Jacobs et al v. Abbott Laboratories, Inc. et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
JUDY NICOLE JACOBS, et al.,
Plaintiffs.
V.
ABBOTT LABORATORIES, INC., et
al.,
Defendants.
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CIVIL ACTION NO. 3:23-cv-00132
OPINION AND ORDER
This product liability case was referred to me for all pretrial purposes on
February 10, 2026. See Dkt. 154. Plaintiffs allege that, in September 2020, their
infant 	child 	consumed 	formula 	contaminated 	with 	a 	bacterium 	known 	as
Cronobacter sakazakii, resulting in severe and debilitating injuries. The formula
that 	Plaintiff’s 	child 	consumed 	was 	manufactured 	by 	Defendant 	Abbott
Laboratories, Inc. d/b/a Abbott Nutrition.
Abbott’s pending motion for summary judgment is ripe. See Dkt. 127. Before
I can address Abbott’s motion, however, I must address four motions that Plaintiffs
filed after Abbott’s summary judgment motion was fully briefed: (1) a motion for
sanctions (Dkt. 151); (2) a motion for leave to file a second supplement in response
to Abbott’s motion for summary judgment (Dkt. 152); (3) a motion to stay ruling
on Abbott’s motion for summary judgment and to reopen discovery (Dkt. 155); and
(4) a motion for leave to file a revised declaration in support of Plaintiffs’ motion
to stay (Dkt. 162).
Plaintiffs seek sanctions because they believe that Abbott violated earlier
discovery orders in this case “by failing to produce its written responses to FDA
Establishment Inspection Reports (‘EIRs’) for the years 2018, 2019, and 2022 and
also failing to produce EIR Exhibits and Attachments for the years 2018, 2019,
2021, and 2022.” Dkt. 151 at 5. Although styled as a motion for sanctions, Plaintiffs
United States District Court
Southern District of Texas
ENTERED
April 22, 2026
Nathan Ochsner, Clerk
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ask the court to compel Abbott “to immediately produce” this written discovery.
Id. at 32. The Galveston Division Rules of Practice require the parties to “file a
joint letter not to exceed two pages outlining the dispute” before filing a motion
to compel. Gal. Div. R. Prac. 7. “Parties may not file a motion to compel without
first exhausting this procedure.” Id. (emphasis added). Because Plaintiffs failed to
follow this court’s rules, their motion for sanctions (Dkt. 151) is DENIED.
I will, however, ORDER Abbott to produce its written response to the FDA’s
2022 EIR.1 Abbott must produce this to Plaintiffs by Tuesday, May 5, 2026.
Because 	I 	am 	ordering 	limited, 	post-discovery 	production, 	I 	will 	GRANT
Plaintiffs’ request to stay summary judgment consideration (Dkt. 155) and give
Plaintiffs until Tuesday, May 19, 2026, to file a supplemental summary judgment
response of no more than five pages. Abbott will have until Tuesday, June 2,
2026, to file a reply of no more than five pages. Failure to strictly adhere to
these page limits will result in the non-complying filing being stricken from the
record. Given these supplemental briefing deadlines, the docket call set for May 8,
2026, is CANCELLED.
Although I am delaying ruling on Abbott’s motion for summary judgment
and ordering limited, post-discovery production, I DENY Plaintiffs’ request to
reopen discovery (Dkt. 155). The sole basis for Plaintiffs’ request to reopen
discovery is the recent unsealing of a federal False Claims Act (“FCA”) lawsuit
against Abbott in the U.S. District Court for the Western District of Michigan. See
United States ex. rel. Millard v. Abbott Lab’ys, Case No. 1:22-cv-00994 (W.D.
Mich.). Plaintiffs ask me to:
Reopen discovery for at least a period of six (6) months from the date
of the Court’s Order and allow Plaintiffs a reasonable period to review,
obtain, and submit unsealed materials from the federal qui tam and
1 According to the declaration of Stefanie Crum, Abbott’s Director of Quality Assurance at
the manufacturing facility where the formula at issue was made, Abbott does not have the
exhibits or attachments referenced in the body of the FDA’s EIRs. See Dkt. 158-6 at 3.
Abbott also did not provide written responses to the FDA’s 2018 and 2019 EIRs. See id. I
cannot order the production of documents that do not exist.
