Blaszkowski et al v. Mars Inc. et al

Filing 553

RESPONSE/REPLY in Support of Motion for Summary Judgment Against Plaintiff Susan Peters Pursuant to Rule 56 filed by Natura Pet Products, Inc.. (Attachments: # 1 Declaration of Kristen E. Caverly)(York, Jeffrey)

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JOB NO: 950663 Reported By: Evan A. Ferguson, RPR Notary Public, State of Florida Esquire Deposition Services Fort Lauderdale Office Phone [phone] --------VIDEOTAPED DEPOSITION OF SUSAN PETERS --------VOLUME I PAGES 1 - 200 vs. MARS, INC., et al., Defendants. ---------------------------------/ Miami, Florida August 25, 2008 10:17 o'clock a.m. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 1:07-21221 CIV-ALTONGA/BROWN RENEE BLASZKOWSKI, et al., individually and on behalf of others similarly situated, Plaintiffs,

2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ALSO PRESENT: ROBERT PACHECO, VIDEOGRAPHER, Esquire Deposition Services. LAW OFFICES OF EDGAR R. NIELD BY: EDGAR R. NIELD, ESQUIRE, 4370 La Jolla Village Drive, Suite 640 San Diego, California 92122 858.552.6745 Appearing on behalf of the Plaintiffs. APPEARANCES:

HENDERSON, CAVERLY, LLP., BY: KRISTEN E. CAVERLY, ESQUIRE, 16236 San Dieguito Road, Suite 4-13 Rancho Santa Fe, California 92067 858.756.6342 Appearing on behalf of Natura Pet Products.

54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q They are actually humans for vitamins --

excuse me, they are actually vitamins for humans, correct? A Q A Absent the iron, yes, that is correct. What brand of vitamins do you give Odie? That varies. I do a test to determine how Right now it was one that

well it will be dissolved.

was available at Wal-Mart and it may be the Equate brand, but I am not sure. Q What is the test that you do to see how well

it will be dissolved? A You put a tablet in some vinegar, and that

represents the acidity of your stomach, and you time the breakdown of the vitamin, and if it happens in a short period of time, then it's digestible in that fashion. And there is a lot of vitamins you would be surprised will never break down. Q Other than Equate, do you recall any other

brands of vitamins that you have given to Odie? A I did try the California Natural, whatever I

their stuff was way back, it was a brief thing.

didn't feel like it did everything that I needed it to do, that would have been in 2006. But as far as an actual supplement for the meals that I am preparing, I don't remember any other

55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 brands at this time. Q A Q When did you start giving Odie human vitamins? Recently, over the last six months. How long did you use the California Natural

Supplements with Odie? A Not very long, she ate the bottle, or the

container, and I didn't buy anymore, so a week maybe. Q A Q A Q Do you mean she ate it all at one time? Yes. She got a hold of it and just ate it all? Yes. I see. MR. NIELD: BY MS. CAVERLY: Q So for the California Natural Supplements you She is very healthy.

purchased those one time, correct? A Q A Q That's right. And that was sometime in 2006, yes? Yes. From what store did you purchase the

California Natural Supplements? A Q A That would have been at PetSmart. What location? I don't remember that. I shop -- that would

have been either in Arkansas or in Oklahoma.

56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Do you have any way to narrow down what state

it was that you purchased the California Natural Supplements in 2006? A Q No, I don't. You mentioned that the California Natural

supplement didn't do everything you wanted it to do, what did you mean by that, other than he ate it all at once? MR. NIELD: So it didn't last very long. Yes, it didn't last so long.

THE WITNESS:

That was mostly it, I felt like if she was drawn to the flavor, how could I measure it out and know when she needed something, so it was just it wasn't convenient for me, it was when she learned to eat the packaging, it wasn't a good idea. didn't give it a fair try. (BY Ms. Caverly) BY MS. CAVERLY: Q There was nothing about its performance that I

you didn't like, you just thought it probably wasn't very good to use something she liked the taste of for a vitamin? A Q Yes, that's right. Okay. Are there any representations that

Natura has made related to the California Natural

57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 supplement that you feel are false? A No, I don't, I don't know. I had a coupon to

try it, and at that point I became familiar with some of the other products. Q Did you initially buy the California Natural

Supplements because you had the coupon? A Q A Q discount? A Q I don't remember. I don't know for sure. Yes. Where did you get the coupon? I don't remember. Was it a coupon for a free sample or a

Was the California Natural Supplement that you

purchased for Odie the first time that you purchased a Natura pet product? A Q Yes. Can you pinpoint any better in time when in

2006 that initial purchase of Natura Pet Products products occurred? A Q The fall of 2006. I don't know beyond that.

