officers or directors of Defendant; (3) this Court and any of its employees assigned to
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`work on the case; and (4) all employees of the law firms representing Plaintiff and the Class.
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`58.
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`This action is brought and may be properly maintained on behalf of each Class
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`member.
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`59.
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`Numerosity of the Class: The members of the Class are so numerous that a joinder
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`of all members would be impracticable. While the exact number of Class members is presently
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`unknown to Plaintiff, and can only be determined through appropriate discovery, Plaintiff believes
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`the Class is likely to include thousands of members based on the fact Abbott distributes its Recalled
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`Products nationwide.
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`60.
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`The Class definition identifies unnamed Plaintiffs by describing a set of common
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`characteristics sufficient to allow a member of that group to identify themselves as having a right
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`to recover damages from Defendant. Other than by direct notice by mail or email, alternatively
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`proper and sufficient notice of this action may be provided to the Class through notice published
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`in newspapers or other publications.
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`61.
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`Commonality: This action involves common questions of law and fact. The
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`questions of law and fact common to both Plaintiff and the Class include, but are not limited to,
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`the following:
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`a.
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`b.
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`c.
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`d.
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`e.
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`f.
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`g.
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`Whether the Recalled Products fail under the implied warranty of usability;
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`Whether Abbott was negligent in selling the Recalled Products;
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`Whether Abbott failed to warn consumers regarding the risks of the
`Recalled Products;
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`Whether Abbott’s conduct constitutes unfair or deceptive acts or practices
`under Pennsylvania’s Unfair Trade Practices and Consumer Protection
`Law;
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`Whether Abbott was unjustly enriched by the sale of Recalled Products;
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`The appropriate nature of class-wide equitable relief; and
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`The proper method or methods to determine and measure Plaintiff’s and the
`Class’ damages.
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`62.
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`Typicality: Plaintiff’s claims are typical of all members of the Class. The evidence
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`and the legal theories regarding Abbott’s alleged wrongful conduct committed against Plaintiff
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`and the Class are substantially the same because all putative Class members purchased Abbott’s
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`Recalled Product for personal use and can no longer use the Recalled Products for their intended
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`use. Accordingly, in pursuing their own self-interest in litigating their claims, Plaintiff will also
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`serve the interests of the Class.
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`63.
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`Adequacy: Plaintiff will fairly and adequately protect the interests of the Class.
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`Plaintiff retained competent counsel experienced in class action litigation to ensure such
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`protection. There are no material conflicts between the claims of the representative Plaintiff and
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`the Class that would make class certification inappropriate. Additionally, Plaintiff’s Counsel are
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`competent to advance the interests of the Class having been designated as Lead Counsel in dozens,
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`if not hundreds, of Class cases. Plaintiff and their Counsel intend to prosecute this action
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`vigorously.
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`64.
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`Predominance and Superiority: The matter is properly maintained as a class action
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`under Fed. R. Civ. P. 23(b)(3) because the common questions of law and fact identified herein,
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`and to be identified through discovery, predominate over questions that may affect only individual
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`Class members. Further, a class action is superior to all other available methods for the fair and
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`efficient adjudication of this matter because the injuries suffered by the individual Class members
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`are relatively small. As such, the expense and burden of individual litigation would make it
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`virtually impossible for Plaintiff and the Class to individually seek redress for Abbott’s wrongful
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`conduct. Even if any individual person or group(s) of the Class could afford individual litigation,
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`it would be unduly burdensome to the courts in which the individual litigation would proceed. The
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`class action device is preferable to individual litigation because it provides the benefits of unitary
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`adjudication, economies of scale, and comprehensive adjudication by a single court. In contrast,
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`the prosecution of separate actions by individual Class members would create a risk of inconsistent
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`or varying adjudications with respect to individual Class members that would establish
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`incompatible standards of conduct for the party (or parties) opposing the Class and would lead to
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`repetitious trials of the numerous common questions of law and fact. Plaintiff knows of no
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`difficulty that will be encountered in the management of this litigation that would preclude its
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`maintenance as a class action. As a result, a class action is superior to other available methods for
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`the fair and efficient adjudication of this action. Absent a class action, Plaintiff and the Class will
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`continue to suffer losses, thereby allowing Abbott’s violations of law to proceed without remedy
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`and allowing Abbott to retain the proceeds of their ill-gotten gains.