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whistleblower 	litigation 	(FCA 	lawsuit 	referenced 	above), 	obtain
responsive documentation that is also responsive to Plaintiffs’ RFPs
Nos. 	1-103, 	including 	responsive 	documentation 	(such 	as 	batch
production 	records, 	batch 	rework 	records, 	batch 	bracketing
documentation, 	microbial 	testing 	data 	(including 	environmental
monitoring 	and 	finished 	product 	testing 	data), 	whole 	genome
sequencing data and metadata, root cause analysis, etc.) from at least
January 1, 2017 through the present date relating to Abbott’s Casa
Grande facility, and to obtain necessary deposition testimony from
Abbott’s 	authorized 	representatives 	and 	from 	other 	witnesses
(including but not limited to witnesses previously deposed, witnesses
disclosed 	by 	Abbott 	that 	were 	not 	deposed, 	and 	witnesses 	not
previously disclosed, such as the Relators in the FCA lawsuit)
Dkt. 155 at 19.
There are four primary considerations when evaluating whether to modify a
scheduling order to reopen discovery: “(1) the explanation for the failure to timely
move for leave to amend [the scheduling order]; (2) the importance of the
amendment; (3) potential prejudice in allowing the amendment; and (4) the
availability of a continuance to cure such prejudice.” S&W Enters., L.L.C. v.
SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003) (cleaned up).
First, regarding timeliness, Millard was unsealed in November 2025. At
least one legal news organization publicized the unsealing of the lawsuit as early as
December 2, 2025. See Emily Field, States Hit Abbott With FCA Suit Over Infant
Formula 	Recall, 	Law360 	(Dec. 	2, 	2025, 	10:29 	PM 	EST),
https://www.law360.com/articles/2417215/states-hit-abbott-with-fca-suit-over-
infant-formula-recall-. Yet, Plaintiffs did not move to reopen discovery until more
than two months later. Plaintiffs offer no explanation for why they could not have
learned of Millard and moved to reopen discovery sooner. Accordingly, this factor
is, at best, neutral.
Second, I struggle to see the importance of Plaintiffs’ request. None of the
relators in Millard worked at the facility that manufactured the formula that
Plaintiffs’ child consumed before or during the time when said formula was
manufactured. Plaintiffs spend many pages recounting the allegations in Millard,
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but do not offer a simple and straightforward explanation of how the discovery they
seek will be useful in resolving the already-briefed summary judgment motion.
Importantly, Plaintiffs do not identify any evidence cited in Millard that Abbott
should have but did not produce in this litigation.
In moving to reopen discovery, Plaintiffs have clearly opted for quantity over
quality, hoping that the salaciousness of the allegations in Millard will be enough
to satisfy their burden to show good cause for reopening discovery. I am unmoved.
In their reply brief, Plaintiffs claim that they seek “targeted discovery.” Dkt. 161 at
14. But what they have asked for is an additional six months of discovery to pursue
anything referenced in 	Millard 	that might be relevant. If the standard for
reopening 	discovery 	were 	the 	mere 	possibility 	of 	something 	relevant, 	then
discovery would never end, and cases would drag on forever. Thus, the second
factor weighs against reopening discovery.
As for the third and fourth factors, Plaintiffs fail to acknowledge, much less
discuss, the prejudice to Abbott if discovery were reopened for six more months.
This case is three years old. Discovery has been closed for nearly seven months.
Abbott’s summary judgment motion is fully briefed. Plaintiffs have not identified
a need for any specific information likely to result from reopening discovery that
would justify such an extraordinary delay for a case that is trial-ready now
(depending on the outcome of the pending motion for summary judgment).
Accordingly, the third and fourth factors weigh against reopening discovery.
CONCLUSION
In conclusion, I: (1) DENY Plaintiffs’ motion for sanctions (Dkt. 151);
(2) GRANT Plaintiffs’ motion for leave to file a second supplemental summary
judgment response (Dkt. 152); (3) GRANT Plaintiff’s request to stay consideration
of Abbott’s summary judgment motion but DENY Plaintiffs’ request to reopen
discovery (Dkt. 155); and (4) DENY Plaintiffs’ motion for leave to file a revised
declaration (Dkt. 162) as moot.
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Abbott is ORDERED to produce its written response to the FDA’s 2022 EIR
to Plaintiffs by Tuesday, May 5, 2026. Plaintiffs will have until Tuesday, May 19,
2026, to file a supplemental summary judgment response of no more than five
pages. Abbott will then have until Tuesday, June 2, 2026, to file a reply of no
more than five pages. The May 8, 2026 docket call is CANCELLED.
SIGNED on this ___ day of April 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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