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The Secuirty National Bank of Sioux City v. Abbott Laboratories

United States District Court, Eighth Circuit

June 3, 2013

THE SECURITY NATIONAL BANK OF SIOUX CITY, IOWA, as Conservator for J.M.K, a Minor, Plaintiff,
v.
ABBOTT LABORATORIES, Defendant.

MEMORANDUM OPINION AND ORDER REGARDING THE DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT, TO EXCLUDE PLAINTIFF’S CAUSATION EXPERTS, AND TO STRIKE AFFIDAVIT [1]

MARK W. BENNETT, U.S. DISTRICT COURT JUDGE

TABLE OF CONTENTS

I. INTRODUCTION ......................................................................................... 3

A. Factual Background ........................................................................................3

B. Procedural Background ................................................................................. .5

II. LEGAL ANALYSIS ..................................................................................... 8

A. The Challenge To The Affidavit ...................................................................... 8

1. Arguments of the parties ................................................................................ 8

2. Analysis ........................................................................................................ 9

B. The Daubert Challenge To The Conservator’s Causation Experts..................13

1. Arguments of the parties ............................................................................... 13

2. Analysis ........................................................................................................16

C. Abbott’s Motion For Summary Judgment .................................................... 20

1. Standards for summary judgment .................................................................. 21

2. The challenge to the causation element for all claims ......................................22

3. The challenge to the warranty claims ..............................................................23

a. Arguments of the parties ...............................................................................23

b. Analysis ........................................................................................................24

4. The challenge to the fraud claim .....................................................................25

a. Arguments of the parties ................................................................................25

b. Analysis ........................................................................................................26

5. The challenge to the warning defect claim .......................................................29

a. Arguments of the parties ................................................................................ 29

b. Analysis ........................................................................................................29

III. CONCLUSION .........................................................................................35

In this action, plaintiff Security National Bank, as Conservator for a child, JMK, who suffered severe brain damage from bacterial meningitis as a neonate, asserts product defect, breach of warranty, and fraud claims against Abbott Laboratories, the manufacturer of the powdered infant formula (PIF) that was allegedly the source of the bacteria that caused JMK’s injuries. Abbott seeks summary judgment on the ground that the Conservator cannot generate genuine issues of material fact on key elements of its claims, including whether Abbott’s PIF was even a source of the bacteria that infected JMK. In addition, Abbott seeks to exclude evidence from the Conservator’s causation experts pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and to strike a “sham” affidavit by JMK’s mother, which Abbott argues contradicts her prior deposition testimony about the onset and progression of JMK’s symptoms of infection and, consequently, is submitted for the sole purpose of creating a fact issue where none exists. I must determine whether or not I can consider the challenged affidavit and the challenged experts’ opinions, then determine whether or not the Conservator has generated genuine issues of material fact on the challenged elements of its claims in light of admissible evidence.

I. INTRODUCTION

A. Factual Background

As general background, [2] the undisputed record shows that JMK, a baby girl, was the first of non-identical twins born to Megan Surber and Troy Kunkel on April 14, 2008, at St. Luke’s Hospital in Sioux City, Iowa. JMK and her twin brother were electively delivered by scheduled Caesarean section, without complications, prior to their estimated due date of May 5, 2008. JMK and her mother remained at the hospital until the morning of April 17, 2008; her twin brother remained in the hospital until April 24, 2008. The parties dispute the precise number and identity of friends and relatives, besides treating physicians, hospital nurses, and hospital staff members, who had physical contact with JMK during her stay at the hospital. The parties agree, however, that while JMK remained at the hospital, she was fed only ready-to-feed (RTF) liquid formula from 2-ounce, single-feeding bottles, with a new bottle used for each feeding, and that she was only fed by Ms. Surber or the nurses.

At the time that JMK and her mother were discharged from the hospital on April 17, 2008, Ms. Surber received a “gift bag” containing several small bottles of Similac NeoSure RTF liquid formula, one larger bottle of Similac NeoSure RTF liquid formula, and a 12.8-ounce container of Similac NeoSure PIF, all made by Abbott. The parties dispute whether the bag also contained other information about Similac formulas, and Abbott denies that it ever assembled such “gift bags” or that it provided the Similac in the gift bag in return for any monetary or other consideration from the hospital.

After JMK’s discharge from the hospital, Ms. Surber took JMK to the family’s residence in Sioux City, Iowa, where JMK remained until April 24, 2008. The parties again dispute the number and identity of family members and other individuals with whom JMK had physical contact during her first week at home. During JMK’s first week at home, Ms. Surber only fed JMK the formula that Ms. Surber had received upon her discharge from the hospital.[3] Ms. Surber was the only person to feed JMK. Ms. Surber first fed JMK with single-use bottles of RTF liquid formula, then with RTF liquid formula from the larger bottle, which was refrigerated after opening, and only then with PIF, beginning with the evening feeding about 9:00 p.m. on April 23, 2008. The parties dispute whether JMK was already showing symptoms of an infection that evening.

