Loeb v. Champion Petfoods USA Inc.

• Decision Date: 06 February 2019
• Docket Number: Case No. 18-CV-494-JPS
• Citation: 359 F.Supp.3d 597
• Parties: Kellie LOEB, Plaintiff, v. CHAMPION PETFOODS USA INC. and Champion Petfoods LP, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

359 F.Supp.3d 597

Kellie LOEB, Plaintiff,

v.CHAMPION PETFOODS USA INC. and Champion Petfoods LP, Defendants.

Case No. 18-CV-494-JPS

United States District Court, E.D. Wisconsin.

Signed February 6, 2019

Erich P. Schork, Barnow and Associates PC, Robert A. Clifford, Shannon M. McNulty, Clifford Law Offices, Ben Barnow, Barnow and Associates PC, Chicago, IL, John D. Blythin, Mark A. Eldridge, Shpetim Ademi, Ademi & O'Reilly LLP, Cudahy, WI, Charles E. Schaffer, Levin Sedran & Berman LLP, Philadelphia, PA, Joseph J. Braun, Richard S. Wayne, Strauss Troy, Cincinnati, OH, for Plaintiff.

Mark E. Schmidt, Derek J. Waterstreet, Susan E. Lovern, von Briesen & Roper SC, Milwaukee, WI, David A. Coulson, Greenberg Traurig LLP, Miami, FL, for Defendants.

ORDER

J.P. Stadtmueller, U.S. District Judge

1. INTRODUCTION

Plaintiff, a Wisconsin consumer, asserts that Defendants, makers of pet food, deceptively marketed their dog food as having various high-quality attributes when this was not the case. Specifically, she claims that Defendants' product was contaminated with lead, arsenic, cadmium, and mercury. On that basis, she brought the instant class action which states five separate causes of action. (Docket # 1). Three of the claims were dismissed in the Court's order addressing Defendants' motion to dismiss. (Docket # 19) (the "Dismissal Order"). Defendants have filed a motion for summary judgment addressing the two remaining claims and seeking dismissal of the entire lawsuit. (Docket # 33). For the reasons explained below, Defendants' motion must be granted.

2. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 provides that the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see Boss v. Castro , 816 F.3d 910, 916 (7th Cir. 2016). A "genuine" dispute of material fact is created when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court construes all facts and reasonable inferences in a light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc. , 815 F.3d 356, 360 (7th Cir. 2016).

In assessing the parties' proposed facts, the Court must not weigh the evidence or determine witness credibility; the Seventh Circuit instructs that "we leave those tasks to factfinders." Berry v. Chicago Transit Auth. , 618 F.3d 688, 691 (7th Cir. 2010). Internal inconsistencies in a witness's testimony " ‘create an issue of credibility as to which part of the testimony should be given the greatest weight if credited at all.’ " Bank of Ill. v. Allied Signal Safety Restraint Sys. , 75 F.3d 1162, 1170 (7th Cir. 1996) (quoting Tippens v. Celotex Corp. , 805 F.2d 949, 953 (11th Cir. 1986) ). The non-movant "need not match the movant witness for witness, nor persuade the court that [its] case is convincing, [it] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact." Waldridge v. Am. Hoechst Corp. , 24 F.3d 918, 921 (7th Cir. 1994).

3. RELEVANT FACTS

Defendants sell many varieties of pet food. The two at issue in this case are the dog foods Orijen Original and Orijen Senior. From November 2016 through March 2018, Plaintiff purchased Orijen Original and Orijen Senior for her two dogs. She did so at various pet supply stores throughout Wisconsin. The packaging of these products included many statements about their quality and wholesomeness, including the following (capitalization is preserved):

• ORIJEN features FRESH, RAW or DEHYDRATED INGREDIENTS, from minimally processed poultry, fish and eggs that are deemed fit for human consumption prior to inclusion in our foods

• FRESH REGIONAL INGREDIENTS GROWN CLOSE TO HOME – We focus on local ingredients that are ethically raised by people we know and trust, and delivered to our kitchens fresh or raw each day

• WHOLEPREY DIET

• Nourish as Nature Intended – ORIJEN mirrors the richness, freshness and variety of WholePrey meats that dogs are evolved to eat

• MADE IN OUR USA KENTUCKY KITCHENS

• INGREDIENTS WE LOVE FROM PEOPLE WE KNOW AND TRUST

• TRUSTED BY PETLOVERS EVERYWHERE, ORIJEN IS THE FULLEST EXPRESSION OF OUR BIOLOGICALLY APPROPRIATE AND FRESH REGIONAL INGREDIENTS COMMITMENT

(Docket # 36-3 at 7–15).

