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
MEMORANDUM AND RECOMMENDATION
This is a products liability case brough by Plaintiffs Judy Nicole Jacobs,
individually and as next friend of C.J., a minor; and Cameran A. Jacobs. Pending
before 	me 	is 	a 	motion 	for 	summary 	judgment 	filed 	by 	Defendant 	Abbott
Laboratories, Inc. d/b/a Abbott Nutrition. See Dkt. 127 (redacted); Dkt. 128
(sealed).1 Having reviewed the briefing, the record, and the applicable law, I
recommend that Abbott’s motion for summary judgment be granted.
BACKGROUND
The parties identify few genuinely disputed facts. Rather, their disagreement
centers on what inferences may reasonably be drawn from those facts.
C.J. was born full term without pregnancy or delivery complications on
September 19, 2020. It is undisputed that, in September 2020, C.J. consumed
Abbott’s Similac Sensitive powdered infant formula (the “Formula”), which was
contaminated 	with 	a 	bacterium 	known 	as 	Cronobacter 	sakazakii. 	The
Cronobacter caused a bacterial meningitis infection, which C.J. survived, but only
1 A reference chart showing the sealed and redacted versions of the parties’ briefing and
exhibits is available. See Dkt. 175. Because resolving this motion does not require quoting
any sealed information, I have cited only to the publicly available, redacted versions of
the parties’ briefing and exhibits.
United States District Court
Southern District of Texas
ENTERED
July 02, 2026
Nathan Ochsner, Clerk
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after undergoing brain surgery and ultimately suffering permanent hearing loss in
one ear.
Plaintiffs purchased the Formula on September 20, 2020, and began feeding
C.J. the Formula on September 21, 2020. On September 30, 2020, C.J. became ill
and was admitted to the hospital due to a concern of bacterial meningitis. It is
undisputed that Abbott manufactured the Formula at its Casa Grande, Arizona
facility, and that C.J. consumed formula only from that one can. It is also
undisputed that the strain of Cronobacter found in the Formula matched the strain
found in C.J.’s cerebrospinal fluid. Thus, it is undisputed that the Cronobacter
found in the Formula was the cause of C.J.’s infection. The causation question
presented by the summary judgment briefing turns on whether the Formula
became contaminated with Cronobacter while it was in Abbott’s hands or in
Plaintiffs’ home.
The other undisputed facts are as follows:
x 	In 2017, Abbott discovered Enterobacteriaceae3 on two separate
occasions, and Cronobacter on one occasion, at its Casa Grande
facility in its dryer-sifter east floor, but not in any finished products
of infant formula. See Dkt. 177 at 15.
x 	Abbott discovered Cronobacter in a finished product batch of
powered infant formula in 2018 and destroyed the batch before
distribution. See Dkt. 127 at 12; Dkt. 177 at 16; Dkt. 149 at 9–10.
x 	The Formula was manufactured at Abbott’s Casa Grande facility in
August 2020.
x 	While the Formula was being manufactured, Abbott detected
Enterobacteriaceae during an early stage of the manufacturing
process. Abbott continued manufacturing the batch. The batch was
tested 	for 	Enterobacteriaceae 	during 	the 	later 	stages 	of
manufacturing and no Enterobacteriaceae was detected during
those later stages. Once the Formula’s batch was run through the
3 “Enterobacteriaceae is a family of Gram-negative bacteria. It includes many genera,
including Escherichia, Klebsiella, Enterobacter, Salmonella, Shigella, and Cronobacter.”
Dkt. 136-8 at 3. Thus, a positive Enterobacteriaceae swab could be indicative of
Cronobacter, but it could also be indicative of other genera. Only further testing can
confirm whether a positive Enterobacteriaceae swab is Cronobacter.
