Menu Foods settled a US$24 million lawsuit last year that grew from the largest petfood recall in US history. The case was heard in New Jersey, and parties are still wrapping up various items on the docket, but now a Washington state litigant is charging that the company illegally destroyed thousands of samples of food, potentially leaving him without evidence to pursue his claim.
During discovery for the New Jersey suit, the defendants collected thousands of cases of petfood - both recalled and non-recalled - in their warehouse. In December 2007, the defendants claimed that preserving all of these samples was an unnecessary waste of time and money. The court agreed, and allowed the defendants to destroy all but 500 units of recalled petfood.
Donald Earl, a plaintiff in a Washington state suit, filed a motion objecting to the orders in January 2008. Earl's suit involved "cake style" cat food, which does not contain gluten and was not implicated in the March 2007 recall.
Laboratory tests of Earl's food showed that it was contaminated with acetaminophen and cyanuric acid, nitrogen-based chemicals often used to artificially boost a food's apparent protein content. Neither chemical was discovered in the recalled food. Despite his allegations, the court dismissed Earl's objection without comment in February 2008.
Earl also filed a motion in Washington state court, where his own suit was pending. That court rejected his claim in February 2008.
Undeterred, Earl filed a second objection and motion to intervene in January 2009.
In a two-page order issued in February, Judge Noel Hillman denied Earl's motion to intervene, holding that Earl "has not demonstrated that he has an interest in the 'unorganized inventory' requiring that this Court vacate its prior orders regarding that inventory."