Hobbs et al v. Mead Johnson & Company, LLC et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NIKOLETTE HOBBS, individually and on 	* 	CIVIL ACTION NO. 25-224
behalf of her deceased child, NOAH
PATRICK HOBBS 	* 	JUDGE ELDON E. FALLON
VERSUS 	* 	MAGISTRATE JUDGE
KAREN WELLS ROBY
PEDIATRIC KID-MED, LLC, DERGAL FAY 	*
BURBANK, M.D., MPH, RAJESH K.
SHARAMA, M.D., F.A.A.P., MEAD JOHNSON *
& COMPANY, LLC, MEAD JOHNSON
NUTRITION COMPANY, AND RECKITT 	*
BENCKISER GROUP, LLC
* 	* 	* 	* 	* 	* 	* 	*
ORDER & REASONS
Before the Court is a motion to dismiss the amended complaint for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure filed by Defendants Mead
Johnson & Company, LLC, Mead Johnson Nutrition Company, and Reckitt Benckiser LLC
(collectively “Defendants”). R. Doc. 29. Plaintiff Nikolette Hobbs, individually and on behalf of
her deceased child Noah Patrick Hobbs, opposed the motion. R. Doc. 33. Defendants replied. R.
Doc. 34. Considering the record, briefing, and applicable law, the Court now rules as follows.
I. 	BACKGROUND
This products liability case arises from the death of Plaintiff’s infant son. The amended
complaint details that Plaintiff’s son, Noah, was born prematurely on September 13, 2023, with a
low birth weight. R. Doc. 25 at 10. To increase his weight, he was fed breast milk fortified with
infant formula while in the neonatal intensive care unit (“NICU”) at Ochsner Medical Center-
Kenner. Id. Upon discharge, the NICU referred Noah to a local pediatric treatment office for
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follow-up care, including but not limited to treatment related to his consumption of infant formula.
Id.
Starting around October 2, 2023, Noah visited the pediatric office and was prescribed an
infant formula because the doctors were concerned about his weight. Id. Over the following few
weeks, his treating physicians recommended and/or prescribed him several infant formulas, some
of which his stomach could not tolerate. Id. at 10–11. On or about October 23, 2023, a doctor
changed the formula for a fourth time to Nutramigen with Probiotic LGG Hypoallergenic Infant
Formula Powder with Iron (the “Subject Formula”), as well as diagnosed Noah with thrush and
prescribed him thrush medication. Id. at 11. The thrush medication allegedly burned his tongue, so
Plaintiff stopped administering Noah the medication but continued to bottle-feed him with breast
milk fortified by the Subject Formula. Id. Three days later, Noah began vomiting, was taken by
ambulance to the emergency room, and eventually put on a ventilator. Id. at 11–12. Plaintiff
decided to cease care, and Noah died on October 26, 2023. Id. at 12. Plaintiff asserts that Noah’s
death is the direct result of his consumption of the Subject Formula. Id.
Plaintiff then brought this suit against Defendants in their capacity as the alleged
manufacturers of the Subject Formula. See generally id. In the amended complaint, Plaintiff brings
four claims against Defendants, pursuing each of the four liability theories provided for in the
Louisiana Products Liability Act (“LPLA”): design defect, inadequate warning, breach of express
warranty, and construction defect. Id. at 12–23. She prays for all general and compensatory
damages, special damages, wrongful death damages, and for costs. Id. at 23–24.
II. 	PRESENT MOTION
Defendants ask the Court to dismiss each of Plaintiff’s four LPLA claims. R. Doc. 29.
Overall, they argue that Plaintiff primarily asserts legal conclusions instead of pleading facts, and
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the facts that are pleaded do not meet the standards set forth in Rule 8(a)(2) of the Federal Rules
of Civil Procedure and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008). See id.
As to the individual theories, first, Defendants argue that Plaintiff has not pleaded the
existence of an express warranty beyond the warranty that the Subject Formula was safe. Id. at 4–
6. This is notable, they argue, because representations that a product is safe for its intended use is
not enough to establish the existence of an express warranty under present case law. Id. at 4–6.
