Knapp v. Zoetis Inc.

Filing 20

MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 3/31/21. (khan, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ASHLEY KNAPP, on behalf of herself
and all others similarly situated,
Plaintiff,
v.

Civil Action No. 3:20cv191

ZOETIS INC.,
Defendant.
MEMORANDUM OPINION
This matter comes before the Court on two motions:
(1)

Defendant Zoetis Inc’s (“Zoetis”) Motion to Dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6)1 (“Motion to Dismiss”), (ECF No. 4); and,

(2)

Zoetis’s Motion to Strike Class Allegations (the “Motion to Strike”), (ECF
No. 6);

Plaintiff Ashley Knapp responded in opposition to the Motion to Dismiss and the Motion
to Strike, (ECF Nos. 15, 16), and Zoetis replied, (ECF Nos. 18, 19).
The matter is ripe for disposition. The Court dispenses with oral argument because the
materials before it adequately present the facts and legal contentions, and argument would not
aid in the decisional process. The Court exercises jurisdiction pursuant to 28 U.S.C. §§ 1332(a)
and (d).2 For the reasons that follow, the Court will grant in part and deny in part the Motion to
Dismiss and grant the Motion to Strike.

Rule 12(b)(6) allows dismissal for “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6).
1

“The district courts shall have original jurisdiction of any civil action in which the
matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs,
and is a class action in which . . . any member of a class of plaintiffs is a citizen of a State
2

I. Factual3 and Procedural Background
This seven-count product liability action arises from a veterinarian’s use of Excede, a
Zoetis-developed equine antibiotic, on Knapp’s horse Boomer. Knapp alleges that after the
veterinarian administered Excede to Boomer, the horse developed serious medical complications
leading to “persistent lameness” and permanent damage to the “musculature in his neck.”
(Compl. ¶ 24.) Knapp alleges that Zoetis had knowledge of similar negative reactions to Excede
between 2012 and 2019, but “has not disclosed or adequately warned of Excede’s danger to
horses.” (Id. ¶¶ 22–23.)

different from any defendant.” 28 U.S.C. § 1332(d)(2)(A). Knapp, a citizen of Virginia, brings
this class action against Zoetis, a citizen of Delaware and New Jersey. (Compl. ¶¶ 2, 3, ECF
No. 1.) The Complaint seeks damages in excess of $6,500,000.00. (Id. 20.) The Court exercises
diversity jurisdiction over Knapp’s individual claims arising under Virginia law. See 28 U.S.C.
§ 1332(a) (“The district courts shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between . . . citizens of different States.”).
3

Although Zoetis purports to bring its Motion to Dismiss pursuant to Rule 12(b)(6),
Zoetis also challenges Knapp’s ability to assert her claims arising under New Jersey law,
questioning her standing and this Court’s subject matter jurisdiction. Generally, challenges to
standing are addressed under Federal Rule of Civil Procedure 12(b)(1). CGM, LLC. v. BellSouth
Telecomm., Inc., 664 F.3d. 46, 52 (4th Cir. 2011).
Under Rule 12(b)(1), when a defendant asserts that the complaint fails to state a claim
upon which subject matter jurisdiction can lie, the Court assumes the truth of the facts alleged by
plaintiff. See Int’l Longshoremen’s Ass’n, S.S. Clerks Local 1624, AFL-CIO v. Virginia Int’l
Terminal, 914 F. Supp. 1335, 1338 (E.D. Va. 1996); see also Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982). Similarly, for the purpose of the Rule 12(b)(6) Motion to Dismiss, the
Court will accept the well-pleaded factual allegations in Knapp’s Complaint as true, and draw all
reasonable inferences in favor of Knapp. Kensington Volunteer Fire Dep’t, Inc. v. Montgomery
Cnty., Md., 684 F.3d 462, 467 (4th Cir. 2012) (“a court ‘must accept as true all of the factual
allegations contained in the complaint’ and ‘draw all reasonable inferences in favor of the
plaintiff’”) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th
Cir. 2011)). Therefore, applying the standards of review set forth in 12(b)(1) and 12(b)(6), the
Court will assume the truth of the facts alleged by Knapp in the Complaint.
2

A.

Factual Background

Zoetis, the world’s largest “animal health company,” “manufactures and distributes an
injectable, extended release antibiotic for equines with the brand name Excede.” (Compl. ¶¶ 3–
4.) Zoetis markets Excede “as treating equine respiratory infections with a ‘two dose, one
solution’ treatment.” (Id. ¶ 34.) Veterinarians also prescribe Excede “for off-label uses.” (Id.)
1.