Do you have any receipts or any other written

evidence that would pinpoint where and when you purchased the California Natural Supplements that was your initial purchase of Natura products? A I don't believe I do.

58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Before you purchased the California Natural

Supplement product, had you ever heard of Natura Pet Products? A Q No. Is it fair to say that you first learned of

Natura's products because you got a coupon for one of the products? A Q Yes. And other than going to the store and using

the coupon to buy the California Natural product, did you do any investigation of the product before the purchase? A I did not investigate -- I did a little bit of

investigating, but I didn't investigate the other lines until after I had the supplement. Q So the fall of 2006 you got a coupon and went

to PetSmart and bought California Natural Supplements, correct? A Q Yes. You took those home, and within a few days

Odie had eaten them all; then you chose to investigate Natura's products further; is that right? A Q That's right. What did you do next as part of that

investigation?

63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 best dog food in the world or pet food in the world. I don't think that the ingredients are actually as they are advertised to be. I pretty much

feel like I could buy a Purina product over-the-counter at a lot less cost and have the same results. Q Has Natura in any fashion ever represented to

you what results you would achieve from -A Yes, they talked about it being a healthy

product, and when I see the ear infections and all of the allergic reactions in my pet, I don't believe that is the case. Q After you purchased the California Natura

supplements from PetSmart, when was the next time that you purchased a Natura product? A It would have been on the cusp of 2006/2007.

My mom and I we like to shop as our -- my mother likes to shop, I don't, so when I visit her over the holidays between Christmas and New Year's, then to help get my interest we go pet food shopping. Q So over the Christmas New Year holidays, 2006

to 2007, you and your mother went and purchased a Natura product, correct? A Q A Several. Where did you go to purchase the products? We shopped at both PetSmart and PetCo and that

64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would be in Independence, I believe it lists as a Kansas City, address but it's a suburb. Q A Q Kansas City, Kansas or Missouri? Missouri. What products did you and your mother purchase

that were manufactured by Natura Pet Products from PetSmart and PetCo at the end of 2006, beginning of 2007? A I purchased the -- it's in a yellow bag,

Innova, I probably have to look at my responses, but the red meat, the 95 percent, the canned one with chicken and turkey; the reduced fat large breed, I think that there is like seven all together, I am not sure exactly. We will have to look back at my responses to know for sure. Q Which of the seven Natura products that you

purchased did you buy from PetSmart? A Q I don't know. Which of the seven products that you purchased

did you buy from PetCo? A Q I don't know. Other than PetSmart and PetCo, have you ever

purchased a Natura manufactured or distributed product from any other store? A I don't believe so.

65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And were your purchases -- Strike that. Other

than the purchase of the California Natural Supplements in the fall-ish timeframe of 2006, in this period of time during the holidays of 2006 to 2007, have you ever purchased a Natura Pet Product manufactured or distributed by them? A Q I don't believe so. Was it on a single day that you bought the

seven or so products from PetSmart and PetCo? A I can't say that for sure. It was over the

holiday period, so I don't know that for sure. Q Either on the same day or within a few days of

each other, correct? A Q Yes. What was your purpose in buying so many

different Natura Pet Products during that short period of time? A I don't like to shop. I didn't buy -- I was

purchasing -- I don't like to shop, I went with my mom, and I bought an array to take home, and should have lasted my dog quite - until I could get back for my mom's birthday and we could do it again. Q A Q How long a period is that? About four months, three months probably. Why did you buy so many different varieties?

77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 meat as a replacement for home cooked or as a supplement to home cooked do you find false? A I wouldn't use natural flavors, I don't know

what natural flavored -- that is an added ingredient or it wouldn't be added to the list of ingredients. There is potatoes that -- there is potatoes, there is garlic, there is a number of ingredients that are toxic to pets if they are not prepared correctly. And when I learned that kitchen isn't necessarily at Nutro and that they are not in control of what is being produced, that and like I said my dog didn't care for it, it was not a product that she enjoyed, but, no, I think it's very disappointing to read the label. I think it's very false in its representation, it's not what I would fix at home or recommend to you to fix at home. Q misspeak? A sorry. Q When you went to the stores where you bought I am sorry, I did, I meant Natura, I am very You just said in your answer Nutro, did you

the Natura product, the PetCo and PetSmart, how did you decide while you were standing there what Natura products to purchase?

