General Question

sabrinabrownsmb's avatar

A Market Sold my 2 Month Daughter EXPIRED FORMULA and now she's sick... CAN I SUE?

Asked by sabrinabrownsmb (37points) April 18th, 2013

I need to know what kind of lawyer I need for my daughter…

Her father went to a local market to get Infant Formula. They sold him it and it was 5 months expired. She ate it that day and over night I notice she was having trouble sleeping. She became very ill with vomiting and diarrhea. I had to take her to the ER as soon as I found the formula to be expired. I haven’t be able to go to work for 2 days now.

I went back to where he bought it from and they tried to sell me the same expired formula from behind the customer service desk.
I said Ma’am this product is 5 months expired. she said oh no we cant sell you this. I said ma’am you did yesterday to my baby’s father and my daughter had already drank a few bottles of it. She refunded me for 4 cans instead of 3.

I called the health dept, similac office and a few laywers but I cant seem to find a lawyer to handle my case. We feel like we failed as parents by not noticing right away. But with both of us being military we endure enough stress as it is.

Do I have a lawsuit??

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36 Answers

Cupcake's avatar

What did the ER say? What was her diagnosis in the discharge paperwork? What treatments did they provide? What tests did they run?

I doubt her illness could be definitively linked to the formula.

Keep the formula – don’t get rid of it. Keep your receipts. See if you can find a lab to test it (perhaps both for pathogens and nutritional makeup). Send the store a letter outlining the transaction, the product, the expiration, the date of purchase, the illness and subsequent hospital visit, diagnoses, etc. Send a copy to the local health department and better business bureau.

elbanditoroso's avatar

You have a customer service issue. Not a lawsuit issue. Lawyers aren’t interested because the defense will say that you have an obligation to read the can before you buy it. They may have had it on the shelf, but your husband picked it up and bought it.

You can sue, but the judge will laugh at you. And it will cost more in aggravation and fees than you will ever get back.

You are far better taking responsibility (and teaching your husband to take responsibility) for stuff that you buy.

janbb's avatar

Concentrate on getting her well first. Then decide if you have the interest, energy and finances for a lawsuit. If she is only sick for a short time, it may be that several angry letters to the store and the company will satisfy your outrage.

Judi's avatar

You could ask them for a claim number from their liability insurance company. You may be able to get them to settle for medical expenses and lost wages. In most states juries determine a percentage of liability and you have some responsibility for not reading the can. Also, expiration dates are usually very conservative. The product was probably fine and your daughter just got one of those bugs babies get.
Yet another reason to support breast feeding. The freshest milk a baby can get.

sabrinabrownsmb's avatar

They are doing a stool test… the ER discharge papers said she was seen for her diarrhea and vomiting and will send me home to get an over night stool sample. She was fine until she ate this formula im 100% sure of it.
I understand that it my fault for not rechecking the product but for it to be behind costumer service who would of thought it will be expired. the whole rack was expired formula.

She was stressed out, couldn’t sleep, tossing turning, diarrhea, vomiting, cramping, dehydrated .
I had to leave work in the middle of my training day to take her to the hospital.

sabrinabrownsmb's avatar

The Stool sample will determine the bug that she got and if it might have been caused by the formula

Cupcake's avatar

I get that you’re 100% convinced. The problem is that there is no way to know. It’s very unlikely that they are related. Even if they find a bug, it is unlikely that it will grow from the formula sample (you kept the unused formula, right?). Just because the expiration date passed does not mean that bugs can start to grow in it. BTW – was it liquid or powder formula?

Babies get sick. Parents miss work.

zenvelo's avatar

The liability is not on the part of the formula maker but on the store that sold it to you.

A lawsuit is only for your costs. You would have to demonstrate long term costs because of something debilitating happening, and the resultant emotional distress.

I hope your baby gets better. A lawsuit will not get your baby better.

Lawyers who take this kind of case do so on a contingency basis, meaning there is no cost to you , but they get ⅓ of any settlement or judgment. So they won’t take on a case unless they are sure they will make some money on it.

Rarebear's avatar

Sure you can sue. It will cost you thousands of dollars, and you could easily lose.

Cupcake's avatar

So the liquid has been opened for >2 days… how long are you allowed to keep open premixed formula? I would think less time than that, which would mean that you can no longer culture it.

I’m sorry that this happened to you. I hope your kiddo feels better soon. Please double check all expiration dates from now on.

sabrinabrownsmb's avatar

no it wasn’t open for 2 days less then 24 hrs
we have gave her a bottle at 12pm, 3 pm and 5:30pm and over night she had breast milk

Cupcake's avatar

I mean between when you opened it and this minute right now, as in whether or not you could bring it to a lab and get meaningful results.

You’re breastfeeding too! Good for you!

sabrinabrownsmb's avatar

This happen Monday and we stopped using it Monday she was sick all tuesday and today.
I’m taking her stool sample now

jca's avatar

If I were you I’d concentrate more on getting the baby well.

