Abbott Formula and ‘Absurd’ Loophole

Chicago, ILIn an attempt to keep Similac baby formula lawsuits in federal rather than state court, Abbott tried to use a legal loophole known as “snap removal”, but a federal judge rejected it as “absurd” and kicked the four lawsuits back to state court. The plaintiffs claim that Abbott’s Similac PM 60/40 formula caused a deadly illness in premature infants.

Chief Judge Rebecca R. Pallmeyer of the Northern District of Illinois granted the four remand motions brought by plaintiffs who claim Abbott's infant formula caused newborn babies to develop the deadly intestinal disease necrotizing enterocolitis, finding that the company took advantage of an "absurd" loophole to remove the cases to federal court just because it hadn't been served yet, reported Law360.

Earlier this year, plaintiffs filed a lawsuit against the medical company in Cook County Circuit Court, but that very same day Abbott removed the cases to federal court before being served, arguing that, "Because the home-state defendant was not 'properly ... served,' the case is removable.” But Judge Pallmeyer rejected it as "absurd," and sent four lawsuits back to Illinois state court where they were first filed. She also said that the "properly joined and served" language was intended to stop gamesmanship by plaintiffs, who might otherwise name a defendant in a lawsuit with no intention of serving it in order to bring it in a particular state court, reported Reuters.

An attorney for the plaintiffs told Law360 that they were "happy to see that the court viewed Abbott's interpretation of the statute as absurd as we did."

The MDL is In Re: Abbott Laboratories et al. Preterm Infant Nutrition Products Liability Litigation, case number 3026, in the U.S. District Court for the Northern District of Illinois. The master docket is Hall v. Abbott Laboratories, case number 1:22-cv-00071, in the U.S. District Court for the Northern District of Illinois.

Judge  Pallmeyer is presiding over multidistrict litigation, which includes 89 lawsuits as of June 15, according to Reuters. Abbott is also facing similar lawsuits in state court. The lawsuits allege that the medical company’s Similac formula caused premature infants to become sick or die from a condition called necrotizing enterocolitis, in which intestinal tissue dies. Illinois-based Abbott denies the allegations and says that its products increase the babies' chance of survival. The federal MDL, created in April, included 89 lawsuits as of June 15, according to Reuters. Abbott is also facing similar lawsuits in state court.

Snap Removal

In a snap removal, a defendant removes a case as soon as it is filed on the state court docket, before the plaintiff has a chance to serve it. According to one school of law, where snap removal is permitted, “defendants, both in-state and outsiders, are allowed to select their preferred forum an outcome in derogation of the history, purpose, and logic of permitting removal. This clever strategy of defense counsel is facilitated and accelerated by electronic docket monitoring and sometimes (as in the Third Circuit case) attorney trickery amounting to deceit.”