The packaging does not specifically represent that the products are free of heavy metals. Plaintiff believes that even without this express statement, the general import of the packaging led her to believe that she was purchasing a premium, healthy, locally sourced dog food, implicitly free of harmful contaminants. Nonetheless, Defendants never intentionally added heavy metals to their products. The heavy metals found therein are naturally occurring, in that they were present in the plants and animals which were processed into the food.¹

Defendants have offered evidence that the presence of heavy metals in Orijen does not make the product harmful or dangerous.² In 2005, the National Research Council published a study titled Mineral Tolerance of Animals (the "MTA"). The MTA describes maximum tolerable levels ("MTL") for various substances in pet food, including the heavy metals at issue here. According to third-party lab studies commissioned by Defendants, the levels of arsenic, cadmium, lead, and mercury in Defendants' products are but a fraction of the MTLs. Plaintiff questions the reliability of these studies but has not performed any such studies on her own.

Defendants assert that the MTLs are widely accepted and relied upon in determining safe levels of heavy metals in pet food. This is based primarily on the testimony of Robert Poppenga ("Poppenga"), a veterinary toxicologist hired by Defendants to offer an expert opinion in this matter. Defendants further note that the MTA's MTLs were later cited in a 2011 Food and Drug Administration document called the Target Animal Safety Review Memorandum, which assess the potential danger of heavy metals in pet food.³ Plaintiff attempts to question the reliability of the MTLs because the MTA is old, and because the MTA itself cautions that the data on mineral toxicity in pets is incomplete, thus undermining the usefulness of the MTLs when applied to those animals. However, she fails to offer any expert opinion to counteract that supplied by Defendants.

Plaintiff does submit other forms of contrary evidence. The FDA has published a reference chart detailing the contaminant levels in various consumer food products, entitled the Total Diet Study ("TDS"). Plaintiff relies on the TDS as a comparator between the levels of heavy metals in Defendants' products versus those in consumer-bound chicken, turkey, and eggs. She notes that the heavy metal levels in these human foods are lower than in Defendants' dog food, implying that Orijen is tainted and unfit for human consumption. Defendants stress that the TDS is merely a chart; it does not purport to establish dietary limits on heavy metals in any species–human, dog, or otherwise. In fact, it contains no conclusions of any kind. Because of this, Poppenga opines that the TDS is completely unhelpful to the determination of what levels of such contaminants are safe in food.

Plaintiff has also obtained the expert opinion of Bobby Calder ("Calder"), a scholar in the field of psychology and marketing, who states that Orijen's packaging is carefully designed to convey a belief to consumers that the product is of high quality and made from fresh ingredients which are fit for human consumption. Calder avers that the packaging's design would both consciously and unconsciously influence a reasonable consumer to purchase Orijen. Calder concludes that "[t]o the extent that the Orijen ... failed to provide the high quality, fit for human consumption, biologically appropriate based on evolution, whole animal raw and fresh ingredients that their packaging led consumers to expect, consumers would have been misled[.]" (Docket # 49-14 at 11).

Finally, Plaintiff points out a number of other quality issues with Defendants' products, including the use of expired and frozen ingredients and those labeled as unfit for human consumption, the inclusion of heavily processed animal meal and rendered fats, the addition of regrinds (the ground-up remains of prior production runs of dog food), lack of regionally sourced ingredients, but rather the use of ingredients from around the globe, the presence of contaminants like hair, bugs, bones, and plastic, and the possibility that Defendants did not actually know the origin of all of their ingredients. Defendants dispute both the truth of Plaintiff's claims and, assuming their truth, their relevance. Plaintiff's complaint rests its allegations of substandard quality on one issue: the presence of heavy metals in the products. It says nothing about any of the other quality problems Plaintiff now raises.⁴

4. ANALYSIS

As noted above, the theme of this lawsuit is that while Orijen's packaging touts a healthy, fresh, regionally sourced product, containing ingredients which are biologically appropriate and fit for human consumption, the heavy metals found within it render these assertions untrue. (Docket # 1 at 3–5).⁵ Both of Plaintiff's claims which have survived to this stage of the case are based on this theme. The first claim (Count I of the complaint) asserts that Defendants have violated the Wisconsin Deceptive Trade Practices Act ("WDTPA"), Wis. Stat. § 100.18, by misrepresenting Orijen's quality, thereby inducing consumers to purchase the product at a premium price, when they either would not have paid that price or purchased the product at all. Similarly, the second claim (Count V of the complaint) contends that Defendants have been unjustly enriched by selling dog food at an inflated price which they knew was polluted with heavy metals. Defendants seek dismissal...