Tuesday, September 16 , 2014
Petfood maker Del Monte may not dismiss claims that its Milo's Kitchen brand of chicken jerky treats made in China poisoned and killed dogs, according to a federal judge.
Lisa Mazur filed a federal class-action suit against Del Monte and Milo's Kitchen in Pittsburgh, Pennsylvania, USA, in 2012. Mazur claimed that her healthy 7-year-old dog, Riley Rae, suffered kidney failure and had to be euthanized after occasionally eating the jerky treats for about a month. She is seeking punitive damages for the class for common law fraud, unjust enrichment, negligence, product liability, unfair trade, breach of warranty, failure to warn and defective manufacture or design.
"Defendants intentionally concealed known facts concerning the safety of their dog treats in order to increase or maintain sales," Mazur said in the complaint.
US District Judge Jeffrey White agreed in April to transfer two other Northern California cases to Pittsburgh, where Mazur's case is pending.
Del Monte and Milo's moved to dismiss in September 2012, and US Magistrate Judge Maureen Kelly recommended that only the unjust enrichment claim be dismissed. Mazur's claims "appear sufficient to permit the inference that a defect exists in Milo's chicken jerky treats and that the defect is the most likely explanation for the illness suffered by plaintiff's dog by eliminating other reasonable causes," Judge Kelly wrote.
Kelly found the claims under Pennsylvania's Unfair Trade Practices and Consumer Protection Law are "more than sufficient to place defendants on notice of the precise misconduct with which they are charged" and added that the allegations "more than adequately set forth losses suffered by plaintiff and the putative class members that are distinct from the disappointed expectations evolving solely from the purchase of defendants' products; they clearly articulate property damage in the form of harm to their pets."
However, the judge dismissed the claim of unjust enrichment, writing: "Here, it is apparent from plaintiff's allegations in the complaint that, while she is dissatisfied with the chicken jerky treats, she nevertheless purchased, received and used the product. It therefore cannot be said that the benefit bestowed on defendants in the form of a profit from the sale was 'wrongly secured.'"
US District Judge Cathy Bissoon adopted Kelly's recommendation on June 25.
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