Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.1 Filed 03/15/22 Page 1 of 18
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`
`
`KEYONNA WILLIAM, individually and on
`behalf of all others similarly situated,
`
`
`
`Civil Action No. _________________
`
`
`CLASS ACTION COMPLAINT
`
`JURY TRIAL DEMAND
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`vs.
`
`ABBOTT LABORATORIES D/B/A
`ABBOTT NUTRITION,
`
`
`
`
`
`Defendant.
`
`
`
`COMES NOW, KEYONNA WILLIAM (“Plaintiff”), individually and on behalf of the
`
`Class, who states and alleges as follows:
`
`INTRODUCTION
`
`1.
`
`Plaintiff brings this action on behalf of herself and on behalf of a Class of similarly
`
`situated consumers against Defendant Abbott Laboratories d/b/a Abbott Nutrition (“Defendant” or
`
`“Abbott”) who purchased certain powdered infant formulas manufactured and sold by Abbott.
`
`2.
`
`Abbott manufactures and sells infant formula products. These products include the
`
`brands Similac, Alimentum, and EleCare which parents trust and use to feed and nourish their
`
`children.
`
`3.
`
`On February 17, 2022, the U.S. Food and Drug Administration (“FDA”) in
`
`conjunction with the U.S. Centers for Disease Control and Prevention (“CDC”) alerted consumers
`
`to avoid purchasing or using certain powdered infant formula products produced at Abbott’s
`
`Sturgis, Michigan facility.
`
`
`
`1
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.2 Filed 03/15/22 Page 2 of 18
`
`
`
`4.
`
`Specifically, the FDA announced that it is investigating consumer complaints of
`
`Cronobacter sakazakii and Salmonella Newport infections connected to powdered infant formula
`
`products produced by Abbott.
`
`5.
`
`On February 18, 2020, Abbott announced a recall of its powdered infant formula
`
`products, including the brands Similac, Alimentum, and EleCare because they suffer from a defect
`
`which could result in serious injury, permanent impairment, and even be life-threatening.
`
`6.
`
`These products may contain Cronobacter sakazakii and Salmonella Newport
`
`bacteria, which when consumed, can result in serious adverse health effects, including sepsis,
`
`meningitis, poor feeding, irritability, fever, jaundice, grunting breaths, abnormal movements, and
`
`bowel damage.
`
`7.
`
`Similac, Alimentum, and EleCare products where the first two digits of the product
`
`are 22 through 37 and the code on the container contains “K8,” “SH,” or “Z2,” and the use-by date
`
`is April 1, 2022 or later are all part of the recall (“Recalled Products”).
`
`8.
`
`Despite the recall, Abbott is not crediting or replacing affected Recalled Products,
`
`which many parents and caretakers rely on daily to feed and care for their children. Since Abbott
`
`is now telling consumers it is not safe for their infants to consume these products, but many
`
`consumers rely on them to feed their children, Abbott leaves many consumers with no safe option
`
`but to pay full price for a newer version.
`
`9.
`
`Plaintiff purchased Abbott’s powdered infant formula included in the recall.
`
`Plaintiff would not have purchased the product or would have paid less for it had they known about
`
`the contamination and potential health hazards.
`
`10.
`
`As a result of Abbott’s unfair, deceptive, and/or fraudulent business practices,
`
`consumers of these products, including Plaintiff, have suffered an ascertainable loss, injury-in-
`
`fact, and otherwise have been harmed by Abbott’s conduct.
`
`
`
`2
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.3 Filed 03/15/22 Page 3 of 18
`
`
`
`PARTIES
`
`11.
`
`12.
`
`13.
`
`Plaintiff is a resident of the City of Wayne, County of Wayne, Michigan.
`
`Defendant is an Illinois corporation with its principal place of business in Illinois.
`
`Defendant is engaged in the business of manufacturing and selling medical devices
`
`and products, including powdered infant formulas through its Abbott Nutrition division.
`
`14.
