Stanley v. Cent. Garden & Pet Corp., CIV. CCB–11–2401.

• Decision Date: 19 September 2012
• Docket Number: No. CIV. CCB–11–2401.,CIV. CCB–11–2401.
• Parties: Dawn STANLEY v. CENTRAL GARDEN AND PET CORPORATION, and T.F.H. Publications, Inc. d/b/a Nylabone Products.
• Court: U.S. District Court — District of Maryland

891 F.Supp.2d 757

Dawn STANLEY

v.CENTRAL GARDEN AND PET CORPORATION,andT.F.H. Publications, Inc. d/b/a Nylabone Products.

No. CIV. CCB–11–2401.

United States District Court,

D. Maryland.

Sept. 19, 2012.

Barry R. Glazer, David Charles Ledyard–Marks, Law Office of Barry R. Glazer PC, Mark S. Henckel, Mallon and McCool LLC, Baltimore, MD, for Dawn Stanley.

Robert F. Redmond, Jr., Brendan D. Otoole, Turner A. Broughton, William Delaney Bayliss, Williams Mullen PC, Richmond, VA, for Central Garden and Pet Corporation and T.F.H. Publications, Inc.

MEMORANDUM

CATHERINE C. BLAKE, United States District Judge.

Plaintiff Dawn Stanley's pet, a young French bulldog named Booker, suffered an intestinal injury after ingesting a piece of a chew toy. That toy was manufactured by T.F.H. Publications, Inc. (“TFH”), a subsidiary of Central Garden and Pet Corporation (“Central Garden”), and marketed under the Nylabone trade name as the Double Action Chew Toy. Stanley alleges, among other claims, that the chew toy was defectively designed and that defendants failed to adequately warn pet owners of the medical risks associated with it. She seeks to sue on behalf of a class of persons who purchased Nylabone chew toys. She brings eight claims: (1) strict liability, (2) negligence, (3) breach of implied warranties, (4) breach of express warranties, (5) fraud, (6) violation of the Maryland Consumer Protection Act, Md.Code Ann., Com. Law. § 13–101, et seq. (“MCPA”), (7) relief under other state consumer protection laws, ¹ and (8) unjust enrichment. Now pending are the defendants' Motion to Dismiss (ECF No. 16) and the defendants' Motion to Strike Class Allegations (ECF No. 17). The motions have been fully briefed and no hearing is necessary at this time. See Local Rule 105.6. For the reasons discussed below, I will grant each motion in part and deny each motion in part.

I. Background

Stanley has owned a French bulldog named Booker since he was eight weeks old. (Am. Compl. ¶ 35). At some point, Stanley purchased a Double Action Chew Toy for Booker. ( Id.). Stanley selected the toy because of the defendants' claims about the safety and effectiveness of their products. ( Id.).

On the morning of March 27, 2011, when he was just over one year old, Booker vomited. ( Id. ¶¶ 34, 36). Stanley refrained from feeding Booker until that evening, when he vomited up his food so violently that Stanley rushed him to the Midway Animal Hospital in Millersville, Maryland. ( Id. ¶ 36). Although the hospital took x-rays, they could not locate the cause of Booker's discomfort. Unsatisfied, Stanley took Booker to the Anne Arundel Veterinary Emergency Clinic in Annapolis, Maryland. ( Id. ¶ 37). That clinic reviewed Booker's earlier x-rays and admitted him for three days for IV fluids and support. ( Id.). On March 30, Stanley fed Booker and he again vomited up his food. ( Id. ¶ 38). Stanley took him to the Bayside Animal Medical Center in Glen Burnie, Maryland. ( Id.). That center could not locate the cause of Booker's discomfort and merely gave him a shot for pain. ( Id. ¶ 39). At 2:00 the next morning, Booker began vomiting blood. ( Id.). Stanley rushed Booker to another hospital, the Falls Road Animal Hospital in Baltimore, Maryland. ( Id.). That hospital took new x-rays and concluded exploratory surgery was needed. ( Id.). During that surgery, veterinarians located a piece of the Double Action Chew Toy wrapped up and around Booker's small intestine. ( Id.).

Stanley seeks to sue on behalf of a class of pet owners who also purchased Nylabone chew toys. ( Id. ¶¶ 40–51). Stanley alleges there are “countless examples” of similar incidents, and that the defendants know of the hazards and defects in their chew toys. ( See id. ¶ 27). As one example, she cites a special report by a Houston, Texas, TV station on dogs who died after ingesting Nylabone products. ( Id.). It featured a therapy dog named Timber and a poodle named Rambo, both of whom died after ingesting pieces of Nylabone products. ( Id. ¶¶ 27–31). In Rambo's case, the veterinarian found two pieces of the chew toy in his stomach and intestine, and explained that “When the [chew toy] hung up, the intestine keeps moving and so it kind of knotted up over it like an accordion.” ( Id. ¶ 31).