78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I had researched the company, but it was I felt that one product should

strictly the packaging.

be equal to the next through the same company, and so it was just size, portion, container size, packaging size, and just packaging more than anything, maybe how tall I am versus where it was on the shelf. Q Did you purchase all of the Natura products

that PetCo and PetSmart carried or only certain of them? A Q Certain, I selected certain of it. And you made that selection based on the

packaging that you were looking at that held the food, correct? A I would say so, it was just whatever grabbed I knew there were a couple of Other than that it was

my attention at the time.

them I that I did want to try. just what was accessible. Q

What were the couple that you knew you wanted

to try when you went into the store? A The large breed puppy formula, and I wanted

the original, and then I just grabbed a can of the homemade, the 95 percent, because it said that about the homemade. Q And did it say that about the homemade on the

product that you actually purchased? A I am pretty sure it did.

80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Natura made that caused you to want to buy the original Innova formula for your dog? A Q A Q It was the original one. Anything else? No. And for the large breed, was there a

particular representation that Natura made that you were aware of that caused you to want to buy that particular formula for your dog? A Yes, they recognized - the company recognized

that a large dog didn't just need more food, it did need more nutrients and not just a lot of carbs and what have you. Q Anything else that Natura said that you relied

on in deciding to purchase the large breed puppy formula? A Q That's all that stands out in my mind now. And for the 95 percent, is there any

representation other than that it could be a supplement or replacement to home cooked meals that you relied on in deciding to buy that product? A Of course I believed in the product name, but

not the individual -- not just the 95 percent, no, other than the homemade. Q Now, when you went to the store, PetCo and

81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PetSmart to buy the Natura products that you tried, did you read the ingredient list on any of the products before you purchased them? A Q A of them. Q In terms of knowing what you are feeding to Yes. On all of them or just some? I know I did on at least some and probably all

your pets you advise your readers to read the ingredient list, correct? A Q Yes. Do you think that that is a key way that

consumers can be informed about what products they are buying? A Q Not necessarily. How other than reading the ingredient list

would you think a consumer could be well informed about a pet food that he or she is buying? A There is a lot of information not given to the I don't know what to

consumer that they need to learn. tell them, where to turn to.

There is a lot of by-products that are put into pet foods that can be listed as something else and you will never see them, you don't know. Q Let's start with the original Innova formula

96 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Whereupon, the above referred to document was marked as Plaintiff's Exhibit No. 1.) BY MS. CAVERLY: Q If you would take a look at those for me, and

see if you recognize that those are the answers that you prepared for the interrogatories in this case. MR. NIELD: That is just the service list, you

need to go back a few pages here. That is just the instructions. where it says interrogatories. BY MS. CAVERLY: Q You don't need to read them all to yourself It starts

right now, just familiarize yourself with the document to see if you recognize those as being your responses and then we will go through them individually in more detail. A Q Yes. On the last page of these interrogatories that

I have marked as Exhibit 1, did you see your signature there? A Q Yes. And before you signed this verification

stating under penalty of perjury that the responses to these interrogatories were correct, you reviewed them carefully, didn't you?

97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Yes. And in fact all of the responses to these

interrogatories you believe as you sit here today are true and correct; is that right? A With the exception to the California

Supplement not being listed. Q A Q Yes, you recalled that today, correct? Yes. Other than that, nothing that we have talked

about or that has happened since you signed this verification on June 29th, 2008, leads you to think that anything in these interrogatory responses is false; is that right? A Q That is correct. If you would go to page 32 of Exhibit 1 for

me, do you see that in the middle of the page where it starts and it says food Odie ate? A Q Yes. And then there is a list of food that goes on

through to page 41, do you see that? A Q Yes. That is a correct representation of all of the

foods that you have fed to your dog Odie, correct? MR. NIELD: answer it again. Asked and answered. You can

104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And in your list if we go over to PetCo that Can you identify for me which of

starts on page 31.

these PetCo stores which you bought the Natura dog food products that you have previously testified to? A Q No. Didn't you tell me it was with your mother in

Kansas City, Missouri? A It was with my mother in Missouri. Whether it

was Kansas City or Independence, oh, I'm sorry, I should have said better. Then, yes, I can identify it, PetCo,

I was looking at PetSmart. Q So for PetCo your testimony is that you bought

the Natura products that you fed to your dog Odie at the PetCo located at 4802 Noland Road Kansas City, correct? A Q That is correct. Now, for PetSmart - it sounds like you are a

ahead of me already on your answers - can you tell which of the list of PetSmart stores you purchased Natura Pet Products in? A It would be either Independence or Kansas

City, but which one I am not sure. Q So it's either the PetSmart store located at

4010 South Bolger Drive, Independence or the PetSmart store located at 4802 Noland Road, Kansas City, correct? A Correct.