`
`Defendant may accept service via its registered agent The Corporation Company at
`
`40600 Ann Arbor Road East, Suite 201, Plymouth, Michigan 48170.
`
`JURISDICTION AND VENUE
`
`15.
`
`This Court has original jurisdiction of this action under the Class Action Fairness
`
`Act of 2005. Pursuant to 28 U.S.C. §§ 1332(d), this Court has original jurisdiction because the
`
`aggregate claims of the members of the putative class exceeds $5 million, exclusive of costs, and
`
`at least one of the Class members is a citizen of a different state than Abbott.
`
`16.
`
`Abbott regularly and systematically conducts business and sells its products in this
`
`District to customers in this District, including to Plaintiff and the Class. As such, Abbott is subject
`
`to the jurisdiction of this Court.
`
`17.
`
`Venue is likewise proper in this district pursuant to 28 U.S.C. § 1391 because
`
`Abbott is subject to personal jurisdiction in this District and regularly conducts business in this
`
`District.
`
`FACTUAL BACKGROUND AND GENERAL ALLEGATIONS
`
`I.
`
`ABBOTT’S INFANT FORMULA.
`
`18.
`
`Similac is a brand of powdered infant formula produced by Abbott which Abbott
`
`
`
`promises will “give babies a strong start by helping to keep them fed, happy, and healthy.” See
`
`Why Similac, https://www.similac.com/why-similac.html (last visited February 18, 2022).
`
`
`
`3
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.4 Filed 03/15/22 Page 4 of 18
`
`
`
`According to Abbott, Similac “is the #1 Pediatrician Recommended Brand for Immune Support.”
`
`Id.
`
`19.
`
`Alimentum is a brand of powdered infant formula produced by Abbott for infants
`
`with lactose sensitivity which Abbott claims is “the #1 infant formula brand fed for cow’s milk
`
`protein
`
`allergy
`
`in
`
`the
`
`US.”
`
`See
`
`Alimentum
`
`Product
`
`Description,
`
`https://www.similac.com/products/baby-formula/alimentum-powder/19-8oz-can-4pack.html (last
`
`visited February 18, 2022).
`
`20.
`
`EleCare is a brand of powdered infant formula produced by Abbott for infants who
`
`cannot tolerate intact or hydrolyzed protein due to conditions such as severe food allergies or short
`
`bowel syndrome. See EleCare Product Information, https://elecare.com/ (last visited February 18,
`
`2022).
`
`2019.1
`
`21.
`
`The worldwide market for powdered infant formula was valued at $27.7 billion in
`
`22.
`
`The powdered infant formula market in the United States was valued at $3.65
`
`billion in 2019.2
`
`23.
`
`In 2016, Abbott’s Similac Advance product accounted for 21.2% of the powdered
`
`infant formula market share, with two other Similac products in the top 10.3
`
`
`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).
`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).
`4
`
`
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.5 Filed 03/15/22 Page 5 of 18
`
`
`
`24.
`
`Abbott distributes its powdered infant formula products nationwide and
`
`internationally.
`
`25.
`
`According to Abbott, Recalled Products were distributed to the following countries:
`
`Australia, Bahrain, Barbados, Bermuda, Canada, Chile, China, Colombia, Costa Rica, Dominican
`
`Republic, Ecuador, Egypt, Guam, Guatemala, Hong Kong, India, Indonesia, Israel, Jordan,
`
`Kuwait, Lebanon, Malaysia, Mexico, New Zealand, Oman, Peru, Puerto Rico, Qatar, Saudi
`
`Arabia, Singapore, South Africa, Sudan, Taiwan, Thailand, United Arab Emirates, United
`
`Kingdom, United States, and Vietnam ANI South.
`
`II.
`
`CURRENT CASES LINKED TO ABBOTT’S INFANT FORMULA
`
`26.
`
`Currently, four infant illnesses from three states are linked Abbott’s infant formula
`
`products. All four required hospitalization and one resulted in death.
`
`27.
`
`28.
`
`29.
`
`The four cases include infants from Minnesota, Ohio, and Texas.