Defendants also take the position that the amended complaint establishes that Plaintiff relied on
her physician’s representations of the Subject Formula, not the Subject Formula’s express
warranties herself. Id. at 6. As to Plaintiff’s claim of a design defect, Defendants press that Plaintiff
did not allege specific facts as to the defective aspects of the formula that allegedly caused her
son’s fatal illness. Id. at 6–8. And even if Plaintiff did, her design defect claim cannot survive
because she did not put forth any facts to support that an alternative design exists, nor address the
burden-outweighing-the-harm analysis. Id. at 8–10.
The third theory of failure to warn, say Defendants, is also inadequately pleaded. They take
the position that Plaintiff needed to plead details as to what the warning should have been, as well
as plead that the warning could have prevented her son’s injuries, in order to state a claim. Id. at
10–11. Finally, Defendants contend that Plaintiff’s amended complaint does not contain enough
factual support for a construction defect claim because Plaintiff asserts no allegations as to how
the Subject Formula deviated from the manufacturer’s standards. Id. at 11–14. Instead, Defendants
claim, the amended complaint overall takes the position that the Subject Formula cannot be
manufactured safely because it is cow-milk based, so Plaintiff “cannot demonstrate that
Defendants ha[ve] a safe product when constructed according to its specifications.” Id. at 15.
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Plaintiff opposed the motion. R. Doc. 33. She generally submits that the amended
complaint contains well-pleaded allegations to support each element of the four LPLA liability
theories. Id. Plaintiff consistently stressed that her pleading passes the plausibility threshold to
allow all four of her claims to survive. Id. Defendants replied, largely reiterating the points raised
in their motion. R. Doc. 34.
III. 	LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for failure
to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2008)). “Factual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 556. A claim is plausible on its face when the
plaintiff has pled facts that allow the court to “draw a reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 570. A court must liberally construe the complaint in light most
favorable to the plaintiff, accept the plaintiff’s allegations as true, and draw all reasonable inferences
in favor of the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). However, courts “do not
accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.” Arias-
Benn v. State Farm Fire & Cas. Co., 495 F.3d 228, 230 (5th Cir. 2007) (quoting Plotkin v. IP Axess
Inc., 407 F.3d 690, 696 (5th Cir. 2005)).
Because the Court is sitting in diversity, it is bound by the substantive law of Louisiana, the
forum state. Learmonth v. Sears, Roebuck & Co., 710 F.3d 249, 258 (5th Cir. 2013). The Louisiana
Products Liability Act provides the “exclusive theories of liability for manufacturers for damage caused
by their products.” La. R.S. § 9:2800.52. Manufacturers are liable for “damage proximately caused by
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a characteristic of a product that renders it unreasonably dangerous when such damage arose from a
reasonably anticipated use of the product.” Id. at § 9:2800.54A. A product “is unreasonably dangerous”
under the LPLA “if and only if” it is unreasonably dangerous in any of the following four ways: (1)
“in construction or composition,” (2) “in design,” (3) because “an adequate warning . . . has not been
provided,” and (4) because the product “does not conform to [a manufacturer’s] express warranty.” Id.
at 9:2800.54B. An unreasonably dangerous condition cannot be presumed just because an injury
occurred, and the plaintiff bears the burden of proving each element of the four LPLA theories. Baudin
v. AstraZeneca Pharm. LP, 413 F. Supp. 3d 498, 503 (M.D. La. 2019).
IV. 	ANALYSIS
Plaintiff asserts that the Subject Formula was unreasonably dangerous under all four of the
LPLA’s theories of liability. R. Doc. 25. Defendants move to dismiss all four claims, pressing that
Plaintiff failed to state claims for construction defect, design defect, failure to warn, and breach of
express warranty. R. Doc. 33. The Court finds that Plaintiff’s claims can survive as to design defect,
failure to warn, and breach of express warranty.
A. Construction/Manufacturing Defect
To establish a manufacturing defect claim under the LPLA, plaintiffs must show that “at
the time the product left [the] manufacturer’s control, the product deviated in a material way from
the manufacturer’s specifications or performance standards for the product or from otherwise
identical products manufactured by the same manufacturer.” La. R.S. § 9:2800.55. Thus, to
establish this claim, Plaintiff must plausibly plead that (1) the defendant is the manufacturer of the
product, (2) the product proximately caused plaintiff’s damages, (3) the damaging characteristic
rendered the product unreasonably dangerous in its construction or composition, and (4) the
damages arose from a reasonably anticipated use of the product. Lewis v. Baxter Int’l, Inc., No.
