While prior infant formula complaints have dealt with allegations that the concoction included ingredients used to make rocket fuel, this class action stems from an accidental contamination with beetles and larvae.

The makers of Similac formula, Abbott, previously recalled millions of contaminated products in September 2010 after discovering the presence of beetle larvae in several of its Similac powdered infant formula units. The plaintiff-mother in the class action sued after her baby began having issues with spitting up after consuming the affected product.

The ability to maintain the suit was questioned because the plaintiff had originally refused to accept a refunded purchase price, but then included the amount in her complaint. Additionally, babies are well known for spitting up for various reasons, thus the issue of causation is somewhat complicated. The additional theories under which she sued included various general “promises” made by probably all formula makers regarding the ability of their product to be well suited to babies. These sorts of claims are generally referred to as puffery, and not necessarily legally actionable.

The particular type of formula the plaintiff used, however, made more concrete statements about the ability to soothe babies’ gastrointenstinal issues, and the judge found that,  ”A fact-finder could conclude that Abbott promised a soothing product, and instead delivered a defective product that caused ‘gastrointestinal discomfort,” and thus did not dismiss the case.

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