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`65.
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`Plaintiff anticipates the issuance of notice setting forth the subject and nature of the
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`instant action to the proposed Class. To the extent any further notices may be required, Plaintiff
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`anticipates the use of additional media or mailings.
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`CAUSES OF ACTION
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`COUNT I
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`BREACH OF THE IMPLIED WARRANTY OF USABILITY
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`(On Behalf of Plaintiff and the Nationwide Class)
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`66.
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`Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs
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`as if fully set forth herein.
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`67.
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`Abbott, as manufacturer of the Recalled Products, impliedly warranted to Plaintiff
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`and the Class that the Recalled Products were usable for their ordinary and intended use.
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`68.
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`Abbott breached the implied warranty of usability in connection with the sale and
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`distribution of the Recalled Products. At the point of sale, the Recalled Products while appearing
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`normal—contained defects as set forth herein rendering them unusable.
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`69.
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`Abbott, its agents and its employees knew or should have known that the Recalled
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`Products suffer from a defect that causes negative health effects and/or places persons at risk for
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`negative health effects to such an extent that the products are unusable.
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`70.
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`Abbott’s recall announcement instructs Class Members to not use Recalled
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`Products because of the health risks. This renders the products unusable and thus worthless.
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`71.
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`Abbott did not provide appropriate warranty relief notwithstanding the risks of
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`using the Recalled Products. Plaintiff and the Class reasonably expected, at the time of purchase,
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`that the Recalled Products were usable for their ordinary and intended use.
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`72.
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`Had Plaintiff and Class Members known they would not be able to use their
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`Recalled Products, they would not have purchased them or would have paid significantly less for
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`them.
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`73.
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`As a direct and proximate result of Abbott’s breach of the implied warranty of
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`usability, Plaintiff and the Class have sustained damages in an amount to be determined at trial.
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`COUNT II
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`BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
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`(On Behalf of Plaintiff and the Nationwide Class)
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`74.
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`Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs
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`as if fully set forth herein.
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`75.
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`Abbott, as manufacturers of the Recalled Products, impliedly warranted to Plaintiff
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`and the Class that the Recalled Products were of merchantable quality and safe for their ordinary
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`and intended use.
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`76.
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`Abbott breached the implied warranty of merchantability in connection with the
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`sale and distribution of the Recalled Products. At the point of sale, the Recalled Products while
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`appearing normal—contained defects as set forth herein rendering them unsuitable and unsafe for
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`personal use.
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`77.
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`Had Plaintiff and the Class known the Recalled Products were unsafe for use, they
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`would not have purchased them.
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`78.
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`Abbott did not provide appropriate warranty relief notwithstanding the risks of
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`using the Recalled Products. Plaintiff and the Class reasonably expected, at the time of purchase,
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`that the Recalled Products were safe for their ordinary and intended use.
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`79.
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`As a direct and proximate result of Abbott’s breach of the implied warranty of
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`merchantability, Plaintiff and the Class have sustained damages in an amount to be determined at
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`trial.
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`COUNT III
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`NEGLIGENT FAILURE TO WARN
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`(On Behalf of Plaintiff and the Nationwide Class)
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`80.
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`Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs
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`as if fully set forth herein.
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`81.
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`Abbott owed Plaintiff and Class Members a duty of care and to warn of any risks
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`associated with the Recalled Products. Abbott knew or should have known of the true risks but
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`failed to warn Plaintiff and Class Members.
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`82.
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`Abbott’s negligent breach of duty caused Plaintiff and Class Members economic
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`damages and injuries in the form of exposure to products with Cronobacter sakazakii and
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`Salmonella Newport.
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`83.
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`Plaintiff and Class members would not have purchased, chosen, and/or paid for all
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`or part of the Recalled Products had they known that the risks associated with purchasing the
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`product.
