Rule v. Fort Dodge Animal Hosp., Inc., Civil Action No. 06-10032-DPW.

• Decision Date: 11 March 2009
• Docket Number: Civil Action No. 06-10032-DPW.
• Citation: 604 F.Supp.2d 288
• Parties: Jessica C. RULE, individually and on behalf of all others similarly situated, Plaintiff, v. FORT DODGE ANIMAL HEALTH, INC., and Wyeth Corporation, Defendants.
• Court: U.S. District Court — District of Massachusetts

604 F.Supp.2d 288

Jessica C. RULE, individually and on behalf of all others similarly situated, Plaintiff, v. FORT DODGE ANIMAL HEALTH, INC., and Wyeth Corporation, Defendants.

Civil Action No. 06-10032-DPW.

United States District Court, D. Massachusetts.

March 11, 2009.

COPYRIGHT MATERIAL OMITTED

Noah N. Rosmarin, John P. Zavez, Adkins, Kelston and Zavez, P.C., Boston, MA, for Plaintiff.

John J. Butts, Gabrielle R. Wolohojian, Wilmer Hale LLP, Boston, MA, Joshua R. Cawer, Paul Frank & Collins, Burlington, VT, for Defendants.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, District Judge.

In what appears to be an adaptation of The Adventure of Silver Blaze,¹ scripted for presentation as a complaint initiating a civil action, this case has as its protagonist Luke, a German Shepherd who suffered no harm. Luke's owner, plaintiff Jessica C. Rule, undertakes to bring a class action against the manufacturer of allegedly risky heartworm medicine that she administered to Luke, although she was unaware at the time that Luke faced any increased risk from the product. The complaint consists of a dog's breakfast of products liability, contract, and consumer protection claims under Massachusetts law. The common law and warranty claims will be dismissed principally because Rule has failed to allege any cognizable actual injury. And, although Massachusetts case law construing the meaning and significance of the term "injury" under Mass. Gen. Laws ch. 93A remains to some degree unsettled, I find no basis for extending the coverage of Chapter 93A to a claim involving a curious incident in which nothing has happened to the putative class representative's dog. Accordingly, I will grant the defendants' motion to dismiss.

I. BACKGROUND

Plaintiff Jessica C. Rule commenced this action, individually and on behalf of all others similarly situated, against Defendants Fort Dodge Animal Health, Inc. and Wyeth Corporation, seeking economic damages suffered from the purchase and injection of their pet dogs with ProHeart® 6 to prevent heartworm. The Complaint alleges five causes of action: Negligence (Products Liability and Failure to Warn) (Count I); Breach of Implied Warranty of Fitness (Count II); Breach of Implied Warranty of Merchantability (Court III); Breach of Contract (Count IV); and Violation of Mass. Gen. Laws ch. 93A (Count V). Defendants have moved to dismiss all claims.

Rule purchased ProHeart® 6 (moxidectin) and had her dog Luke injected with it two times during the period from 2002 to 2003. ProHeart® 6 is a heartworm preventative that was manufactured, distributed and/or sold by Defendants. Unlike Defendants' ProHeart®, which is orally administered to dogs on a monthly basis, ProHeart® 6 was designed to be injected by a veterinarian and to have a preventive effect of 6 months.

As part of the marketing of ProHeart® 6, Defendants issued "The ProHeart® 6 Complete Control Guarantee":²

Fort Dodge Animal Health will reimburse 100% of all diagnostic and treatment-related expenses for any dog properly treated with ProHeart® 6 that develops heartworm disease. In addition, Fort Dodge Animal Health will provide to the client through his or her veterinarian another injection of ProHeart® 6 at no cost.

Terms and Conditions

• Dogs less than six months of age are not eligible for the guarantee.

• Dogs over six months of age must have a negative antigen test on the day of initial treatment with ProHeart® 6, followed by a negative antigen test six months after treatment, and then they are fully covered. This allows for development of any pre-existing infection.

• Dogs must be treated with ProHeart® 6 according to the product label. Treatment interval must coincide with the commonly accepted heartworm treatment season in the state(s) where the dog resides or has been travelling.

• Upon diagnosis, Fort Dodge Animal Health Professional Services Department must be contacted immediately at (800) 533-8536. A precurative blood sample must be available.

• Diagnostic and treatment expenses exceeding $450 must be pre-approved by Fort Doge Animal Health Professional Services.

• Fort Dodge Animal Health reserves the right to amend, modify or terminate this complete control guarantee at any time without notice.

• Guarantee void where prohibited by law.