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16-16391, 2017 WL 661324, at *3 (E.D. La. Feb. 17, 2017). “This is a narrow and demanding
test” because the plaintiff must show “that the particular product used by the [relevant individual]
deviated from its intended design.” Guidry v. Janssen Pharms., 206 F. Supp. 3d 1187, 1197–98
(E.D. La. 2016).
Plaintiff stated that Defendants are the manufacturers of the Subject Formula and that the
Subject Formula caused her son’s death. R. Doc. 25 at 12. The Court finds, however, that Plaintiff
has not pleaded facts to demonstrate that the Subject Formula her son consumed deviated from the
manufacturer’s 	specifications. 	Plaintiff’s 	amended 	complaint 	states 	that 	“Defendants
manufactured the Subject Baby Formula to help support digestive health in infants. The Subject
Baby Formula deviated from that standard.” R. Doc. 25 at 20. It also states that “[p]rior to Noah’s
birth, Defendants were aware or should have been aware that its Cow’s Milk Based Products
(including the Subject Infant Formula) were not safe for use, as they were used, with nutrition or
nutritional support in preterm infants, yet took no steps to prevent the use of these products in such
situations.” Id. at 21. Though these allegations fall under the “construction defect” subsection of
the amended complaint, these statements strike more at the heart of a design defect claim than a
manufacturing defect claim. The Court’s thorough search of the amended complaint holistically
did not yield any factual statements rendering Plaintiff’s claim of a construction defect plausible,
not just possible. See Iqbal, 556 U.S. at 678.
Courts consistently require a plaintiff to allege, at minimum, that a breakdown of some sort
occurred at a point during the manufacturing process, causing the product used by the plaintiff to
be unfit for its anticipated use. For example, in Flagg v. Stryker Corp., the Fifth Circuit found that
a plaintiff adequately pleaded a manufacturing defect claim when the complaint explained that
(1) the shape and size of plaintiff’s toe implant led to complications in its removal, supporting the
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idea that plaintiff’s toe implant was not manufactured up to the defendant’s usual standards, and
(2) the composition of the metal in the toe implant negatively influenced the performance of the
implant, supporting the idea that the metal used was constructed or composed in a way that
deviated from the manufacturer’s standards. 647 F. App’x 314, 318 (5th Cir. 2016). These
allegations in Flagg discuss the specific product that the plaintiff used and how that specific toe
implant could have deviated from the otherwise-safe manufacturing standards. This reinforces the
idea that the particular product used by the plaintiff must have contained deviations from the
manufacturer’s usual and presumably nondefective product. See Guidry, 206 F. Supp. 3d at 1197–
98.
Here, Plaintiff does not put forth any allegations pertaining to, for example, the specific
cannisters of the Subject Formula that her son consumed, and why the contents of those specific
cannisters or that specific product deviated from the manufacturer’s usual standards. Instead,
Plaintiff pleads that “the use of [Defendants’] Cow’s Milk-Based Products with preterm infants
[is] unreasonably dangerous in that its Cow’s Milk-Based Products significantly increase[] the risk
of [necrotizing enterocolitis] and death.” R. Doc. 25 at 21. She contends that “[t]he products did
not perform safely as an ordinary customer would expect when used in the intended or reasonably
foreseeable manner, such that the use of Cow’s Milk-Based Products as nutrition or nutritional
supplements in preterm infants significantly increased the risk of [necrotizing enterocolitis] and
death.” Id. at 22.
Applying the Twombly standard to these statements and the amended complaint as a whole,
Plaintiff’s factual allegations fail to support her manufacturing defect claim because the allegations
strike more at a design defect claim rather than a manufacturing or composition defect claim.
Plaintiff asserts facts as to the general safety, or lack thereof, of cow’s milk-based formulas—not
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the safety of the specific product her son consumed which could otherwise be manufactured safely.
Plaintiff’s allegations therefore do not state a claim for relief under Rule 8(a)(2) and Rule 12(b)(6)
for a manufacturing defect claim under the LPLA.