Boomer Experiences an Adverse Reaction to Excede

Knapp owns Boomer, a seven-year-old Hanoverian gelding, who “was at all relevant
times stabled at a boarding facility known as Linmoorland Farm located in Gloucester, Virginia.”
(Compl. ¶ 8.) On August 13, 2016, Boomer began to suffer from leg swelling while at
Linmoorland Farm. (Id. ¶¶ 9–10.) A veterinarian (the “Linmoorland Veterinarian”) was
immediately called “to examine, diagnose, and treat Boomer” and “[a]s a part of the treatment
. . . administered an injection of Excede to Boomer.” (Id. ¶¶ 11–12.) Within an hour of
treatment with Excede, “Boomer began to show signs of extreme pain, including abnormal
vocalization (screaming whinny), abnormal sweating, spinning in his stall, striking out, buckling
of the hind end and inability to walk normally, stretching and turning his neck repeatedly, and
biting at the air with his teeth bared.” (Id. ¶ 13.) The Linmoorland Veterinarian returned to the
stable and observed that Boomer was becoming “increasingly lethargic and was unable to raise
his head normally. . . . [his] gums had turned white, and a toxic line had appeared.” (Id. ¶ 15.)
The Linmoorland Veterinarian referred Boomer to Blue Ridge Equine, a nearby animal hospital,
“for emergency treatment.” (Id. ¶¶ 16–17.) There, the treating veterinarian “diagnosed Boomer
with a reaction to the Excede injection, and . . . ruled out colic as a source of Boomer’s
symptoms.” (Id.) “Boomer was treated for his symptoms at Blue Ridge for two days, and during

3

the course of that treatment, an ultrasound detected a pocket of fluid on the neck at the injection
site.” (Id. ¶ 18.)
Boomer returned to Linmoorland Farm two days later, on August 15, 2016, and “was
observed standing abnormally with his hind legs underneath him, which is an indication of pain
and discomfort.” (Id. ¶ 19.) “Over the ensuing days, a large of patch of swelling and leathery
skin spread over most of the left side of Boomer’s neck.” (Id.)
Knapp states that prior to treatment with Excede “Boomer was a successful, young show
hunter” but he has since “experienced persistent lameness, and the musculature in his neck has
been permanently damaged.” (Id. ¶¶ 24, 26.) “Consistent veterinary treatment . . . has been
unable to return Boomer to soundness necessary for a performance horse.” (Id. ¶ 25.)
2.

Excede Causes Similar Adverse Reactions in Other Horses

On August 18, 2016, Knapp “notified Zoetis of Boomer’s severe reaction to the Excede
injection.” (Compl. ¶ 20.) In response, Dr. Maureen Dower of Zoetis informed Knapp “that a
similar reaction had occurred on or about October 29, 2014 to a horse located in Vermont.” (Id.
¶ 21.) Knapp alleges that “numerous other similar reactions, including ones with fatal outcomes,
have occurred throughout the country and have been reported to Zoetis since at least 2012 and
continued through 2019, including several recent severe or fatal reactions in the Charlottesville
and Middleburg areas of Virginia.” (Id. ¶ 22.) Knapp asserts that from 2010 through December
2018, “nearly 600 adverse reaction reports were made by Zoetis to the FDA for Excede reactions
experienced by horses in the United States.” (Id. ¶ 28.)
Knapp states that equine reactions to Excede “have included fatal reactions, internal
hemorrhaging, anaphylaxis, other systemic-type reactions, and site reactions ranging from
debilitating to minor with complications that have included, but are not limited to swelling,

4

muscle damage, pain, and scarring at the injection site.” (Id. ¶ 29.1.)4 Knapp alleges that, while
the severity of the reaction and symptoms varied in each individual case, “[i]n many of these
instances . . . the affected horses were provided with extensive and expensive veterinary care and
the owners of the animals have had to absorb those costs as well as the diminished value
associated with those horses.” (Id. ¶ 29.2.) “On information and belief, the veterinary bills for
each of the majority of the approximately 600 afflicted horses would have been well into the
thousands, and in some of the more extreme cases, in excess of $10,000.00.” (Id. ¶ 30)
3.

Zoetis Becomes Aware of Excede’s Harmful Effects

Knapp alleges that “Zoetis was made aware of these adverse reactions, and the resulting
veterinary costs and diminished value of the afflicted horses.” (Compl. ¶ 31.) Despite this
knowledge, “Zoetis has refused to revise Excede’s warning label and prescribing information to
reflect the significant negative post-approval experience.” (Id. ¶ 32.2.)5 As a result, the majority
of “consumers and prescribing veterinarians are left with no way of knowing of the considerable
risk associated with the administration of Excede.” (Id.)
Knapp alleges that Zoetis also made a number of affirmations about and descriptions of
Excede, including that:
a. Excede provides peace of mind knowing that the antibiotic has been
demonstrated to be safe and effective in horses.
b. In a safety study, swelling [at the injection site] completely resolved within 7
days in the majority of cases.
c. Excede makes the treatment process less stressful for you and your horse.