On or about September 3, 2004, Defendants recalled ProHeart® 6 in response to a request by the Food and Drug Administration ("FDA") due to reported adverse reactions among dogs injected with the product, including in some cases death. Rule alleges that Defendants failed to warn consumers adequately that initial field testing conducted prior to the introduction of ProHeart® 6 had resulted in adverse health effects to some of the test animals. She also alleges that after the introduction of ProHeart® 6, Defendants failed to warn consumers adequately that they were receiving numerous reports of dogs suffering adverse reactions.

There is no allegation that Luke ever developed heartworm or that he has suffered any adverse reactions from receiving ProHeart® 6. Rule claims, however, that Defendants caused economic damage to her and others similarly situated, as measured by the difference between the actual value of ProHeart® 6 and what its value would have been if it had not been defective. Rule also claims that as a direct and foreseeable consequence of breaching the Guarantee, Defendants damaged the putative class by an amount equal to the veterinary costs that any class member has paid or will have to pay in the future to prevent his or her dog from developing heartworm.

II. DISCUSSION

The standard for granting a motion to dismiss is an exacting one: "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." McLaughlin v. Boston Harbor Cruise Lines, Inc., 419 F.3d 47, 50 (1st Cir.2005) (quoting Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Nevertheless, "Rule 12(b)(6) is not entirely a toothless tiger." Dartmouth Review v. Dartmouth Coll, 889 F.2d 13, 16 (1st Cir.1989). I find Rule 12(b)(6) has bite in the canine realm of the animal kingdom as well.

A. Products Liability and Failure to Warn—Count I

In Count I, Rule alleges that ProHeart® 6 was defective because Defendants failed to warn consumers adequately of the potential adverse health effects to dogs treated with the product.³ According to Rule, Defendants were aware of the potential adverse effects, which resulted in the deaths of some dogs, both from field testing conducted before the product's release and from customer reports after the product's release. (Complaint ¶¶ 8, 10.) Rule contends that Defendants' failure to warn proximately caused economic damage to her, and to members of the putative class, as measured by the difference between the actual value of the defective ProHeart® 6 and the value the product would have had if it had not been defective. (Id. ¶ 30.)

Massachusetts law follows the traditional "economic loss rule," under which "purely economic losses are unrecoverable in tort and strict liability actions in the absence of personal injury or property damage." FMR Corp. v. Boston Edison Co., 415 Mass. 393, 395, 613 N.E.2d 902 (1993). This is consistent with the Restatement, which calls for recovery for economic loss in products liability tort actions only where that economic loss is "caused by harm to: (a) the plaintiff's person; (b) the person of another when harm to the other interferes with an interest of the plaintiff protected by tort law; or (c) the plaintiff's property other than the defective product itself." Restatement (Third) of Torts: Products Liability § 21 (1998). The rationale for the economic loss rule is that when a commercial product fails without harming persons or other property, "the resulting loss due to repair costs, decreased value, and lost profits is essentially the failure of the purchaser to receive the benefit of its bargain—traditionally the core concern of contract law." E. River Steamship Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 870, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). See also Restatement (Third) of Torts: Products Liability § 21 cmt. a ("[P]roducts liability law lies at the boundary between tort and contract. Some categories of loss, including those often referred to as `pure economic loss,' are more appropriately assigned to contract law.... [S]ome forms of economic loss have traditionally been excluded from the realm of tort law even when the plaintiff has no contractual remedy for a claim.").

Rule argues, based on a misreading of Garweth Corp. v. Boston Edison Co., 415 Mass. 303, 613 N.E.2d 92 (1993), that the Massachusetts economic loss rule is limited to cases where the defendant interfered with a contract or economic opportunity. The Garweth court stated that "[t]he traditional economic loss rule provides that, when a defendant interferes with a contract or economic opportunity due to negligence and causes no harm to either the person or property of the plaintiff, the plaintiff may not recover for purely economic losses." Id. at 306, 613 N.E.2d 92. In context within the Garweth opinion, this statement was clearly intended simply as an application of the general economic loss rule to the particular circumstances of that case, where the plaintiff had in fact alleged that the defendant had negligently interfered with the plaintiff's contractual relations. The Garweth court elsewhere more broadly defined the economic loss rule as "limiting recovery for economic losses in tort-based strict liability or negligence cases absent personal injury or physical damage to one's property." Id. at 305, 613 N.E.2d 92.

In this case, Rule acknowledges that she "seeks redress solely for economic damages." (Complaint ¶ 1.) Rule does not claim that Luke ever became infected with heartworm or suffered any adverse...