In In Re: Recalled Abbott Infant Formula Products Liability Litigation, No. 23-2525 (7th Cir. April 2, 2024), The 7th Circuit held that the District Court did nor err in dismissing for lack of standing plaintiffs’ action, alleging economic harm stemming from as voluntary recall of defendant’s infant formula that plaintiffs claimed exposed them to potential risk of injury due to fact that formula was produced at defendant’s plant under unclean conditions.
The parent plaintiffs had urged the 7th U.S. Circuit to conclude they had legal standing to sue Abbott, arguing that they would not have paid the purchase price for Similac and other Abbott brands if they had known of the safety risks that led to the plant shutdown and a subsequent recall. But U.S. Circuit Judge Michael Brennan said the parents were asserting a “hypothetical or conjectural” injury, having not alleged that the contamination was widespread enough to plausibly affect the infant formula they had actually bought. “When purchasing the infant formula, plaintiffs received what they asked for,” Brennan wrote for the three-judge panel. “At that point, there was no known risk of contamination and no loss of the benefit of the bargain or premium price paid.”
The record showed that defendant announced a voluntary recall of formula and offered full refund to those who possessed formula. Brennan said once the parents learned of the contamination risk, they were told not to use the formula they bought, which Abbott offered to refund. “So, there was not a time when plaintiffs were at a risk of harm,” Brennan wrote. The Court of Appeals observed that plaintiff’s risk-of-harm theory does not support Article III standing, and further observed that plaintiffs’ alleged injuries were hypothetical and conjectural. The 7th Circuit also noted that plaintiffs did not allege that formula they purchased was contaminated or that they were subject to risk of harm in personal or individual way.