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dryer, or the kill step, Abbott conducted composite testing on 60
cans of finished product out of 45,288 cans produced in the
Formula’s entire lot. The composite testing on the 60 cans was
negative for Cronobacter. See Dkt. 177 at 17; Dkt. 149 at 10 n.3.
x 	On August 12, 2020, while the Formula was stored in Abbott’s
warehouse, Enterobacteriaceae was found in a different part of the
facility (again on the dryer-sifter east floor), but not in any finished
product of infant formula. This isolate of Enterobacteriaceae
tested negative for Cronobacter. See Dkt. 177 at 17; Dkt. 149 at 9
n.2.
x 	The finished cans of the Formula’s lot were stored in Abbott’s
warehouse until the lot was approved for release and distribution
on August 18, 2020.
x 	Cronobacter was not found in Abbott’s Casa Grande facility in the
entire year (2020) in which the Formula was produced. See
Dkt. 149 at 9.
x 	C.J. “arrived at home on September 20, where he lived with seven
family 	members—his 	parents, 	two 	older 	siblings, 	two
grandparents, and an uncle—along with two dogs and a cat.”
Dkt. 127 at 13. “In the days after C.J.’s arrival, the family welcomed
six visitors, each of whom held C.J.” Id. “Both family members and
visitors wore shoes inside the house, and the pets freely walked
between the inside and outside of the home.” Id.
x 	Plaintiffs’ experts agree that “the presence of pets in a home
increases the risk of Cronobacter incidence in the home.” Dkt. 127-
7 at 27; see also Dkt. 127-8 at 6–7.
x 	Plaintiffs’ experts also agree that homes in which “individuals wore
shoes from outside” is a “factor associated with Cronobacter
presence.” Dkt. 127-8 at 8; see also Dkt. 127-7 at 16–17 (refusing to
“dispute the notion that Cronobacter has the potential to come into
homes on the soles of shoes or on hands”).
x 	After learning of C.J.’s illness, Abbott and the Food and Drug
Administration (“FDA”) tested almost 50 sealed cans of formula
from the Formula’s batch—all of which tested negative.
x 	The FDA, Centers for Disease Control and Prevention (“CDC”), and
Texas Department of State Health Services (“DSHS”) investigated
C.J.’s illness and the Formula. All closed their investigations
without taking any action or requiring that any formula be recalled.
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x 	Neither Abbott nor any government authority received any other
complaints of Cronobacter-related illnesses related to the Formula
batch.
x 	On November 28, 2020, Enterobacteriaceae was again discovered
at the Casa Grande facility in the dryer-sifter east floor, but not in
any finished product of infant formula. This isolate tested negative
for Cronobacter. See Dkt. 177 at 18; Dkt. 149 at 9 n.2. 4
On April 28, 2023, Plaintiffs instituted this action against Abbott . The live
claims are for negligence, strict product liability, and breach of the implied
warranty of merchantability. Abbott has moved for summary judgment arguing
that Plaintiffs’ claims fail as to causation and, alternatively, that Abbott is entitled
to partial summary judgment on at least Plaintiffs’ labeling claims and certain
damages. As for causation, the only dispute concerns whether a reasonable juror
could, considering all the undisputed facts, infer that it is more likely than not that
the Formula was contaminated during Abbott’s manufacturing process in August
2020 at the Casa Grande facility. See Dkt. 177 at 24 (Plaintiffs acknowledge that
the only two potential sources of the contamination were Abbott’s Casa Grande
facility and Plaintiffs’ home). Because, as explained below, Plaintiffs have not
carried their summary judgment burden as to causation, I need not reach Abbott’s
arguments regarding partial summary judgment on Plaintiffs’ labeling claims and
damages.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
4 Plaintiffs offer several facts about events at the Casa Grande facility starting eight
months after the Formula’s lot was approved for release and distribution. Setting aside
the questionable relevance of these facts, they serve only to establish what is already
undisputed: that the Casa Grande facility is one possible source of contamination. They
are not facts from which a reasonable jury could conclude that it is more likely than not
that the Formula was contaminated at Abbott’s Casa Grande facility in August 2020. Nor
are facts about Abbott’s other facilities in different states facts from which a reasonable
jury could conclude that it is more likely than not that the Formula was contaminated at
Abbott’s Casa Grande facility in August 2020.
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Civ. P. 56(a). “No genuine issue of material fact exists if the summary-judgment
evidence is such that no reasonable juror could find in favor of the nonmovant.”