4

There are two paragraphs labeled 29 in the Complaint. The Court modifies the original
numbering to reflect which paragraph is first, and which is second.
5

There are two paragraphs labeled 32 in the Complaint. The Court again modifies the
original numbering to reflect which paragraph is first, and which is second.
5

d. Excede may cause some transient swelling and edema around injection site.
e. No cases of necrosis, abscess or drainage were reported in the clinical studies.
(Id. ¶ 83 (internal quotations omitted).) Knapp asserts that Excede “did not conform to Zoetis’[s]
express representations because an injection of Excede caused serious harm, stress, and
permanent damage to Knapp’s horse when used as recommended and directed.” (Id. ¶ 85.)
B.

Procedural History

On March 23, 2020, Knapp filed her twenty-one-page Class Action Complaint in this
Court, bringing seven counts against Zoetis:
Count I:

The Negligence Claim:6 Zoetis “failed to exercise ordinary care in the
design, formulation, manufacture, sale, testing, quality assurance, quality
control, labeling, marketing, promotions and distribution of Excede into
interstate commerce” and that negligence caused “Knapp, and others
similarly situated [to] sustain[] damages to their horses;”

Count II:

The Failure to Warn Claim (New Jersey Law): Zoetis, while “aware of
the dangers posed by Excede,” failed to “to provide an informative,
accurate, and adequate warning label” in violation of the New Jersey
Product Liability Act;

Count III:

Defective Design and Manufacture (New Jersey Law): Zoetis created
Excede so that it was “unreasonably dangerous for the use in horses to
which it would ordinarily be put and for its foreseeable purposes” in
violation of the New Jersey Product Liability Act;

Count IV:

Breach of Express Warranty (New Jersey Law): Zoetis “expressly
warranted that the Excede antibiotic was safe and reasonably fit for its
intended use in the treatment of horses through its information containing
affirmations of statements of facts, promises, and descriptions regarding the
product” but Excede “did not conform to Zoetis’ express representations”
in violation of the New Jersey Commercial Code;

Count V:

Breach of Implied Warranty (New Jersey Law): Zoetis “knew of the

6

Knapp does not specifically allege whether her negligence claim arises under New
Jersey or Virginia law. Although it appears she brings her Negligence Claim as a class claim
under New Jersey law, reading Knapp’s Complaint broadly, the Court will assume she asserts
her Negligence Claim in Count I pursuant to both New Jersey and Virginia law.
6

use for which Excede was intended and impliedly warranted that it was of
merchantable quality and safe for such use and reasonably safe” but “was,
in fact, unfit and unmerchantable and unreasonably dangerous for its
foreseeable and intended uses” in violation of the New Jersey Commercial
Code (collectively with Counts II, III, and IV, (the “New Jersey Claims”));
Count VI:

Breach of Express Warranty (Virginia Law): Knapp, on behalf of herself
only, asserts that Zoetis “expressly warranted that the Excede antibiotic was
safe and reasonably fit for its intended use in the treatment of horses” yet
Excede “did not conform to Zoetis’ express representations because an
injection of Excede caused serious harm, stress, and permanent damage to
Knapp’s horse when used as recommended and directed;”

Count VII:

Breach of Implied Warranty (Virginia Law): Knapp, on behalf of herself
only, asserts that Zoetis “knew of the use for which Excede was intended
and impliedly warranted that it was of merchantable quality and safe for
such use and reasonably safe” yet Excede “was, in fact, unfit and
unmerchantable and unreasonably dangerous for its foreseeable and
intended uses.”

(Compl. ¶¶ 55, 59, 62, 65, 68, 73, 75, 78–79, 83, 85, 88–89.) For her class claims in Counts I
through V, Knapp seeks $6,500,000.00 and punitive damages. (Id. 20.) As to her individual
claims in Counts VI and VII, Knapp seeks $150,000.00 in damages. (Id.)
In Counts I through V, purportedly brought under New Jersey law, Knapp seeks to
maintain a class action on behalf of herself and all others similarly situated. Knapp seeks to
maintain her class claims
pursuant to N.J. Stat. § 2A:58C-2 through N.J. Stat. § 2A:58C-5, individually, on
her own behalf, and on behalf of a class of horse owners who, during any time
within the liability period of 2010 to present: 1) owned horses that suffered adverse
complications caused by the administration of Excede; and/or 2) were charged for
the veterinary and other treatment of horses affected by Excede; and/or 3) owned
horses whose fair market value was diminished or eliminated as a result of the
negative effects of the administration of Excede.
(Id. ¶ 39.) In support of her decision to bring the class claims under New Jersey law, Knapp
states that “[c]ertification of a class of affected horse owners, all proceeding under Zoetis’s home
state law of New Jersey Law is the most efficient and economical means of resolving the