`
`The first known hospitalization occurred in and around September 6, 2021.
`
`All four cases are reported to have consumed powdered infant formula produced
`
`from Abbott’s Sturgis, Michigan facility.
`
`30.
`
`These cases include three reports of Cronobacter sakazakii infections and one
`
`report of Salmonella Newport infection in infants.
`
`31.
`
`Cronobacter sakazakii, formerly known as Enterobacter sakazakii, is a germ that
`
`can live in dry foods, such as powdered infant formula, powdered milk, herbal teas, and starches.
`
`32.
`
`Cronobacter can cause diarrhea and urinary tract infections in people of all ages,
`
`but infection can be very serious in infants. Cronobacter germs can cause a dangerous blood
`
`infection (sepsis) or make the linings surrounding the brain and spinal cord swell (meningitis).
`
`Infants two months of age and younger are most likely to develop meningitis if they get sick from
`
`Cronobacter.
`
`
`
`5
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.6 Filed 03/15/22 Page 6 of 18
`
`
`
`33.
`
`Salmonella Newport is one of many Salmonella serotypes, a type of bacteria known
`
`to cause more than one million foodborne illnesses in the United States every year.
`
`34.
`
`Salmonella Newport is known to be antimicrobial resistant meaning it is resistant
`
`to antibiotics like ampicillin, chloramphenicol, streptomycin, sulphonamides, and tetracycline.
`
`35.
`
`Salmonella illness can be serious, and children under the age of five are more likely
`
`to get a serious Salmonella infection.
`
`36.
`
`Symptoms for salmonellosis, the name for an infection caused by Salmonella
`
`bacteria, include fever, stomach cramps, diarrhea, bloody stools, prolonged vomiting, and
`
`dehydration. Severe cases of salmonellosis require hospitalization and may result in death.
`
`III. THE FDA’S INSPECTION OF ABBOTT’S FACILITY.
`
`37.
`
`38.
`
`The FDA conducted an onsite inspection of Abbott’s Sturgis, Michigan facility.
`
`The FDA tested Abbott’s Sturgis, Michigan facility and received several positive
`
`Cronobacter results from environmental samples.
`
`39.
`
`The onsite inspection also included adverse inspectional observations by FDA
`
`investigators.
`
`40.
`
`The FDA reviewed Abbott’s internal records which evidenced environmental
`
`contamination with Cronobacter sakazakii bacteria.
`
`41.
`
`Abbott’s internal records also evidenced the destruction of product at the Sturgis,
`
`Michigan facility due to the presence of Cronobacter.
`
`42.
`
`On February 17, 2022, the FDA, in conjunction with the CDC, announced a
`
`warning to consumers to not purchase or use Recalled Products.
`
`43.
`
`FDA Deputy Commissioner for Food Policy and Response stated as part of the
`
`FDA warning, “As this is a product used as the sole source of nutrition for many of our nation’s
`
`newborns and infants, the FDA is deeply concerned about these reports of bacterial infections. We
`
`
`
`6
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.7 Filed 03/15/22 Page 7 of 18
`
`
`
`want to reassure the public that we’re working diligently with our partners to investigate
`
`complaints related to these products, which we recognize include infant formula produced at this
`
`facility, while we work to resolve this safety concern as quickly as possible.”
`
`44.
`
`On February 18, 2022, Abbott announced a recall of its powdered infant formulas.
`
`The recall does not include a refund, reimbursement, or replacement for consumers who purchased
`
`or used Recalled Products.4
`
`IV.
`
`PLAINTIFF’S USE OF ABBOTT’S RECALLED PRODUCT.
`
`45.
`
`46.
`
`47.
`
`Plaintiff has purchased Abbott’s powdered infant formulas since November 2021.
`
`Plaintiff has regularly fed their infant with Abbott’s powdered infant formulas.
`
`In and around November 2021 Plaintiff purchased Abbott’s Similac powdered
`
`infant formula.
`
`48.