Jenkins v. Methodist Hosp. of Dall., Inc., 478 F.3d 255, 260 (5th Cir. 2007).
“The moving party bears the initial burden of showing that there is no
genuine issue for trial.” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th
Cir. 1995). Where, as here, the movant does not bear the burden of proof, its
burden is satisfied by showing that the other party has a “failure of proof on an
essential element of its claim.” Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d
319, 329 (5th Cir. 2020). A party makes this showing by introducing evidence or
by “pointing out . . . an absence of evidence to support the nonmoving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
“If the [movant] succeeds on that showing, the burden shifts to the
[nonmovant] to demonstrate that there is a genuine issue of material fact and that
the evidence favoring the [nonmovant] permits a jury verdict in the [nonmovant]’s
favor.” Joseph, 981 F.3d at 329. If the nonmoving party fails to make a showing
sufficient to establish the existence of an element essential to its case on which it
will bear the burden of proof at trial, summary judgment must be granted. See
Celotex, 477 U.S. at 325.
The parties satisfy their respective burdens “by tendering depositions,
affidavits, and other competent evidence.” Topalian v. Ehrman, 954 F.2d 1125,
1131 	(5th 	Cir. 	1992). 	“Conclusional 	allegations 	and 	denials, 	speculation,
improbable inferences, unsubstantiated assertions, and legalistic argumentation
do not adequately substitute for specific facts showing a genuine issue for trial.”
Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
In evaluating whether summary judgment is appropriate, I “consider all of
the evidence in the record, but [I] do not make credibility determinations or weigh
the evidence.” Austin v. Will-Burt Co., 361 F.3d 862, 866 (5th Cir. 2004). I must
view all “the evidence in the light most favorable to the [party opposing summary
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judgment] and draw all reasonable inferences in that party’s favor.” Cadena v. El
Paso County, 946 F.3d 717, 723 (5th Cir. 2020).
ANALYSIS
All of Plaintiffs’ claims—negligence, strict product liability, and breach of
implied warranty—require Plaintiffs to create a genuine issue of material fact as to
causation. See Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995)
(negligence and strict liability both require proof of causation), abrogated on other
grounds by Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007); Hyundai
Motor Co. v. Rodriguez ex rel. Rodriguez, 995 S.W.2d 661, 663 (Tex. 1999) (breach
of implied warranty requires proof of causation). Because the contaminated
Formula and C.J.’s infection are genetically linked, causation turns on whether
Plaintiffs can point to competent evidence from which a reasonable jury could find
that the contamination more likely than not occurred before the Formula left
Abbott’s control.
Plaintiffs acknowledge that there are two possible sources of the Formula’s
contamination: Abbott’s Casa Grande facility and “Plaintiffs’ home environment.”
Dkt. 177 at 24. Sheer possibility, however, will not satisfy Plaintiffs’ burden as to
causation. “[A] possible cause only becomes ‘probable’ when in the absence of
other reasonable causal explanations it becomes more likely than not that the
injury was a result of its action. This is the outer limit of inference upon which an
issue can be submitted to the jury.” Parker v. Emps. Mut. Liab. Ins. Co. of Wis.,
440 S.W.2d 43, 47 (Tex. 1969). Thus, at summary judgment, Plaintiffs must point
to evidence that could nudge the mere possibility of contamination at the Casa
Grande facility, as opposed to Plaintiffs’ home, from possible to “more likely than
not.” Id. Plaintiffs point to no such evidence.
Plaintiffs’ 	home 	is 	not 	a 	merely 	a 	theoretical 	alternative 	source 	of
contamination. The undisputed record shows the presence of multiple recognized
risk factors for Cronobacter at the Plaintiffs’ home, including pets moving between
indoors and outdoors, shoes worn inside the home, and multiple visitors handling
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C.J. Despite this, Plaintiffs contend that “[t]here is empirical evidence and data in
the form of testing that serves as circumstantial evidence pointing to the [Abbott’s
Casa Grande] plant as the source of the Cronobacter.” Dkt. 177 at 24. Not so. The
evidence in the record merely points to the Casa Grande facility as one potential
source of contamination, just as the opened can’s presence in Plaintiffs’ home,
combined with the undisputed household risk factors identified by Plaintiffs’
experts, makes Plaintiffs’ home another potential source of contamination.