105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q PetCo and PetSmart are located at the exact

same location? A Q A Q No, no. Are they? No, that is an error.

That is a mistake? Yes. Do you know which store, if either of these

PetSmart or PetCo, is located on Noland Road? A They both are, but I don't know which store,

they are not in the same location. Q But they are located near to each other on the

same strip? A Q Uhm-hum, yes. Does the fact that you bought the products

close in time to each other and that those two stores are located on the same street refresh your memory that you bought them both on the Noland Road locations? A Q No. Okay. If you turn to page 41 in your

interrogatory responses, please. You have a list starting Food Bruno and Meeko Ate about two thirds down the page; do you see that? A Q Yes. Now, when were you testifying earlier I

thought you had told me that those two dogs ate only Diamond food while you owned them?

126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about what is in paragraph 5, I am not going to stop her from answering proper questions, but that last question was improper. MS. CAVERLY: Can you find the question?

(Whereupon, the above referred to question was read back by the Court Reporter.) MR. NIELD: That wasn't the question, you can Again, it's the attorneys,

answer that question.

the author of the complaint, but go ahead, if you can answer it. THE WITNESS: BY MS. CAVERLY: Q Why between the filing of the Fourth Amended No, that is not correct.

Complaint in April of 2008 and your submitting responses to interrogatories in June of 2008, did you suddenly identify Natura Pet Products as a manufacturer from whom you had purchased products? MR. NIELD: That lacks foundation, calls for

speculation, it may seek attorney-client information. If you actually did that, go ahead

and answer the question. THE WITNESS: I didn't suddenly include them,

they have been included all along. (BY Ms. Caverly)

127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MS. CAVERLY: Q They are not included in Exhibit 2 at

paragraph 5 which sets forth the Defendants who you purchased product from, are they? A I -MR. NIELD: Well, it lacks foundation, calls

for speculation, it's vague and ambiguous, overly broad and argumentative, but you can answer the question. THE WITNESS: item 5. I don't see a detailed list in

I do not feel that with the mention of

PetSmart and PetCo that Natura was not included. (BY Mr. Nield) MR. NIELD: BY MS. CAVERLY: Q Is it your position that because the retailers You have answered the question.

PetSmart and PetCo where you assert that you purchased Natura products are included in paragraph 5 that it was your intention to name Natura Pet Products as one of the products that you personally were suing over? MR. NIELD: That is another -- it's another

improper question, it lacks foundation, calls for speculation, assumes facts not in evidence. getting into attorney-client privilege. MS. CAVERLY: You don't need to instruct -It's

215 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (BY Mr. Nield) MR. NIELD: Exhibit? MS. CAVERLY: MR. NIELD: this? THE WITNESS: break time? MS. CAVERLY: a break. THE WITNESS: MS. CAVERLY: I would like one. Certainly. Going off the video record If you need a break, we can take Are we anywhere near another Yes. Are you done with I'm sorry, counsel, was that an

Oh, here it is.

THE VIDEOGRAPHER: 4:53 p.m.

(Whereupon, a short recess was had.) THE VIDEOGRAPHER: We are now back on the

video record 5:11 p.m., Tape Number 5. (BY Ms. Caverly) BY MS. CAVERLY: Q Ms. Peters, when you purchased the Innova and

Evo products that you bought from PetSmart and Petco at the end of 2006, beginning of 2007, did you pay for those products or did your mother? A Q I did. How did you pay?

216 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Cash. It is possible that it could have been Each company has a pet perk

on my mother's receipt.

type little membership card, the more you purchase with them, the more benefit that they -- the purchaser receives, so it's possible I used her card. Q correct? A I do, but we don't have store locations near You don't have one of those cards yourself,

us, and my mom would benefit more from it than I would. Q A Q What is your mother's name? Carmen, C-A-R-M-E-N, Crail, C-R-A-I-L. Is there some reason that you paid cash for

these purchases, because they would add up to a considerable amount? A Q I always do. Does your mother, she has a card that you used

at both PetSmart and Petco? A She has a card at both PetSmart and Petco. I

most likely used her card. sure. Q

I don't really remember for

For your own card, do you have a card at both

Petco and PetSmart? A Q No. Do you have a card at either, a frequent buyer

card at either of those stores?