7

questions of law and fact which are common to the claims of the Class Representatives and the
proposed class.” (Id. ¶ 40.)
Zoetis filed its Motion to Dismiss, asserting that Knapp lacked the ability to bring any
claims under New Jersey law because Virginia law governed her injury and otherwise
challenging the sufficiency of her claims. (ECF No. 4.) Zoetis also filed the Motion to Strike,
contending that Knapp’s class allegations were facially deficient. (ECF No. 6.) Knapp
responded to both the Motion to Dismiss and the Motion to Strike arguing that the Court need
not conduct a choice-of-law analysis at this procedural posture and arguing that she had pleaded
sufficient facts to support her claims. (ECF Nos. 15, 16.) Zoetis replied. (ECF Nos. 18, 19.) For
the reasons articulated below, the Court will grant in part and deny in part the Motion to Dismiss,
and grant the Motion to Strike.
II. Standards of Review
A.

Federal Rule of Civil Procedure 12(b)(1)

Federal district courts are courts of limited subject matter jurisdiction. United States ex
rel. Vuyvuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009) (citing Exxon Mobile Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 552 (2005)). This Court must, as a result, determine
whether it has jurisdiction over the claims at issue. See Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 94–95 (1998) (“The requirement that jurisdiction be established as a threshold
matter ‘spring[s] from the nature and limits of the judicial power of the United States’ and is
‘inflexible and without exception.’”) (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S.
379, 382 (1884)). “The objection that a federal court lacks subject-matter jurisdiction . . . may be
raised by a party, or by a court on its own initiative, at any stage in the litigation . . .” Arbaugh v.
Y & H Corp., 546 U.S. 500, 506 (2006) (citing Fed. R. Civ. P. 12(b)(1)).

8

In a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenging the
Court’s subject matter jurisdiction, the burden rests with the plaintiff, as the party asserting
jurisdiction, to prove that federal jurisdiction is proper. See Int’l Longshoremen’s Ass’n, 914 F.
Supp. at 1338 (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936);
Adams, 697 F.2d at 1219). A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) can attack
subject matter jurisdiction in two ways. Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009). First, a Rule 12(b)(1) motion may attack the complaint on its face, asserting that the
complaint fails to state a claim upon which subject matter jurisdiction can lie. See Int’l
Longshoremen’s Ass’n, 914 F. Supp. at 1338; see also Adams, 697 F.2d at 1219. In such a
challenge, a court assumes the truth of the facts alleged by plaintiff. See Int’l Longshoremen’s
Ass’n, 914 F. Supp. at 1338; see also Adams, 697 F.2d at 1219.
Alternatively, a Rule 12(b)(1) motion may also challenge the existence of subject matter
jurisdiction in fact, apart from the pleadings. See Richmond, Fredericksburg & Potomac R.R.
Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); Int’l Longshoremen’s Ass’n, 914 F.
Supp. at 1338; see also Adams, 697 F.2d at 1219. In such a case, because a party challenges the
court’s “very power to hear the case,” the trial court is free to weigh evidence to determine the
existence of jurisdiction. Int’l Longshoremen’s Ass’n, 914 F. Supp. at 1338 (quoting Mortensen
v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). No presumptive truthfulness
attaches to the plaintiff’s allegations, and the existence of disputed material facts will not
preclude the trial court from evaluating for itself the merits of jurisdictional claims. See Int’l
Longshoremen’s Ass’n, 914 F. Supp. at 1338; see also Adams, 697 F.2d at 1219.
Because Zoetis challenges whether Knapp’s Complaint states claims upon which subject
matter jurisdiction can lie, the Court assumes the truth of the facts alleged by Knapp.

9

B.

Federal Rule of Civil Procedure 12(b)(6)

“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1356 (1990)). To survive Rule 12(b)(6) scrutiny, a complaint must contain
sufficient factual information to “state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Fed. R. Civ. P. 8(a)(2) (“A pleading that
states a claim for relief must contain . . . a short and plain statement of the claim showing that the
pleader is entitled to relief.”). Mere labels and conclusions declaring that the plaintiff is entitled
to relief are not enough. Twombly, 550 U.S. at 555. Thus, “naked assertions of wrongdoing
necessitate some factual enhancement within the complaint to cross the line between possibility
and plausibility of entitlement to relief.” Francis v. Giacomelli, 588 F.3d 186, 193
(4th Cir. 2009) (citations omitted).
A complaint achieves facial plausibility when the facts contained therein support a
reasonable inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S.
at 556; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This analysis is context specific and
requires “the reviewing court to draw on its judicial experience and common sense.” Francis,
588 F.3d at 193. The Court must assume all well pleaded factual allegations to be true and
determine whether, viewed in the light most favorable to the plaintiff, they “plausibly give rise to
an entitlement to relief.” Iqbal, 556 U.S. at 678–79; see also Kensington, 684 F.3d at 467
(finding that the court in deciding a Rule 12(b)(6) motion to dismiss “‘must accept as true all of
the factual allegations contained in the complaint’ and ‘draw all reasonable inferences in favor of