`
`The first two digits of the product are 28 and the code on the container contains
`
`“SH,” and the use-by date is November 1, 2022.
`
`49.
`
`Plaintiff is now afraid to use Abbott’s Recalled Product because of the health
`
`dangers described in Abbott’s recall.
`
`50.
`
`51.
`
`Plaintiff will now have to purchase new powdered infant formula at full price.
`
`Plaintiff would not have purchased Abbott’s Recalled Product if they had known it
`
`was defective and contaminated.
`
`52.
`
`Plaintiff seeks a refund, reimbursement, or replacement of the Recalled Product,
`
`including any and all other damages for the injuries they have sustained as a result of Abbott’s
`
`defective and contaminated Recalled Products.
`
`
`
`
`4 Recall Notice, https://www.similacrecall.com/us/en/home.html (last visited February 20, 2022).
`7
`
`
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.8 Filed 03/15/22 Page 8 of 18
`
`
`
`CLASS ACTION ALLEGATIONS
`
`53.
`
`Plaintiff brings this action pursuant to Fed. R. Civ. P. 23 on behalf of a Class of
`
`individuals defined as:
`
`Nationwide Class:
`
`All persons who, within the applicable statute of limitations period, purchased a
`Recalled Product manufactured by Abbott Laboratories.
`
`Michigan Class:
`
`All persons who, within the applicable statute of limitations period, purchased a
`Recalled Product manufactured by Abbott Laboratories.
`
`54.
`
`Plaintiff reserves the right to modify or amend the definition of the proposed Class
`
`and/or to add subclasses, if necessary, before this Court determines whether class certification is
`
`appropriate.
`
`55.
`
`Excluded from the Class are: (1) any entity in which Defendant has a controlling
`
`interest; (2) officers or directors of Defendant; (3) this Court and any of its employees assigned to
`
`work on the case; and (4) all employees of the law firms representing Plaintiff and the Class.
`
`56.
`
`This action is brought and may be properly maintained on behalf of each Class
`
`member.
`
`57.
`
`Numerosity of the Class: The members of the Class are so numerous that a joinder
`
`of all members would be impracticable. While the exact number of Class members is presently
`
`unknown to Plaintiff, and can only be determined through appropriate discovery, Plaintiff believes
`
`the Class is likely to include thousands of members based on the fact Abbott distributes its Recalled
`
`Products nationwide.
`
`58.
`
`The Class definition identifies unnamed Plaintiffs by describing a set of common
`
`characteristics sufficient to allow a member of that group to identify themselves as having a right
`
`to recover damages from Defendant. Other than by direct notice by mail or email, alternatively
`
`
`
`8
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.9 Filed 03/15/22 Page 9 of 18
`
`
`
`proper and sufficient notice of this action may be provided to the Class through notice published
`
`in newspapers or other publications.
`
`59.
`
`Commonality: This action involves common questions of law and fact. The
`
`questions of law and fact common to both Plaintiff and the Class include, but are not limited to,
`
`the following:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g.
`
`Whether the Recalled Products fail under the implied warranty of usability;
`
`Whether Abbott was negligent in selling the Recalled Products;
`
`Whether Abbott failed to warn consumers regarding the risks of the
`Recalled Products;
`
`Whether Abbott’s conduct constitutes unfair or deceptive acts or practices
`under the Michigan Consumer Protection Act;
`
`Whether Abbott was unjustly enriched by the sale of Recalled Products;
`
`The appropriate nature of class-wide equitable relief; and
`
`The proper method or methods to determine and measure Plaintiff’s and the
`Class’ damages.
`
`60.
`
`Typicality: Plaintiff’s claims are typical of all members of the Class. The evidence
`
`and the legal theories regarding Abbott’s alleged wrongful conduct committed against Plaintiff
`
`and the Class are substantially the same because all putative Class members purchased Abbott’s
`
`Recalled Product for personal use and can no longer use the Recalled Products for their intended
`
`use. Accordingly, in pursuing their own self-interest in litigating their claims, Plaintiff will also
`
`serve the interests of the Class.