B. Design Defect
A design defect claim under the LPLA requires a plaintiff to sufficiently plead that
“(1) [t]here existed an alternative design for the product that was capable of preventing the
claimant’s damage; and (2) [t]he likelihood that the product’s design would cause the claimant’s
damage . . . outweighed the burden on the manufacturer of adopting such an alternative design.”
La. R.S. § 9:2800.56. Conclusory assertions that an alternative design exists will not suffice to
meet plaintiff’s burden; plaintiff must identify an alternative design with some level of specificity,
though courts are mindful that the plaintiff does not have the benefit of discovery at this stage.
Baudin, 413 F. Supp. 3d at 507 (discussing cases wherein courts have found that “a complaint
sufficiently pleads a design defect claim by alleging an alternative design in general terms,
including the general characteristics of the alternative design”).
Defendants press that Plaintiff failed to “allege with enough specificity that an alternative
design existed, [so] it is [also] impossible for Plaintiff to plead that the gravity of the damage of
the Formula as currently designed and the burden and effects of adopting an alternative design.”
R. Doc. 29-1 at 9. The Court disagrees. Plaintiff’s allegations as to design defect meet the Twombly
plausibility standard, a “standard [that] ‘simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence of’ the necessary claims or elements.’” Flagg, 647
F. App’x at 316 (quoting In re S. Scrap Material Co., 541 F.3d 584, 587 (5th Cir. 2008)). Plaintiff
pleaded facts that give rise to the inference that alternative designs exist.
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The amended complaint describes academic studies spanning decades which, according to
Plaintiff, describe that premature infants like Noah who consume a near-exclusive human-milk
based diet are significantly less likely than premature infants who consume a cow’s milk-based
diet to develop deadly diseases, such as necrotizing enterocolitis (“NEC”). R. Doc. 25 at 2–9. For
example, some allegations contend that “advances in science have created alternative fortifiers that
are derived from human milk and non-cow’s milk-based products.” Id. at 3. The studies also
consistently determine, according to Plaintiff, that a higher risk of NEC is consistently connected
to premature infants consuming cow’s milk-based formula as opposed to premature infants
consuming human milk-based products and/or breastfeeding. E.g., id. at 3–6. The foregoing
allegations, taken together with other facts in the amended complaint, demonstrate a plausible
claim that an alternative design of the Subject Formula existed, and if this alternative design was,
for example, human-milk based, it could have prevented Noah’s death.
But to successfully plead a design defect claim, Plaintiff must also submit enough facts to
allow this Court to draw a reasonable inference that the burden on Defendants to adopt the
alternative design is plausibly lower than the burden of producing a product that studies have
shown increases the risk of causing NEC in premature infants. The Court finds that there are
sufficient facts to raise Plaintiff’s right to relief above a speculative relief on the burden-balancing
prong of her design defect claim.
In the amended complaint, Plaintiff describes a scientific study which “noted that cow’s
milk-based preterm formulas provided consistent calories and were less expensive than human
milk-based products, the cow’s milk-based products significantly increase the risk of NEC and
death.” R. Doc. 25 at 6–7. The study then described the health care costs associated with NEC, and
a 2017 study described that as of 2011-2012, the cost of treating NEC could be close to $200,000,
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and goes up to over $300,000 if the infant needs surgical intervention. Id. at 7. These facts may
not strike at the heart of the cost-balancing analysis of actually manufacturing the drug, but it does
demonstrate that Plaintiff is engaging in the cost-benefit analysis at the pleading stage. So, while
Plaintiff omits specific reference to the danger of the damage outweighing the burden of adopting
the alternative design, “such an omission is not so fatal as to give rise to dismissal under 12(b)(6)
at this stage of the litigation.” Donald v. AstraZeneca Pharms., LP, No. 15-4591, 2017 WL
1079186, at *3 (E.D. La. Mar. 22, 2017). Plaintiff is entitled to proceed to discovery on her design
defect claim.
C. Failure to Warn
Plaintiff claims that Defendants failed “to properly warn and provide adequate warnings or
instructions about the dangers and risks associated with the use of Cow’s Milk-Based Products
with preterm infants, specifically including but not limited to the risk of NEC and death.” R. Doc.