10

the plaintiff’” (quoting Kolon Indus., Inc., 637 F.3d at 440)). This principle applies only to
factual allegations, however, and “a court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679
III. Analysis
For the reasons articulated below, the Court will grant in part and deny in part the Motion
to Dismiss and grant the Motion to Strike. Knapp lacks standing to bring claims arising under
New Jersey law in Counts I through V because Virginia substantive law, not New Jersey law,
applies to her injury. For the same reasons, the Court must strike Knapp’s class allegations in
Count I as she lacks standing to assert claims arising under New Jersey law on behalf of a
putative class when she herself was not harmed under the laws of New Jersey. As to Knapp’s
claims arising under Virginia law in Counts I, VI, and VII, the Court determines that Knapp
states a claim for breach of express warranty, but not for negligence or breach of implied
warranty.
A.

The Court Must First Determine the Threshold Choice-of-Law Issue

As a threshold matter, the Court must determine the substantive law against which to
measure the plausibility of Knapp’s claims. Here, Virginia’s choice-of-law rules dictate that
Virginia substantive law should apply to Knapp’s claims.
1.

Legal Standard: Choice-of-Law in Virginia

As a court of limited subject matter jurisdiction, Jadhav, 555 F.3d at 347 (citing Exxon
Mobile Corp., 545 U.S. at 552), this court must determine whether it has jurisdiction over the
claims at issue, see Steel Co., 523 U.S. at 94–95 (“The requirement that jurisdiction be
established as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the

11

United States’ and is ‘inflexible and without exception.’” (quoting Swan, 111 U.S. at 382)). In
federal cases, courts typically address choice-of-law questions as a threshold matter. See
Fransmart, LLC v. Freshii Dev., LLC, 768 F. Supp. 2d 851, 858 (E.D. Va. 2011) (explaining in a
diversity case that “the choice-of-law question is a threshold issue”).7
A federal court sitting in diversity must apply the choice-of-law rules of the state in
which it sits. Elderberry of Weber City, LLC v. Living Ctrs.-Se., Inc., 794 F.3d 406, 415 n.6 (4th
Cir. 2015) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496–97 (1941)). This
Court, sitting in Virginia, applies Virginia choice-of-law rules. In cases involving choice-of-law
questions, Virginia adheres to the use of traditional rules applicable to conflicts of laws and
rejects the “most significant relationship” analysis adopted by some other states. Frye v.
Commonwealth, 345 S.E.2d 267, 272 (Va. 1986) (internal citation omitted) (rejecting the “most
significant relationship” analysis adopted by the Restatement (Second) of Conflict of Laws)).
“Under such rules, questions of substantive law are governed by the law of the place of the
transaction or the place where the right is acquired (lex loci), while questions of procedure and
remedy are governed by the law of the place where the action is brought (lex fori).” Id.
As to tort claims, as in Counts I through III, Virginia “applies the lex loci delicti, the law
of the place of the wrong.” Milton v. IIT Research Inst., 138 F.3d 519, 521 (4th Cir. 1998).
“[T]he place of the wrong is the place the last event necessary to make an [actor] liable for an
alleged tort takes place.” Ford Motor Co. v. Nat’l Indem. Co., 972 F. Supp. 2d 850, 856 (E.D.
Va. 2013) (internal citations and quotations omitted). In other words, “Virginia’s choice of law

Knapp states without citation that the following choice-of-law analysis is “unnecessary
in resolving the Motion to Dismiss.” (Mem. Opp. Mot. Dismiss 4 n.2, ECF No. 15.) But in a
diversity action, “the choice-of-law question is a threshold issue,” Fransmart, 768 F. Supp. 2d at
858, that must be resolved to assess Knapp’s standing and the plausibility of Knapp’s state law
claims.
7

