Link: BIETSCH v. SERGEANT’S PET CARE PRODUCTS, INC., Case No. 15-cv-5432 (N.D. Ill., Sept. 19, 2018).
Plaintiff, represented by Siprut PC, brought a class action alleging that Defendant’s pet treats caused their dogd to fall ill under the Magnuson-Moss Warranty Act, the Illinois Consumer Fraud Act, and 10 other states’ consumer fraud laws as a nation-wide class. The allegations are basically that the dog treats failed to break down within dogs’ digestive tracts and as a result caused digestive issues.
The court denied Plaintiff’s motion for class certification under 23(b)(2) for injunctive relief and 23(b)(3) seeking monetary damages in the form of a full refund. The court also ruled on evidentiary issues related to expert witnesses brought under FRE 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
Judge Sara L. Ellis ruled that Plaintiff could not meet their burden of showing that the treats were defective and unsafe, because their own expert wouldn’t say they were categorically unsafe and thus the court had no basis upon which to conclude that the treats are so unsafe that no reasonable consumer would purchase them. The court also rejected the 23(b)(2) injunction as untenable from a judicial enforcement standpoint and would require the court to create a standard for evaluating the safety of the reformulated treats.
The court noted the Plaintiff is up against a rough burden as to damages (apologies for the pun; I had to):
Plaintiffs likely wonder what evidence would be sufficient to meet this burden. The Court does not have an answer for that hypothetical question, but merely notes that on the facts of this case sufficient common proof is likely hard to come by. As other courts have noted, “Proving a class-wide defect where the majority of class members have not experienced any problems with the alleged defective product, if possible at all, would be extremely difficult.” Mahtani v. Wyeth, No. CIV.A. 08-6255 KSH, 2011 WL 2609857, at *8 (D.N.J. June 30, 2011) (citation omitted) (internal quotation marks omitted) In trying to argue that a product is categorically unfit for dogs to eat, when very few dogs have experienced ill effects eating it, Plaintiffs are attempting to cross a wide gap, and as such, need a strong bridge.