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Loeb v. Champion Petfoods Usa Inc

United States District Court, E.D. Wisconsin

February 6, 2019

KELLIE LOEB, Plaintiff,
v.
CHAMPION PETFOODS USA INC. and CHAMPION PETFOODS LP, 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 (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 ...


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