25 at 15. “To maintain a failure-to-warn claim, a plaintiff must demonstrate that ‘the product
possessed a characteristic that may cause damage and the manufacturer failed to use reasonable
care to provide an adequate warning of such characteristic and its danger to users and handlers of
the product.’” Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 261 (5th Cir. 2002) (quoting La. R.S.
§ 9:2800.57). An “adequate warning” is “a warning or instruction that would lead an ordinary
reasonable user or handler of a product to contemplate the danger in using or handling the product
and either to decline to use or handle the product or, if possible, to use or handle the product in
such a manner as to avoid the danger for which the claim is made.” La. R.S. § 9:2800.53(9).
Notably, a manufacturer is liable for inadequate warnings “only if the defect proximately
caused the plaintiff’s injury.” Baudin, 413 F. Supp. 3d at 507. Plaintiffs bear the burden of proving
that but-for the inadequate warning, the underlying injury would not have occurred. Id. But this
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failure-to-warn “does not extend to dangers that are or should be obvious or common knowledge
to the ordinary user or handler of the product.” Colbert v. Sonic Rests., Inc., 741 F. Supp. 2d 764,
770 (W.D. La. 2010) (citing La. R.S. § 9:2800.57B).
Defendants contend that Plaintiff only recites conclusory statements alleging the presence
of an inadequate warning, but without any factual support beyond the presence of “hidden dangers
and risks” in the Subject Formula. R. Doc. 29-1 at 10–11. The Court finds that Plaintiff pleaded
enough to sustain a failure-to-warn claim under the LPLA. Specifically, the amended complaint
includes medical research showing an alleged correlation between cow’s milk-based products and
an increased risk of NEC and death in premature infants. R. Doc. 25 at 2–9. This supplies sufficient
facts to plausibly show a correlation between the Subject Formula and aforementioned risks,
satisfying the damage-causing characteristic element, at least at the motion to dismiss stage.
Plaintiff also pleaded enough to make a plausible claim that Defendants failed to use
reasonable care to provide an adequate warning of the risk of NEC and death in premature infants
who consume cow’s milk-based products. Stahl, 283 F.3d at 261. The amended complaint states
that “[d]espite the knowledge of significant health risks posed to preterm infants ingesting the
Cow’s Milk-Based Products, including the significant risk of NEC and death, Defendants did not
warn parents or medical providers of [these risks] . . . nor . . . provide[] any instruction on how to
properly use its Cow’s Milk-Based Products so as to lower the risk [of] or avoid NEC or death.”
R. Doc. 25 at 9. It further specifies that Defendants “did not provide any warning in their labeling,
websites, or marketing that warns that their Cow’s Milk-Based Products exponentially increase the
risk of NEC and death in preterm infants” and “that human breast milk, donor milk, and human
breast milk-based formulas and fortifiers are much safer for preterm babies than their Cow’s Milk-
Based Products.” Id. At the motion to dismiss stage, the foregoing states a plausible claim for
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relief. Cf. Bjorklund v. Novo Nordisk A/S, 705 F. Supp. 3d 636, 641 (W.D. La. 2023) (quoting
Baudin, 413 F. Supp. 3d at 510) (“At the pleading stage, a plaintiff is not required ‘to detail what
an adequate warning would be and how an adequate warning would have caused [his] treating
physician to act differently.’”).
D. Breach of Express Warranty
Defendants take the position that the amended complaint only contains allegations that
Defendants held the Subject Formula out as safe or effective, and that under Louisiana law, merely
stating that a product is safe or effective does not amount to an express warranty. R. Doc. 29-1 at
4. An express warranty is defined under Louisiana law as “a representation, statement of alleged
fact or promise about a product or its nature, material or workmanship that represents, affirms or
promises that the product or its nature, material or workmanship possesses specified characteristics
or qualities or will meet a specified level of performance.” La. R.S. § 9:2800.53(6). Notably,
“‘Express Warranty’ does not mean a general opinion about or general praise of a product.” Id.
The LPLA provides that “[a] product is unreasonably dangerous when it does not conform
to an express warranty made at any time by the manufacturer about the product if the express
warranty has induced the claimant or another person or entity to use the product and the claimant’s
damage was proximately caused because the express warranty was not true.” La. R.S. § 9:2800.58.
