The District Court Chief Judge for the US District Court for the Southern District of Illinois ruled Friday that the majority of a series of motions brought against Purina Animal Nutrition LLC and Texas Farm Product Company (TFPC) will be allowed to proceed. However, the order did grant the motion to dismiss some parts of the lawsuit.
“The Court grants the Motion to Dismiss as to two counts, and denies the motion as the other seven counts,” said Chief Judge Michael Reagan in his order.
The case was brought against the two companies by Veath Fish Farm of Evansville, Illinois in March.
When contacted, Purina Animal Nutrition told us the company had no comment on the matter.
“We believe the Veath’s claims to be well-supported by law and by the facts,” Veath’s lawyer William Niehoff told us when the motion to dismiss was filed. “It is not unusual for a defendant to file motions to dismiss at the early part of a case.”
Veath Fish Farm brought the lawsuit against Purina Animal Nutrition and TFPC alleging several charges including fraud, breach of express and implied warranties and negligence, according to the complaint.
The fish farm said that it bought and used two of Purina’s fish feeds, AquaMax Sport Fish 500 and AquaMax Sport Fish 600, with its fish for several years. However, it alleges in its complaint, that when production of the feed was taken over by TFPC the feed was altered or reformulated.
No notice was given when the production facility changed, or when the product was altered, the farm claimed in its complaint. The feed continued to be reported as safe for use with largemouth bass.
In June 2015, the company had about 360,000 fish of differing ages and sizes in production. However, the change in feed composition allegedly resulted in a higher digestible carbohydrate amount than what fish can use and allegedly caused damage to the liver of largemouth bass, the farm claimed in its complaint. By April 2016, a large amount of its fish died.
Purina and TFPC asked for the lawsuit brought against them to be dismissed in May, according to case documents.
Elements dismissed and continuing
In the lawsuit, Veath Farms brought nine counts against the two companies, the judge said in his order.
In reviewing the request to dismiss, the examination checked that it was feasible in some situation that, given the facts alleged in the case, a “viable claim could exist,” the judge said.
The elements of the case that were allowed to continue include those pertaining to the Illinois Consumer Fraud Act; the breach of implied warranty of merchantability; and counts of negligence, the judge said. A count brought specifically against Purina regarding breach of express warranty also was allowed to continue.
However, two of the counts are set to be cut from the case as the request to dismiss for those items was approved, he said. The two counts dismissed from the case were related to the breach of an implied warranty of fitness for a particular purpose.
“After a thorough review of the pleadings, the Court is left with many uncertainties about the applicability of various exceptions to this case,” the judge said. “However, the uncertainties are not a result of a deficient complaint, so much as they are a result of the interchangeable viability of many different theories of relief in consumer fraud, contract, and tort.”
A bench trial has been set for December 17 before Chief Judge Reagan.