12

rule selects the law of the state . . . wherever the effects of that act are felt.” Milton, 138 F.3d at
522. In personal injury cases, the cause of action arises when the plaintiff first becomes ill. See
Quillen v. Int’l Playtex, Inc., 789 F.2d 1041, 1044 (4th Cir. 1986) (finding that plaintiff’s cause
of action in a products liability action first arose when she became ill at her home in Virginia
even though she purchased product in Tennessee).
As to warranty claims, as in Counts IV through VII, express and implied warranties in the
sale of a good fall under Virginia’s Uniform Commercial Code (“UCC”).8 Va. Code §§ 8.2-313–8.2-315. However, under Virginia law, warranty claims may sound in either contract or tort.
See E.I. Du Pont De Nemours & Co. v. Univ. Moulded Prods. Corp., 62 S.E.2d 233, 236 (Va.
1950) (“[A] complainant may, . . . where there is a breach of warranty, . . . sue in tort.” (internal
quotations and citations omitted)); Va. Code §§ 8.2-313–8.2-315 (providing for implied and
express warranties that form part of the contract or the “basis of the bargain” between the
parties). For those warranty claims sounding in contract, Virginia follows the traditional rule
that “questions of substantive law are governed by the law of the place of the transaction or the
place where the right is acquired.” Frye, 345 S.E.2d at 272. The Fourth Circuit has stated that
“under Virginia law, the law of the state where the injury occurs supplies the substantive law
governing warranty claims.” Farish v. Courion Indus., Inc., 754 F.2d 1111, 1118 (4th Cir.
1985).

Virginia’s UCC provides that unless a transaction “bears a reasonable relation to
[Virginia] and also to another state or nation” and the parties “agree that the law of either
[Virginia] or such other state or nation shall govern their rights and duties,” the “rights and
obligations of the parties are determined by the law that would be selected by application of
[Virginia’s] conflict of laws principles.” Va. Code § 8.1A-301(b)–(c).
8

13

2.

Because Boomer Became Ill in Virginia and All of Knapp’s Rights
Were Otherwise Acquired in Virginia, Virginia Law Applies to
Knapp’s Claims__________________________________________

Because Virginia choice-of-law rules dictate that the substantive law of the place of the
injury apply, this Court will apply Virginia substantive law to Knapp’s claims.
Knapp’s claims in Counts I through III sound in tort. See Abbot by Abbot v. Am.
Cyanamid Co., 844 F.2d 1108, 1115 (4th Cir. 1988) (analyzing negligent design, failure to warn,
and defective design claims as torts). Therefore, to determine what substantive law applies, this
Court must apply Virginia choice-of-law rules and determine “the place of the wrong” or the
place where the “last event necessary to make an [actor] liable for an alleged tort takes place.”
Ford Motor Co., 972 F. Supp. 2d at 856.
Viewing all facts in the light most favorable to Knapp, the “place of the wrong” lies in
Virginia, requiring that Virginia substantive law apply to Counts I through III. Id. The “last
event necessary” to make Zoetis liable for its negligent or deficient production of Excede took
place in Virginia when the Linmoorland Veterinarian administered Excede to Boomer, causing
him to become ill. Id.; see also Quillen, 789 F.2d at 1044 (finding that plaintiff’s cause of action
in a products liability action first arose when she became ill in Virginia). Boomer fell ill and
received all medical treatment in Virginia; thus the “effects” of Zoetis’s actions were “felt” in
Virginia. Milton, 138 F.3d at 522.
Virginia law also governs Knapp’s warranty claims in Counts IV through VII.9 Under
Virginia choice-of-law principles, breach of warranty claims may sound in either contract in tort.
See E.I. Du Pont De Nemours & Co., 62 S.E.2d at 236; Abbot by Abbot, 844 F.2d at 1115

9

The Court notes that, unlike her other claims in which she cites New Jersey law, Knapp
explicitly brings Counts VI and VII under Virginia law.
14

(considering breach of implied warranty of merchantability as a tort); Va. Code §§ 8.2-313–8.2315. The Court need not resolve whether Knapp brings her warranty claims under a contract or
tort theory of liability because under either theory, Virginia substantive law applies. Indeed, as
the Fourth Circuit has definitively stated, “under Virginia law, the law of the state where the
injury occurs supplies the substantive law governing warranty claims.” Farish, 754 F.2d at
1118.
Here, for the reasons stated above, Knapp’s injury occurred in Virginia. The “last event
necessary” to make Zoetis liable for its production of Excede took place in Virginia when the
Linmoorland Veterinarian administered the drug to Boomer. Ford Motor Co., 972 F. Supp. 2d at
856. And even drawing all reasonable inferences in her favor, the “place of the transaction” also
appears to have taken place in the Commonwealth of Virginia. (See Compl. ¶ 7 (“Venue is
proper in this District under 28 U.S.C. § 1391 because a substantial part of the events or
omissions giving rise to Plaintiff’s claim occurred in this District”).) Other than noting that
Zoetis’s “global headquarters [is] located at 10 Sylvan Way in Parsippany, New Jersey,” the
Complaint articulates no specific facts relating to any events, acts, or omissions that occurred in
New Jersey. (Id. ¶ 3.)
Viewing all facts in the light most favorable to Knapp and drawing all reasonable
inferences in her favor, Virginia law governs the claims in Knapp’s Complaint, including those
purportedly brought under New Jersey law in Counts I through V. The Court will therefore
apply Virginia law to Knapp’s claims.
B.