`
`61.
`
`Adequacy: Plaintiff will fairly and adequately protect the interests of the Class.
`
`Plaintiff retained competent counsel experienced in class action litigation to ensure such
`
`protection. There are no material conflicts between the claims of the representative Plaintiff and
`
`the Class that would make class certification inappropriate. Additionally, Plaintiff’s Counsel are
`
`competent to advance the interests of the Class having been designated as Lead Counsel in dozens,
`
`
`
`9
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.10 Filed 03/15/22 Page 10 of 18
`
`
`
`if not hundreds, of Class cases. Plaintiff and their Counsel intend to prosecute this action
`
`vigorously.
`
`62.
`
`Predominance and Superiority: The matter is properly maintained as a class action
`
`under Fed. R. Civ. P. 23(b)(3) because the common questions of law and fact identified herein,
`
`and to be identified through discovery, predominate over questions that may affect only individual
`
`Class members. Further, a class action is superior to all other available methods for the fair and
`
`efficient adjudication of this matter because the injuries suffered by the individual Class members
`
`are relatively small. As such, the expense and burden of individual litigation would make it
`
`virtually impossible for Plaintiff and the Class to individually seek redress for Abbott’s wrongful
`
`conduct. Even if any individual person or group(s) of the Class could afford individual litigation,
`
`it would be unduly burdensome to the courts in which the individual litigation would proceed. The
`
`class action device is preferable to individual litigation because it provides the benefits of unitary
`
`adjudication, economies of scale, and comprehensive adjudication by a single court. In contrast,
`
`the prosecution of separate actions by individual Class members would create a risk of inconsistent
`
`or varying adjudications with respect to individual Class members that would establish
`
`incompatible standards of conduct for the party (or parties) opposing the Class and would lead to
`
`repetitious trials of the numerous common questions of law and fact. Plaintiff knows of no
`
`difficulty that will be encountered in the management of this litigation that would preclude its
`
`maintenance as a class action. As a result, a class action is superior to other available methods for
`
`the fair and efficient adjudication of this action. Absent a class action, Plaintiff and the Class will
`
`continue to suffer losses, thereby allowing Abbott’s violations of law to proceed without remedy
`
`and allowing Abbott to retain the proceeds of their ill-gotten gains.
`
`
`
`10
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.11 Filed 03/15/22 Page 11 of 18
`
`
`
`63.
`
`Plaintiff anticipates the issuance of notice setting forth the subject and nature of the
`
`instant action to the proposed Class. To the extent any further notices may be required, Plaintiff
`
`anticipates the use of additional media or mailings.
`
`CAUSES OF ACTION
`
`COUNT I
`
`BREACH OF THE IMPLIED WARRANTY OF USABILITY
`
`(On Behalf of Plaintiff and the Nationwide Class)
`
`64.
`
`Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs
`
`as if fully set forth herein.
`
`65.
`
`Abbott, as manufacturer of the Recalled Products, impliedly warranted to Plaintiff
`
`and the Class that the Recalled Products were usable for their ordinary and intended use.
`
`66.
`
`Abbott breached the implied warranty of usability in connection with the sale and
`
`distribution of the Recalled Products. At the point of sale, the Recalled Products while appearing
`
`normal—contained defects as set forth herein rendering them unusable.
`
`67.
`
`Abbott, its agents and its employees knew or should have known that the Recalled
`
`Products suffer from a defect that causes negative health effects and/or places persons at risk for
`
`negative health effects to such an extent that the products are unusable.
`
`68.
`
`Abbott’s recall announcement instructs Class Members to not use Recalled
`
`Products because of the health risks. This renders the products unusable and thus worthless.
`
`69.
`
`Abbott did not provide appropriate warranty relief notwithstanding the risks of
`
`using the Recalled Products. Plaintiff and the Class reasonably expected, at the time of purchase,
`
`that the Recalled Products were usable for their ordinary and intended use.
`
`
`
`11
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.12 Filed 03/15/22 Page 12 of 18
`
`
`
`70.