Therefore, to state a claim for breach of express warranty, a plaintiff must plead that “(1) the
manufacturer made an express warranty regarding the product, (2) the plaintiff was induced to use
the product because of that warranty, (3) the product failed to conform to that express warranty,
and (4) the plaintiff’s damage was proximately caused because the express warranty was untrue.”
Caboni v. Gen. Motors Corp., 278 F.3d 448, 452 (5th Cir. 2002). A plaintiff is not required to “point
to specific language offered by a manufacturer,” but must still “specify the warranty in question”
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to state a claim for relief. Fuller v. Eisai Inc., 513 F. Supp. 3d 710, 722 (E.D. La. 2021) (internal
quotations omitted).
Defendants construe the amended complaint to only contain allegations that they marketed
the Subject Formula as safe for consumption, and this kind of marketing does not rise to the level
of an express warranty. R. Doc. 29-1 at 4–5. They also contend that the amended complaint
contains no explanation as to how the Plaintiff herself was induced by the express warranty to
purchase the Subject Formula because the amended complaint states that Plaintiff relied on her
son’s physicians when purchasing the Subject Formula. Id. at 5. The Court finds that Plaintiff’s
breach of express warranty claim survives the motion to dismiss stage.
As to the express warranty itself, the amended complaint states that “the Defendants began
heavily promoting ‘human milk fortifiers,’ a name which misleadingly suggests that the product is
derived from human milk, instead of being derived from Cow’s Milk.” R. Doc. 25 at 8. This is
significant, claims Plaintiff, because this new marketing tactic occurred after “a shift in the medical
community towards an exclusive human-based diet for preterm infants.” Id. Plaintiff contends that
this marketing, as well as similar “competing, systematic, powerful, and misleading marketing
campaigns” were pursued by Defendants despite them “knowing the significant health risk[s]
posed by ingesting [cow’s milk-based] products, especially to preterm, low-weight infants like
Noah.” Id. at 8–9. Plaintiff thus submits that Defendants created an express warranty by holding
cow’s milk-based products out as safe and “equal, or even superior, substitutes to breastmilk” to
persuade parents and physicians to purchase the Subject Formula. Id. at 8. Altogether, and
construing the allegations in a light most favorable to Plaintiff, the Court finds that she has pleaded
enough facts to allow the Court to infer that Defendants engaged in an elaborate marketing scheme
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that the Subject Formula is safe for premature infants despite Defendants’ alleged knowledge that
cow’s milk-based products are not safe for premature infants. Id. at 8–9.
As to Plaintiff’s inducement to use the product because of the aforementioned express
warranty, Plaintiff herself does not necessarily need to be the specific party induced. The LPLA
provides that the express warranty can induce “the claimant or another person or entity to use the
product.” La. R.S. § 9:2800.58. At least one court in this circuit has found a viable breach of
express warranty claim when the plaintiff alleged that the manufacturer engaged in an aggressive
and misleading marketing campaign to induce doctors to use the product and the plaintiff’s surgeon
used the product in the plaintiff’s surgery. Boutte v. Stryker Biotech, LLC, 67 F. Supp. 3d 732, 738–
39 (5th Cir. 2014).
Here, Defendants are correct that Plaintiff pleaded that she used the Subject Formula
because it “was given to her” by a treating physician. R. Doc. 25 at 11. However, she also submits
that “Defendants developed relationships, which included incentives and financial gain to
healthcare providers and facilities for using their Cow’s Milk-Based Products” and that “if
healthcare providers and health care staff had been properly instructed and warned of the risks
associated with the use of Cow’s Milk-Based Products with preterm infants, they would not have
used such a dangerous product.” Id. at 16. Construing these allegations in a light most favorable
to Plaintiff, she has pleaded enough to allow this Court to infer that her physician may not have
recommended that Plaintiff feed her premature infant son the Subject Formula without the
Defendants’ representations in their marketing campaigns that cow’s milk-based products are safe
for premature infants like Noah. Plaintiff has stated a plausible breach of express warranty claim
pursuant to Rule 8(a)(2) and Twombly.
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V. 	CONCLUSION
For the foregoing reasons,
IT IS ORDERED that the motion to dismiss the amended complaint for failure to state a
claim filed by Defendants is DENIED.
New Orleans, Louisiana, this 23rd day of December, 2025.
THE HONORABLE ELDON E. FALLON
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