Counts I–V: The Court Will Dismiss the New Jersey Claims Because Knapp
Lacks Standing Under New Jersey Law________________________________

Because Virginia substantive law applies to Knapp’s alleged injury, the Court must grant
the Motion to Dismiss the New Jersey Claims in Counts I through V. Where Virginia choice-of15

law principles have mandated that Virginia law applies, the Court cannot “disregard the directive
of Virginia law which [it is] bound to apply in this diversity action.” Milton, 138 F.3d at 522.
Knapp therefore lacks standing to bring any claims under New Jersey law, and this Court lacks
subject matter jurisdiction over her New Jersey Claims.
1.

Legal Standard: Article III Standing

Article III, Section 2, clause 1 of the Constitution limits federal court jurisdiction to
“Cases” and “Controversies.” U.S. CONST. art. III, § 2, cl. 1. As the Supreme Court has
explained, an “essential and unchanging part of the case-or-controversy requirement” is that a
plaintiff must establish Article III standing to sue. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992). In Spokeo, Inc. v. Robins, the Supreme Court reiterated that, in order to establish
standing, a plaintiff must have: “(1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant; and[,] (3) that is likely to be redressed by a favorable
judicial decision.” 136 S. Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S. at 560–61).
As the party invoking federal jurisdiction, Plaintiffs bear the burden of properly alleging
standing. Lujan, 504 U.S. at 560; see also Balzer & Assocs., Inc. v. Union Bank & Trust Co.,
No. 3:09cv273, 2009 WL 1675707, at *2 (E.D. Va. June 15, 2009) (“On a motion to dismiss
pursuant to Rule 12(b)(1), the party asserting jurisdiction has the burden of proving subject
matter jurisdiction.” (citing Richmond, Fredericksburg & Potomac R.R. v. United States, 945
F.2d 765, 768 (4th Cir. 1991))). “Where, as here, a case is at the pleading stage, the plaintiff
must ‘clearly . . . allege facts demonstrating’ each element.” Spokeo, 136 S. Ct. at 1547 (quoting
Warth v. Seldin, 422 U.S. 490, 518 (1975)).
In Spokeo, the Supreme Court discussed the manner in which a plaintiff must allege
“injury in fact.” Spokeo, 136 S. Ct. at 1549. The Supreme Court confirmed that, to establish an

16

injury in fact, a plaintiff must demonstrate that he or she suffered “‘an invasion of a legally
protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural
or hypothetical.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560). When asserting a claim under
state law, a plaintiff must show that the state law affords them a specific “entitlement” or
“legally protected interested” before he or she can show standing. Friends for Ferrell Parkway
v. Stasko, 282 F.3d 315, 321 (4th Cir. 2002) (quoting Lujan, 504 U.S. at 560).
2.

Knapp Lacks Standing to Bring Any Claims Under New Jersey Law
Because She Has Not Suffered an Injury in Fact Under the Laws of
That State__________________________________________________

Knapp has not asserted any particularized injury in fact arising under the laws of New
Jersey. As a result, this Court lacks jurisdiction and must dismiss her New Jersey Claims.
Knapp has not suffered “an invasion of a legally protected interest” under New Jersey
law because her injury arises under the law of Virginia. Id. Knapp has thus not suffered any
“injury in fact” under New Jersey law and lacks standing to bring her New Jersey Claims. Id. at
1549.
District courts within the Fourth Circuit have consistently held that plaintiffs do not have
standing to bring claims under the statutes or laws of a state where they: (1) do not reside; and,
(2) have not been harmed. Porter v. DePuy Orthopaedics, Inc., No. 3:19cv007, 2019 WL
3979656, at *4–5 (E.D. Va. Aug. 6, 2019), report & recommendation adopted by, 2019 WL
3978407 (E.D. Va. Aug. 22, 2019) (dismissing two counts that “improperly allege[d] strict
liability under Ohio law when none of Plaintiff’s allegations render[ed] Ohio law applicable” and
only Virginia law applied); Manigault-Johnson v. Google, LLC, No. 2:18cv1032, 2019 WL
3006646, at *3 (D.S.C. Mar. 31, 2019) (dismissing privacy claims brought under California law
by South Carolina plaintiffs because out of state plaintiffs “cannot maintain [a] cause of action