`
`Had Plaintiff and Class Members known they would not be able to use their
`
`Recalled Products, they would not have purchased them or would have paid significantly less for
`
`them.
`
`71.
`
`As a direct and proximate result of Abbott’s breach of the implied warranty of
`
`usability, Plaintiff and the Class have sustained damages in an amount to be determined at trial.
`
`COUNT II
`
`BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
`
`(On Behalf of Plaintiff and the Nationwide Class)
`
`72.
`
`Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs
`
`as if fully set forth herein.
`
`73.
`
`Abbott, as manufacturers of the Recalled Products, impliedly warranted to Plaintiff
`
`and the Class that the Recalled Products were of merchantable quality and safe for their ordinary
`
`and intended use.
`
`74.
`
`Abbott breached the implied warranty of merchantability in connection with the
`
`sale and distribution of the Recalled Products. At the point of sale, the Recalled Products while
`
`appearing normal—contained defects as set forth herein rendering them unsuitable and unsafe for
`
`personal use.
`
`75.
`
`Had Plaintiff and the Class known the Recalled Products were unsafe for use, they
`
`would not have purchased them.
`
`76.
`
`Abbott did not provide appropriate warranty relief notwithstanding the risks of
`
`using the Recalled Products. Plaintiff and the Class reasonably expected, at the time of purchase,
`
`that the Recalled Products were safe for their ordinary and intended use.
`
`
`
`12
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.13 Filed 03/15/22 Page 13 of 18
`
`
`
`77.
`
`As a direct and proximate result of Abbott’s breach of the implied warranty of
`
`merchantability, Plaintiff and the Class have sustained damages in an amount to be determined at
`
`trial.
`
`COUNT III
`
`NEGLIGENT FAILURE TO WARN
`
`(On Behalf of Plaintiff and the Nationwide Class)
`
`78.
`
`Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs
`
`as if fully set forth herein.
`
`79.
`
`Abbott owed Plaintiff and Class Members a duty of care and to warn of any risks
`
`associated with the Recalled Products. Abbott knew or should have known of the true risks but
`
`failed to warn Plaintiff and Class Members.
`
`80.
`
`Abbott’s negligent breach of duty caused Plaintiff and Class Members economic
`
`damages and injuries in the form of exposure to products with Cronobacter sakazakii and
`
`Salmonella Newport.
`
`81.
`
`Plaintiff and Class members would not have purchased, chosen, and/or paid for all
`
`or part of the Recalled Products had they known that the risks associated with purchasing the
`
`product.
`
`82.
`
`Plaintiff and the Class suffered damages in an amount to be determined at trial.
`
`COUNT IV
`
`NEGLIGENT RECALL
`
`(On Behalf of Plaintiff and the Nationwide Class)
`
`83.
`
`Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs
`
`as if fully set forth herein.
`
`
`
`13
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.14 Filed 03/15/22 Page 14 of 18
`
`
`
`84.
`
`In issuing a voluntary recall, Abbott assumed duties to Plaintiff and the Class to
`
`exercise reasonable care in issuing and implementing the recall.
`
`85.
`
`Abbott breached its duties by failing to adequately warn Plaintiff and the Class of
`
`the dangers associated with the use of the Recalled Products by refusing to promptly replace the
`
`Recalled Products.
`
`86.
`
`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 MICHIGAN CONSUMER PROTECTION ACT
`
`(On Behalf of Plaintiff and the Michigan Class)
`
`87.
`
`Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs
`
`as if fully set forth herein.
`
`88.
`
`Plaintiff and Abbott are both “persons” as defined in Mich. Comp. Laws §
`
`445.902(d).
`
`89.
`
`Abbott is engaged in “trade or commerce” as defined in Mich. Comp. Laws §
`
`445.902(g).
`
`90.
`
`The Michigan CFA declares unfair, unconscionable, or deceptive methods, acts, or
`
`practices in the conduct of trade or commerce as unlawful as defined in Mich. Comp. Laws §
`
`445.903.