217 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Yes. What is the name on your account? MR. NIELD: stores? THE WITNESS: BY MS. CAVERLY: Q Let's start with PetSmart, do you have a Yes. I don't -Do you have a card for both

frequent buyer card in your own name for PetSmart? A I am going to assume it's in my name, it's not

embossed to tell me. Q Okay. If I can look at it I will just take

down the little bar code, because that is probably what they would look at to tell them whose card this is. Ms. Peters has given me her PetSmart Pet Perks card, and the number under the bar code is 44008045320. Thank you. And Ms. Peters has also given me her Petco Palls Card. The number on the back of that card under

the bar code is 318254210. Is it your practice at Petco to always use either yours or your mother's frequent buyer card? A I rarely use mine. I don't shop enough to get

the perks, but for my mom I will, I will use hers. Q So when you are with your mother at Petco you

would use her frequent buyer card, correct?

218 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Q Yes. And when your mother -- Strike that. When you

are with your mother at PetSmart it's your practice to use her frequent buyer card at that store, correct? A Correct. (Whereupon, the below referred to document was marked as Plaintiff's Exhibit No. 13.) (BY Ms. Caverly) BY MS. CAVERLY: Q Show you what I will mark as Exhibit 13, Bates

numbered Plaintiff Peters 471 through 474. Do you recognize this as a review that you posted on the Internet related to California Natural Chicken & Brown Rice? A Q page 1: "I have trouble getting behind a pet food which the company has a class action filed against them for false advertising." Do you see that sentence? Yes. Nowhere in this review do you tell your Yes. At the beginning of this review you write on

readers that you are a Plaintiff in that class action, do you?

248 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 taken them to the vet? A Q No. Did the price that you paid for the Natura Pet

Products that you purchased have any bearing on your purchase? A Q No. Can you recall whether you spent say $20, $50,

$100, $200 or any estimate of what you spent on the Natura products that you bought at the end of 2006, beginning of 2007 at PetSmart or Petco? A Q I don't know. Do you even have any sense in your mind that

they were expensive or inexpensive relative to the other foods that you had to choose from? MR. NIELD: It's vague and ambiguous. I don't recall how it was

THE WITNESS: priced. BY MS. CAVERLY: Q A Q

Price was not a concern to you, correct? That is correct. Do you feel that you got any benefits at all

from the Natura Pet Products that you fed to Odie? A Q No. Odie did stay Aleve for three or four months

eating those foods, correct?

270 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Sworn to and subscribed before me this ____ day of ________, 2008. _________________________________ Notary Public My Commission expires: ______________ (DATE) ________________________ (NAME) READING AND SIGNING

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SIGNATURE_________________________

272 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 September 6, 2008 TO: SUSAN PETERS, DEPONENT C/O PATRICK N. KEEGAN, ESQUIRE 4370 La Jolla Village Drive, Suite 640 San Diego, California 92122 RE: Blaszkowski vs. Mars, Inc., et al. CASE NO. 1:07-21221 CIV-ALTONGA/BROWN Please take note that on Monday, the 25th day of August 2008, you gave a deposition in the above referred to matter. At that time, you did not waive signature. It is now necessary that you sign your deposition. As previously agreed to, the transcript will be furnished to you through your counsel. Please read the following instructions: At Page 271 you will find an errata sheet. As you read your deposition, any changes or corrections that you wish to make should be noted on the errata sheet, citing page and line number of said change. DO NOT write on the transcript itself. Once you have read the transcript and noted any changes, be sure to sign and date the errata sheet and return these pages in the self-addressed envelope that has been provided for your convenience. You need not return the entire transcript. If you do not read and sign the deposition within thirty (30) days, the original, which has already been forwarded to the ordering attorney, may be filed with the Clerk of the Court. If you wish to waive your signature, sign your name in the blank at the bottom of this letter and return it to us. Very truly yours, Evan A. Ferguson (Esquire Deposition Services) I do hereby waive my signature. _____________________________ SUSAN PETERS cc: via transcript: KRISTEN E. CAVERLY, ESQUIRE