Plaintiffs argue that one of their experts, Dr. Abigail Snyder, “testified at her
deposition . . . that while no direct smoking gun evidence exists as to any cause of
contamination, Abbott’s [Casa Grande] facility is the much more likely cause than
the home environment.” Dkt. 177 at 26–27 (citing Dkt. 136-5 at 10). But Dr. Snyder
said no such thing. Rather, Dr. Snyder stated that the Formula “reasonably could
have been contaminated in the [Casa Grande] facility.” Dkt. 136-5 at 10. Dr. Snyder
also testified that she could not rule out contamination in Plaintiffs’ home, and that
“[i]t is possible for the formula to have been contaminated [after it was opened in
Plaintiffs’ home].” Dkt. 127-8 at 4. Dr. Snyder attempted to limit the impact of this
testimony by stating: “I can’t definitively rule out the possibility that [the Formula]
was 	contaminated 	in 	the 	Jacobs’ 	home; 	however, 	there 	is 	not 	evidence 	of
Cronobacter in the home and the Jacobs used hygenic [sic] practices to prepare it.”
Id. at 3. But there is similarly no evidence of Cronobacter in the Casa Grande
facility in the entire year that the Formula was produced despite Abbott’s testing.
Thus, “Dr. [Snyder]’s opinion as to causation of the [contamination is] ambivalent
and is of no help to the jury in sorting out a reliable explanation of how the
[contamination] occurred.” Sandifer v. Hoyt Archery, Inc., 907 F.3d 802, 809 (5th
Cir. 2018). “[A] fact may not be inferred from circumstantial evidence that could
support multiple inferences if none are more probable than the others. In addition,
an inference drawn only from other inferences (rather than direct evidence) is not
legally sufficient evidence.” Smith v. Landry’s Crab Shack, Inc., 183 S.W.3d 512,
514 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (cleaned up).
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Plaintiffs argue that “[t]here is no empirical evidence or data, in the form of
any testing of any surfaces or other items within the home environment, that
points to the home as the source of the Cronobacter.” Dkt. 177 at 24. This argument
misses the mark in two respects. First, there is also no empirical evidence or data
showing Cronobacter in the Casa Grande facility in 2020 or in the Formula’s batch
before distribution. Second, Abbott is not required to exclude Plaintiffs’ home as a
potential source of contamination. Plaintiffs, as the parties who instituted this
lawsuit, bear the burden of proof on their claims. Plaintiffs “must identify a specific
defect by competent evidence and rule out other possible causes of the damage.”
Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015)
(emphasis added). Thus, Plaintiffs must either point to evidence suggesting that
their home was not a potential source of contamination or point to evidence
suggesting 	that 	Abbott’s 	facility 	was 	more 	likely 	than 	not 	the 	source 	of
contamination. Plaintiffs claim that they have done the latter, but they have not.
Plaintiffs’ theory rests on evidence that Cronobacter was detected at the
Casa Grande facility years before and years after the Formula was manufactured,
coupled with the fact that Enterobacteriaceae were detected during production of
the Formula’s batch. But there is no evidence that Cronobacter was present during
the Formula’s production, no evidence that Cronobacter was present in the
Formula’s batch before distribution, no evidence that Cronobacter was present
anywhere at the Casa Grande facility in 2020, and no evidence that any released
can 	of 	formula 	from 	the 	Casa 	Grande 	facility 	has 	ever 	tested 	positive 	for
Cronobacter. 	From 	this 	record, 	a 	jury 	could 	conclude 	that 	the 	Formula’s
contamination occurred during its manufacturing at the Casa Grande facility only
by speculating that contamination existed despite the absence of any evidence to
support that conclusion.
A verdict for Plaintiffs would require the jury to infer that Cronobacter was
present in the Casa Grande facility in 2020 despite the absence of evidence that it
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was,5 then infer that contamination occurred during the Formula’s manufacturing
even though every other can in the Formula’s batch that was tested during and
after manufacturing tested negative for Cronobacter. Texas law does not permit a
verdict resting on such stacked inferences and speculation. See Marathon Corp. v.