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`84.
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`Plaintiff and the Class suffered damages in an amount to be determined at trial.
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`COUNT IV
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`NEGLIGENT RECALL
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`(On Behalf of Plaintiff and the Nationwide Class)
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`85.
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`Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs
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`as if fully set forth herein.
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`86.
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`In issuing a voluntary recall, Abbott assumed duties to Plaintiff and the Class to
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`exercise reasonable care in issuing and implementing the recall.
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`87.
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`Abbott breached its duties by failing to adequately warn Plaintiff and the Class of
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`the dangers associated with the use of the Recalled Products by refusing to promptly replace the
`
`Recalled Products.
`
`88.
`
`As a direct result of Abbott’s breach of duty, Plaintiff and the Class have suffered
`
`harm in an amount to be determined at trial.
`
`COUNT V
`
`VIOLATION OF PENNSYLVANIA’S UNFAIR TRADE PRACTICES AND CONSUMER
`PROTECTION LAW
`
`(On Behalf of Plaintiff and the Pennsylvania Class)
`
`89.
`
`Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs
`
`as if fully set forth herein.
`
`Plaintiff and Abbott are “persons” according to 73 Pa. Stat. § 201-2(2).
`
`Abbott engages in “trade” and “commerce” within the meaning of 73 Pa. Stat. §
`
`90.
`
`91.
`
`201-2(3).
`
`92.
`
`Pennsylvania’s UTPCPL declares unlawful unfair methods of competition and
`
`unfair or deceptive acts or practices in the conduct of any trade or commerce as defined in 73 Pa.
`
`Stat. § 201-2(4). 73 Pa. Stat. § 201-3(a).
`
`93.
`
`Abbott’s conduct of manufacturing, producing, and selling Recalled Products as
`
`alleged herein is a violation of the Pennsylvania UTPCPL including but not limited to:
`
`(ii) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship,
`approval or certification of goods or services;
`
`
`
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`

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`Case: 1:22-cv-01239 Document #: 1 Filed: 03/08/22 Page 15 of 18 PageID #:15
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`
`
`
`(iii) Causing likelihood of confusion or of misunderstanding as to affiliation, connection
`or association with, or certification by, another;
`
`(v) Representing that goods or services have sponsorship, approval, characteristics,
`ingredients, uses, benefits or quantities that they do not have;
`
`(vi) Representing that goods are original or new if they are deteriorated, altered,
`reconditioned, reclaimed, used or secondhand;
`
`(vii) Representing that goods or services are of a particular standard, quality or grade, or
`that goods are of a particular style or model, if they are of another;
`
`(ix) Advertising goods or services with intent not to sell them as advertised;
`
`(xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of
`confusion or of misunderstanding.
`
`73 Pa. Stat. § 201-2(4).
`
`94.
`
`Abbott used fraud, misrepresentations, misleading statements, deceptive practices,
`
`omissions, and false promises in manufacturing, producing, and selling Recalled Products as
`
`alleged herein.
`
`95.
`
`Plaintiff reasonably relied upon misrepresentations, misleading statements,
`
`deceptive practices, omissions, and false promises by Abbott, which resulted in injury to her.
`
`96.
`
`Plaintiff has suffered an ascertainable loss of money because of the use or
`
`employment by Abbott of a method, act or practice prohibited or declared to be unlawful by the
`
`provisions of 73 Pa. Stat. § 201-2(4).
`
`97.
`
`Plaintiff’s actual out-of-pocket loss was proximately caused by Abbott’s violation
`
`of 73 Pa. Stat. § 201-2(4).
`
`98.
`
`Should Plaintiff prevail in this Action, reasonable attorneys’ fees are to be awarded
`
`pursuant to 73 Pa. Stat. § 201-9.2(a).
`
`COUNT VI
`
`UNJUST ENRICHMENT
`
`15
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`Case: 1:22-cv-01239 Document #: 1 Filed: 03/08/22 Page 16 of 18 PageID #:16
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`
`
`(On Behalf of Plaintiff and the Nationwide Class)
`
`99.