Then I’d look into the store – was it a chain or an independent store? I would call the local Health Department. @zenvelo was right – a lawyer is not going to want to take this case if they are not sure they’d going to make money.

sabrinabrownsmb's avatar

Its called Compare Foods there’s a few of them around. I guess I did all the right steps… im a new mom I just don’t want anything to come from this where I would have to sue you know. I called similac to inform them that the product was sold expired, I called the health dept, and I called some food inspector officer in Fayetteville NC. So im sure the store is getting slammed.

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janbb's avatar

@sabrinabrownsmb It sounds like you alerted the proper authorities. Now concentrate on your baby and yourself. All will be well.

Cupcake's avatar

@sabrinabrownsmb It sounds like you’re doing a great job. Hang in there.

deni's avatar

I think you did the right thing taking her to the doctor, and letting the appropriate people know that this store was selling expired goods. I just think the truth of the matter is that it boils down to being your responsibility to make sure what you are putting in your baby’s stomach is not something that is expired or spoiled or moldy or bad for her. I agree they shouldn’t have sold it to you—but you shouldn’t have fed it to her either. That being said, expiration dates are usually wildly early as opposed to when the product actually expires. Generally, I buy milk and use it so rarely that I still have it, and it is still good, over a month after the expiration date! I’m just saying, it could be something else. You can’t be 100% sure.

josie's avatar

It is disconcerting when kids get sick.I don’t blame you for being upset.
Canned formula, 5 months out of date is not going to make the child sick. Unless the can was dented up or damaged and had a micro leak. But you wouldn’t buy that can anyway, would you?
No way you can come out ahead with a lawsuit.

Dutchess_III's avatar

I had to read twice….so this was premixed liquid formula? Yes, you should have checked the date. And yes, the store should have checked the dates too, but I don’t see any more culpability on their part than on yours.

I also question whether or not it was the formula that made her sick. If was “bad,” I would think she would have shown reluctance to eat it. Plus I think she would have reacted within an hour or so, not 12 hours later. I got food poisoning once. I was in college. I was cramping and vomiting within 30 minutes after I ate the nasty vending machine burrito.

Anyway, it was a lesson learned, and I’m glad your baby is going to be OK. Poor kid.

SpatzieLover's avatar

Some stores do this on purpose. Yes, you can sue.

Some store chains are well-known for erasing the expiration dates off from exprired or soon-to-expire foods, including baby formula.

Keep records, take videos, find your receipt…document away. At the very least, you let your proper state authorities know so this can be prevented from happening to another family. That is vital.

SpatzieLover's avatar

See the What Can You Do? section of this page.

When you send the letter to the store manager and to the grocery store headquarters, my advice would be to send the letters certified.

YARNLADY's avatar

good advice above ^^, but the store lawyers can easily argue that the information was right there on the label and you should have read it.

WillWorkForChocolate's avatar

No, you have no lawsuit here. Your husband should have checked the can before he bought it, sorry. Before I purchased any formula or Gerber food jars for my babies, I always checked the dates.

SuperMouse's avatar

I agree with all those who said you most likely do not have a lawsuit (which is probably why no lawyer is interested in taking the case). The truth of the matter is that it would be very difficult to prove that the formula is what caused your child’s illness and either way, it is your responsibility to double check the expiration date.

AshlynM's avatar

Sorry, no case. I think you’d be wasting your time with this lawsuit. Lawyers aren’t cheap.
As @SuperMouse has said, proving that this formula even caused your baby’s illness is going to be difficult. That could be why lawyers aren’t interested.There could’ve been other reasons why your baby got sick.
You can sue anyone for anything, the problem is winning and collecting. Just chalk this up to lesson learned and always check the expiration date on anything you buy, regardless what it is.

Dutchess_III's avatar

Look at it this way…the store should have checked the expiration date before they sold it to you.

You should have checked the expiration date before you gave it to the baby.

It all comes down to the bottom line, the baby who can’t check the expiration date. Should the baby be able to sue you?

Qipaogirl's avatar

I would start by sending a damages type letter to the store. Total up lost time form work, medical expenses, and whatever other costs resulted from the incident, and send it. If a chain store send both to store and corporate HQ. See what they do in response. Keep all items associated with the event. If you have the formula container that would be great because the lot number would be linked to the store.

LostInParadise's avatar

For what it is worth, I did a Web search and found this article, which says that there is no Federal law against selling products past their expiration date. There may be related laws in NC. You did the right thing to contact the health dept. Whether they will do anything is another matter.

Magus's avatar

Short answer: Yes.

Either the market that sold it to you, or the manufacturer

Dutchess_III's avatar

How would the manufacturer be at all responsible @Magus?

SuperMouse's avatar

@Magus would you mind giving a long answer?

kritiper's avatar

Just because a product is past a date on the label does not automatically mean that it is bad. IMO, It is just a scam to make people throw out perfectly good food and then go and buy more.

elbanditoroso's avatar

Given that this question was asked 8 years ago, the kid is probably drinking real milk now (or perhaps was poisoned).

In any event, we’re unlikely to hear an update from the OP.

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