`
`91.
`
`Abbott’s conduct of manufacturing, producing, and selling Recalled Products as
`
`alleged herein is a violation of the Michigan CFA including but not limited to:
`
`(a) causing a probability of confusion or misunderstanding as to the source,
`sponsorship, approval, or certification of goods or services;
`
`(c) representing that goods or services have sponsorship, approval, characteristics,
`ingredients, uses, benefits, or quantities that they do not have;
`
`
`
`14
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.15 Filed 03/15/22 Page 15 of 18
`
`
`
`
`(d) representing that goods are new if they are deteriorated, altered, reconditioned,
`used, or secondhand;
`
`(e) 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;
`
`(g) advertising or representing goods or services with intent not to dispose of those
`goods or services as advertised or represented;
`
`(n) causing a probability of confusion or of misunderstanding as to the legal rights,
`obligations, or remedies of a party to a transaction;
`
`(p) disclaiming or limiting the implied warranty of merchantability and fitness for
`use, unless a disclaimer is clearly and conspicuously disclosed;
`
`(s) failing to reveal a material fact, the omission of which tends to mislead or
`deceive the consumer, and which fact could not reasonably be known by the
`consumer;
`
`(bb) making a representation of fact or statement of fact material to the transaction
`such that a person reasonably believes the represented or suggested state of affairs
`to be other than it actually is; and
`
`(cc) failing to reveal facts that are material to the transaction in light of
`representations of fact made in a positive manner.
`
`
`Mich. Comp. Laws § 445.903.
`
`Plaintiffs in a class action need not prove individual reliance, but instead may prove
`
`92.
`
`that a “reasonable person would have relied on the representations” of the defendant. Dix v. Am.
`
`Bankers Life Assurance Co., 415 N.W.2d 206, 209 (Mich. 1987); see also Gilkey v. Cent. Clearing
`
`Co., 202 F.R.D. 515 (E.D. Mich 2001) (holding that class members need not show individual
`
`reliance).
`
`93.
`
`A reasonable person would have relied on Abbott’s representations that its Recalled
`
`Products were safe for use and consumption.
`
`
`
`15
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.16 Filed 03/15/22 Page 16 of 18
`
`
`
`94.
`
`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 the Michigan CFA.
`
`95.
`
`Plaintiff’s actual out-of-pocket loss was proximately caused by Abbott’s violations
`
`of the Michigan CFA.
`
`96.
`
`Should Plaintiff prevail in this Action, reasonable attorneys’ fees and costs are to
`
`be awarded pursuant to Mich. Comp. Laws § 445.911(2).
`
`COUNT VI
`
`UNJUST ENRICHMENT
`
`(On Behalf of Plaintiff and the Nationwide Class)
`
`97.
`
`Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs
`
`as if fully set forth herein.
`
`98.
`
`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.
`
`99.
`
`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.
`
`
`
`16
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.17 Filed 03/15/22 Page 17 of 18
`
`
`
`100. Abbott’s retention of the benefit conferred upon it by Plaintiff and the Class would
`
`be unjust and inequitable.
`
`101. 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.
`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`H.
`
`I.
`
`J.
`
`K.
`
`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 Michigan Class, appointing Plaintiff as representative of
`the Michigan Class, and appointing counsel for Plaintiff as Lead Counsel for the
`Michigan Class;
`
`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 the Michigan Consumer Protection Act;
`
`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.
`
`
`
`
`
`17
`
`
`
`

`

`Case 2:22-cv-10550-VAR-EAS ECF No. 1, PageID.18 Filed 03/15/22 Page 18 of 18
`
`
`
`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 15, 2022
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`SOMMERS SCHWARTZ, P.C.
`
`
`
`By: /s/ Jason J. Thompson
`Jason J. Thompson (P47184)
`One Towne Square, 17th Floor
`Southfield, Michigan 48076
`(248) 355-0300
`jthompson@sommerspc.com
`
`Attorneys for Plaintiff
`
`
`
`
`
`18
`
`