Pitzner, 106 S.W.3d 724, 728 (Tex. 2003) (“[A]n inference stacked only on other
inferences is not legally sufficient evidence.”).
Plaintiffs quote Helena Chemical Co. v. Cox, for the proposition that
“alternative causes ‘need not necessarily be ruled out entirely’ and that experts
need only to account for ‘plausible alternative causes raised by the evidence.’”
Dkt. 177 	at 	21–22 	(emphasis 	removed) 	(quoting 	664 	S.W.3d 	66, 	80–81
(Tex. 2023)). Plaintiffs then argue that their home “as a potential cause” is “merely
hypothetical and not raised by any evidence of record.” Dkt. 177 at 22. But, as
discussed above, the evidence raises the Casa Grande facility only as a possible
source, not as a source that is more likely than Plaintiffs’ home. The Cronobacter
detections at the Casa Grande facility on which Plaintiffs rely are too remote in
time, and the 2020 Enterobacteriaceae swabs tested negative for Cronobacter.
Plaintiffs may dispute whether this testing was sufficient to exclude contamination
with certainty, but Abbott does not have a burden of demonstrating certainty in
their testing. The question is whether Plaintiffs have affirmative evidence that
makes manufacturing contamination more probable than home contamination.
5 Plaintiffs offer expert opinion that Abbott’s testing was insufficient and argue that this
inadequate testing—coupled with positive Cronobacter swabs from years before and
years after the Formula was manufactured and roof leaks—would permit a jury to
reasonably infer that it is more likely than not that the Formula was contaminated at the
Casa Grande facility in August 2020. While the roof leaks and the adequacy of Abbott’s
testing regime may be relevant, an expert’s opinion about these things, without more,
does not permit a reasonable inference that Cronobacter was present at the Casa Grande
facility in 2020 or that the Formula was contaminated with Cronobacter while in Abbott’s
hands, as both conclusions require a juror to speculate that Cronobacter was present at
the Casa Grande facility and infer that the Formula became contaminated during
manufacturing despite empirical testing to the contrary.
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They do not. Thus, the outcome here should be no different than the outcome in
Helena Chemical.
In Helena Chemical, the Texas Supreme Court explained that, although
plaintiffs need not “necessarily” rule out every alternative cause, plaintiffs must
still “account” for plausible alternative causes raised by the evidence and make an
affirmative showing that the defendant’s conduct was a substantial factor in
causing the injury. 664 S.W.3d at 80–82. Plaintiffs have not done that here.
Plaintiffs’ experts acknowledge that Plaintiffs’ home environment was a possible
source of contamination, and the undisputed record identifies household risk
factors associated with Cronobacter presence, including pets moving between
indoors and outdoors and shoes worn inside the home. Plaintiffs account for that
plausible alternative only by observing that no Cronobacter was detected in
Plaintiffs’ home. See Dkt. 127-8 at 3. But no one tested Plaintiffs’ home. And the
absence of home testing does not supply affirmative evidence that Cronobacter
was present at the Casa Grande facility in August 2020, that Cronobacter
contaminated the Formula’s batch before distribution, or that the Formula became
contaminated while in Abbott’s hands. Unlike Plaintiffs’ home, which was not
tested, Abbott tested the two positive Enterobacteriaceae swabs it had in 2020 for
Cronobacter and both were negative. At most, Plaintiffs’ evidence leaves two
possible 	sources 	of 	contamination. 	Against 	such 	ambivalent 	evidence, 	only
speculation, not reasonable inference, would allow a jury to conclude that the Casa
Grande facility was the more likely cause of the contamination. Thus, Abbott is
entitled to summary judgment.
* * *
Because Plaintiffs’ claims fail as to causation, I do not reach Abbott’s
arguments about whether partial summary judgment is warranted on Plaintiffs’
labeling claims or certain of Plaintiffs’ claimed damages.
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CONCLUSION
For the reasons discussed above, I recommend that Abbott’s motion for
summary judgment (Dkts. 127, 128) be granted.
The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED on this ___ day of July 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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