Products Liability Law Daily Wrap Up, TOP STORY—BABY PRODUCTS—S.D. N.Y.: Suit blames maker of baby-formula mixers for poor nutrition in children, (Feb 12, 2020)

By Susan Engstrom

A design defect causes the mixing machines to produce watered-down formula, the complaint alleges.

A father filed a putative class-action suit against Baby Brezza Enterprises LLC alleging that his daughter and other children received inadequate nutrition while being fed formula that was mixed by machines marketed as Baby Brezza Formula Pro and Formula Pro Advanced. Demanding a jury trial, the complaint asserts claims for, among other things, strict liability (failure to warn and design defect), negligence, negligent recall, and fraud (Borgese v. Baby Brezza Enterprises LLC, February 11, 2020).

Baby Brezza markets the at-issue machines as automatically mixing the "perfect" amount of baby formula and water. In 2019, however, a father noticed that his daughter had lost weight while being fed formula produced by one of Baby Brezza’s machines and, as a result, required medical attention. According to the father’s complaint, which he brought individually and on behalf of other consumers of the product, the machines routinely mix less formula than required. Consequently, children receive watered-down formula and excessive amounts of water, which, in turn, leads to insufficient nutrition as well as physical and/or mental complications, injuries, and medical expenses. Baby Brezza has failed to notify purchasers of this problem or to recall the defective machines, the complaint maintains.

Strict liability claims. The father alleges that Baby Brezza failed to warn him and the other plaintiffs (and their physicians) about the serious risk of using the mixing machines despite knowing that the products were defective and unreasonably dangerous. The potential risks presented a substantial danger to the plaintiffs when the machines were used or maintained in an intended or foreseeable manner, and ordinary consumers would not have recognized those risks. Moreover, it was foreseeable to the manufacturer that failure to adequately warn about the risks of its products could cause irreparable harm. Baby Brezza’s breach of its duty to warn caused the plaintiffs’ damages, including the cost of the machine and medical expenses.

The father also contends that at the time the machines left the company’s control, they were in a condition not reasonably safe for their intended use, as they were designed and/or manufactured in a manner that permitted insufficient formula to be regularly and routinely mixed. Safer, alternative designs allegedly are available that would have prevented improper mixing, such as internal measuring wheel safeguards, indicator lights, clumping prevention devices, and humidity indicators. According to the complaint, the defective design of the machines was a substantial contributing factor in the plaintiffs’ injuries.

Negligence claims. In addition, Baby Brezza negligently breached its duty to warn consumers of the risks associated with the machines, the complaint alleges, adding that the plaintiffs would not have purchased the product had they known of the design defects. The company also negligently breached its duty to recall the machines, the father contends.

Other claims. The complaint also asserts causes of action for common-law fraud; fraud by concealment; unjust enrichment; breach of the implied warranty of merchantability and express warranty; violations of New York’s consumer fraud statute; and false advertising.

Relief sought. In addition to seeking certification of this case as a class action, the father and the other plaintiffs request: (1) an award of equitable and injunctive relief, including restitution and disgorgement of profits; (2) an award of at least $10 million in compensatory damages; (3) punitive damages; (4) pre- and post-judgment interest; and (5) reasonable attorney fees and costs.

The case is No. 1:20-cv-1180.

Attorneys: Joseph Warren Belluck (Belluck & Fox, LLP) for Jon Borgese.

Companies: Baby Brezza Enterprises LLC; The Betesh Group; The Betesh Group Holding Corp., Inc.

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