`
`Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs
`
`as if fully set forth herein.
`
`100. Plaintiff and the Class members conferred a tangible and material economic benefit
`
`upon Abbott by purchasing the Recalled Products. Plaintiff and Class members would not have
`
`purchased, chosen and/or paid for all or part of Recalled Products had they known that they the
`
`true risks of using the Recalled Products while Abbott cannot provide a timely repair or
`
`replacement for the Recalled Products. Under these circumstances, it would be unjust and
`
`inequitable for Abbott to retain the economic benefits it received at the expense of Plaintiff and
`
`the Class.
`
`101. Failing to require Abbott to provide remuneration under these circumstances would
`
`result in Abbott being unjustly enriched at the expense of Plaintiff and the Class members who
`
`endure being exposed to the risk of developing serious medical conditions and can no longer use
`
`their products safely.
`
`102. Abbott’s retention of the benefit conferred upon it by Plaintiff and the Class would
`
`be unjust and inequitable.
`
`103. Plaintiff and the Class suffered damages in an amount to be determined at trial.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff, individually and on behalf of the Class, demands a jury trial on
`
`all claims so triable and judgment as follows:
`
`A.
`
`B.
`
`Certifying the proposed Nationwide Class, appointing Plaintiff as representative of
`the Nationwide Class, and appointing counsel for Plaintiff as Lead Counsel for the
`Nationwide Class;
`
`Certifying the proposed Pennsylvania Class, appointing Plaintiff as representative
`of the Pennsylvania Class, and appointing counsel for Plaintiff as Lead Counsel for
`the Pennsylvania Class;
`
`
`
`16
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`Case: 1:22-cv-01239 Document #: 1 Filed: 03/08/22 Page 17 of 18 PageID #:17
`
`
`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`H.
`
`I.
`
`J.
`
`K.
`
`Finding that Abbott breached the implied warranty of usability;
`
`Finding that Abbott breached the implied warranty of merchantability;
`
`Finding that Abbott negligently failed to warn Plaintiff and the Class;
`
`Finding that Abbott negligently recalled the Recalled Products;
`
`Finding that Abbott violated Pennsylvania’s UTPCPL;
`
`Finding that Abbott was unjustly enriched by its sale of the Recalled Products;
`
`Awarding damages in an amount according to proof;
`
`Awarding pre- and post-judgment interest at the maximum rate permitted by
`applicable law;
`
`Reimbursing all costs, expenses, and disbursements accrued by Plaintiff in
`connection with this action, including reasonable attorneys’ fees, costs, and
`expenses pursuant to applicable law and any other basis; and
`
`L.
`
`Awarding such other relief as this Court deems just and proper.
`
`DEMAND FOR JURY TRIAL
`
`Plaintiff, individually and on behalf of the Class, hereby demands a trial by jury on all
`
`issues in this Class Action Complaint that are so triable.
`
`
`
`Dated: March 8, 2022
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
` s/ Timothy J. Becker
`Timothy J. Becker (MN Bar #0256663)
`Jacob R. Rusch (MN Bar #0391892)
`Zackary S. Kaylor (MN Bar #0400854)
`JOHNSON BECKER, PLLC
`444 Cedar Street, Suite 1800
`Saint Paul, MN 55101
`T: 612-436-1800
`F: 612-436-1801
`E: tbecker@johnsonbecker.com
`E: jrusch@johnsonbecker.com
`E: zkaylor@johnsonbecker.com
`
`AND
`
`
`
`
`17
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`

`

`Case: 1:22-cv-01239 Document #: 1 Filed: 03/08/22 Page 18 of 18 PageID #:18
`
`
`
`Peter J. Flowers (IL Bar #6210847)
`Michael W. Lenert (IL Bar #6297019)
`MEYERS & FLOWERS, LLC
`3 North Second Street, Suite 300
`St. Charles, IL 60174
`T: (630) 232-6333
`E: pjf@meyers-flowers.com
`E: mwl@meyers-flowers.com
`
`Attorneys for Plaintiff and the Class
`
`
`
`
`18
`
`