Stanley alleges the defendants have known of the medical risks of their chew toys for more than a decade. ( Id. ¶ 32). The symptoms of ingesting a chew toy mimic an array of non-fatal intestinal problems, and because of their design the Nylabone chew toys are often not visible on x-rays. ( Id.). Stanley alleges the defendants have received a “massive number of complaints” about the products involving “dogs from tiny to huge and old to young.” ( Id.).

Nylabone's products are some of the best-selling pet products in the world. ( Id. ¶ 14). Its chew toys are marketed as being “especially designed” for cleaning the teeth of aggressive, powerful chewers. ( Id. ¶ 12). The Double Action Chew Toy is marketed as having “durable ends specifically designed for powerful chewers” and “dental nubs” that “help clean your dog's teeth.” ( Id. ¶ 26). On their web site, the defendants market the toy as vet recommended. ( Id.).

Guidelines for the chew toys are provided on the back of the packaging, under a tab that advises buyers to “review guidelines for more products and tips.” ( Id. ¶ 17). The guidelines state:

NON–EDIBLE CHEW PRODUCTS (Plastic, Rubber, Nylon), although non-toxic, are NOT intended for consumption. During normal chewing, tiny bristle-like projections are raised, which help clean teeth. If are ingested [sic], they should pass through. A dog should not be able to break off large pieces of any Nylabone Non–Edible Chew. If you think your dog swallowed a large piece of a Non–Edible Chew, take the chew away and contact you [sic] veterinarian for advice.

No dog chew toy is totally indestructible. Frequently inspect any chew before giving it to your dog to make sure its [sic] whole and intact, with no missing pieces. Replace a Non–Edible Chew when knuckle ends are worn down, or if it becomes too small to chew safely.

( Id.). Stanley alleges these guidelines do not adequately inform consumers of the medical risks associated with the chew toys. She claims the warnings conceal “the fact that pieces of the Chew Toys often break off and are ingested by dogs, and much of the time are invisible to veterinarians.” ( Id. ¶ 19). Stanley alleges the chew toys do not “include warnings that are specific and comprehensive as to the hazards” of their use, because, for example, they do not mention that serious injury or death could result from ingestion. ( Id. ¶¶ 22–23).

The front of the Double Action Chew Toy does not contain any indication of the medical risks associated with the toy. ( Id. ¶ 26). Instead, the middle of the packaging lists reasons why dogs need a Nylabone DuraChew ², stating the product: (1) “Discourages destructive chewing”; (2) “Fights boredom”; (3) “Helps clean teeth”; and (4) “Provides enjoyment.” ( Id.). The packaging does contain a warning in bold capital letters that: “DIFFERENT DOGS HAVE DIFFERENT CHEWING STYLES AND STRENGTHS, EVEN WITH THE SAME BREED. BE SURE TO CHOOSE THE CORRECT CHEW SIZE AND TYPE FOR YOUR DOG.” ( Id.). Beneath this, there is a list stating the product is: (1) “NON–EDIBLE: Bristles raised during chewing help clean teeth and control plaque & tartar; small shavings (no longer than a grain of rice [) ] should pass through”; (2) “DURABLE NYLON ENDS—Long lasting for powerful, determined chewers”; (3) “Dogs should not bite off large pieces—replace when worn down ...” ( Id.). The Double Action Chew Toy has both Nylabone branding and the Central Garden logo displayed on the packaging. ( Id. ¶ 12).

II. Motion to Dismiss

The defendants seek dismissal of five claims: strict liability, negligence, breach of express warranty, fraud, and unjust enrichment. They do not seek dismissal of the claims for breach of implied warranties, violation of the MCPA, and the alternative claim for relief under other state consumer protection laws.³ In addition, the defendants seek to dismiss all claims against Central Garden, because they argue Stanley failed to assert a basis for the parent company to be liable. Finally, the defendants argue some of the damages Stanley seeks are unavailable as a matter of law.

As discussed below, I will grant the motion to dismiss in part and deny it in part.

a. Standard of Review

The defendants move to dismiss five counts of the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6).

“ ‘[T]he purpose of Rule 12(b)(6) is to test the legal sufficiency of a complaint’ and not to ‘resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.’ ” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243–44 (4th Cir.1999)). To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). When ruling on a 12(b)(6) motion, the court assumes the facts alleged in the complaint are true and draws all reasonable factual inferences in the nonmoving party's favor. Edwards, 178 F.3d at 244. A complaint need not provide “detailed factual allegations,” but it must “provide the grounds of [the plaintiff's] entitlement to relief” with “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations omitted).

b. Analysis

i. Strict Liability

Stanley asserts three theories under which she argues she can recover in strict liability: (1) manufacture of an unreasonably dangerous product, (2) failure to warn, and (3)...