JMK also received PIF feedings at midnight, 4:00 a.m., and 8:30 a.m. on April 24, 2008. At the 8:30 a.m. feeding, JMK was not feeding well and cried throughout the rest of the day. At some point on the morning of April 24, 2008, Ms. Surber took JMK’s temperature, which was less than 100 degrees. JMK continued to be fussy, cry, and refuse to eat. When Ms. Surber took JMK’s temperature again in the afternoon, it was slightly elevated, so Ms. Surber called JMK’s doctor. Ms. Surber took JMK to the pediatrician’s office, but was redirected to St. Luke’s Hospital, apparently before JMK was examined. JMK was admitted to the hospital shortly after 6:00 p.m. on April 24, 2008. JMK was later transferred to Children’s Hospital in Omaha, Nebraska, on April 26, 2008. The parties agree that JMK was diagnosed with meningitis from Enterobacter sakazakii, a Cronobacter, usually referred to in shortened form as E. sak or C. sak, but dispute whether the diagnosis was first made at St. Luke’s Hospital or Children’s Hospital. The Conservator contends that Abbott’s PIF was the source of the C. sak that infected JMK.

B. Procedural Background

In a Second Amended Complaint (docket no. 46), filed June 27, 2011, the Conservator asserted seven causes of action against Abbott: In Count 1, a manufacturing defect claim, premised on the allegation that the presence of C. sak in Abbott’s PIF was a departure from the intended design of the PIF; in Count 2, a design defect claim, premised on allegations that biocidal treatment of the PIF or distribution of only liquid formula are plausible, reasonable alternative designs to Abbott’s PIF;[4] in Count 3, a warning defect claim, premised on allegations that Abbott’s warning label on its PIF is inadequate in such a manner as to make its PIF not reasonably safe; in Count 4, a claim of breach of express warranties; in Count 5, a claim of breach of implied warranty of fitness for a particular purpose; in Count 6, a claim of breach of implied warranty of merchantability; and in Count 7, a claim of fraud. In his February 1, 2012, ruling on Abbott’s Motion To Dismiss, however, Senior District Judge Donald E. O’Brien, to whom this case was originally assigned, dismissed the Conservator’s claim of breach of the implied warranty of fitness for a particular purpose in Count 5. See Memorandum Opinion And Order (docket no. 64) at 52-53 & 62, Security Nat’l Bank of Sioux City, Iowa v. Abbott Labs., 2012 WL 327863, *18 & *21 (N.D. Iowa Feb. 1, 2012). A jury trial in this matter is set to begin on September 3, 2013.

On March 20, 2013, Abbott filed its Motion For Summary Judgment (docket no. 86), seeking summary judgment on all of the Conservator’s remaining claims, with a request for oral arguments, and its Motion To Exclude Or Limit Plaintiff’s Proposed Expert Testimony On Medical And Scientific Causation (Abbott’s Daubert Motion) (docket no. 87). On May 3, 2013, Abbott filed its Motion To Strike Megan Surber’s September 19, 2012, Affidavit (docket no. 99). The Conservator duly resisted each of these motions, and Abbott filed replies in further support of them. On May 14, 2013, the Conservator filed a Request For Oral Argument (docket no. 100), seeking oral arguments on Abbott’s Motion For Summary Judgment and Abbott’s Daubert Motion.

This case was reassigned to me on May 21, 2013. See Order (docket no. 102). By Order (docket no. 104), filed May 25, 2013, I requested information from the parties concerning Abbott’s Daubert Motion, including, inter alia, whether the parties were requesting an evidentiary hearing or only oral arguments on that motion. In their e-mail responses to my judicial assistant, both parties indicated that they were only requesting oral arguments, not an evidentiary hearing, on Abbott’s Daubert Motion, but they requested that the oral arguments be “live.”[5]

I have decided that it is unnecessary to hear oral arguments on any of the pending motions. First, I find it unnecessary to impose upon the parties the expense of appearing for “live” oral arguments. Second, where the parties do not want an evidentiary hearing on a Daubert motion, I do not find that oral arguments are likely to be helpful, at least not where, as here, the parties’ positions are well-briefed. An evidentiary hearing is not required prior to a Daubert determination on expert evidence; rather, what is required is that the parties “have an adequate opportunity to be heard” before the court makes its decision. Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 761 n.3 (8th Cir. 2003). The parties’ written submissions have provided them with such “an adequate opportunity to be heard” on Abbott’s Daubert Motion. Third, because the parties’ briefing on Abbott’s other pending motions is thorough, I find it unnecessary to hear oral arguments on those motions, either. Therefore, Abbott’s request for oral arguments on its Motion For Summary Judgment (docket no. 86) is denied; the Conservator’s May 14, 2013, Request For Oral Argument (docket no. 100), seeking oral arguments on Abbott’s Motion For Summary Judgment and Abbott’s Daubert Motion, is denied; and I will resolve Abbott’s pending motions on the parties’ written submissions.

II. LEGAL ANALYSIS

I conclude that Abbott’s motions should be considered in the reverse order from their filing. This course is appropriate, because the second and third motions go to the evidence that I may properly ...


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