17

under the California constitution”); Zaycer v. Sturm Foods, Inc., 896 F. Supp. 2d 399, 408, 409–
10 (D. Md. 2012) (dismissing consumer protection claims brought pursuant to law of five states
where the only injury occurred in Maryland).
Similarly, federal district courts outside the Fourth Circuit have found that a plaintiff
lacks standing where their claims bear little or no causal relation to the law of the state he or she
seeks to invoke. See In re Packaged Ice Antitrust Litig., 779 F. Supp. 2d 642, 657 (E.D. Mich.
2011) (collecting thirteen cases for the proposition that “plaintiffs lack standing to assert claims
under the laws of the states in which they do not reside or in which they suffered no injury”); In
re Checking Account Overdraft Litig., 694 F. Supp. 2d 1302, 1325 (S.D. Fla. 2010) (dismissing
“state statutory claims where no named plaintiff resides in the state from which the claim is
asserted”); In re Wellbutrin XL Antitrust Litig., 260 F.R.D. 143, 152 (E.D. Pa. 2009) (“a plaintiff
whose injuries have no causal relation to Pennsylvania, or for whom the laws of Pennsylvania
cannot provide redress, has no standing to assert a claim under Pennsylvania law, although it
may have standing under the law of another state.”)
Knapp, however, cites Irby v. Novartis Pharmaceuticals Corporation, a New Jersey
Superior Court case, for the proposition that New Jersey law could apply to this action. (Mem.
Resp. Mot. Strike 3, ECF No. 16) (citing No. 278, 2011 WL 5835414, at *1 (N.J. Super. Nov.
18, 2011).) In that case, the parties agreed that when a plaintiff was injured in Virginia,
“Virginia law govern[ed] Plaintiff’s claims for failure to warn, defective design, breach of
implied warranty, negligence, and consumer fraud” but disagreed as to whether New Jersey or
Virginia law applied to punitive damages. Irby, 2011 WL 5835414, at *1. The Irby Court,
applying New Jersey choice-of-law rules, found that because the defendant company was
headquartered in New Jersey, that state possessed a more significant relationship with the

18

conduct at issue as to punitive damages and determined that New Jersey law should govern the
extent of punitive relief. Id. at *3.
Irby does not support Knapp’s position. First, the Irby Court applied substantially
different New Jersey choice-of-law rules, including the “significant relationship” test that
Virginia rejects. Id. Second, the Irby Court explicitly recognized that Virginia law should
govern the substance of plaintiff’s claims and spoke only to the separate issue of punitive
damages. Id. The Irby Court therefore did not hold that a plaintiff could bring claims under
New Jersey law where the plaintiff’s injuries arose under the law of Virginia.
Because Virginia law applies to this action, Knapp lacks standing to bring any claims
pursuant to New Jersey law and this Court lacks subject matter jurisdiction over those same
claims. The Court will grant the Motion to Dismiss Counts II through V without prejudice
pursuant to Rule 12(b)(1). The Court dismisses Count I pursuant to Rule 12(b)(1) only insofar as
it asserts a claim under New Jersey law. The Court will consider Knapp’s claim for Negligence
under Virginia law below.
3.

The Court Must Grant the Motion to Strike Because Knapp Lacks
Standing to Assert Claims Under New Jersey Law for the Purported
Class Action_______________________________________________

For the same reasons that Knapp’s individual claims brought under New Jersey law
falter, the Court finds her class action claims facially deficient. As a result, the Court will grant
the Motion to Strike.

19

a.

Legal Standard: Motion to Strike Class Allegations on
Standing Grounds_______________________________

A “court may strike from a pleading” class allegations “on motion made by a party” or
“require that the pleadings be amended to eliminate” the class allegations.10 Fed. R. Civ. P.
12(f)(2) and 23(d)(1)(D). Class allegations can be abandoned either before or after a plaintiff
moves for class certification and conducts discovery. See Hooker v. Sirius XM Radio, Inc.,
4:13cv3, 2014 WL 12597593, at *4 (E.D. Va. June 5, 2014) (citing Scott v. Family Dollar
Stores, Inc., 733 F.3d 105, 109–10, 116 (4th Cir. 2013)). Nonetheless, a district court “should
only grant a motion to strike class allegations before discovery if the allegations are facially and
inherently deficient.” Bryant v. King’s Creek Plantation, LLC, No. 4:20cv61, 2020 WL
6876292, at *2 (E.D. Va. June 22, 2020) (internal citation omitted). A court may deny a motion
to strike as premature if the motion requires discovery to address the appropriateness of class
certification. Id.

10

There are four prerequisites to class actions under the Federal Rules of Civil Procedure:
(1) the class is so numerous that joinder of all members is impracticable
[numerosity];
(2) there are questions of law or fact common to the class [commonality];
(3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class [typicality];
(4) the representative parties will fairly and adequately protect the interests
of the class [adequacy].

Fed. R. Civ. P. 23(a). In addition to meeting all four prerequisites, the class action must also fit
into one of the three categories listed in Rule 23(b). Krakauer v. Dish Network, L.L.C., 925 F.3d
643, 655 (4th Cir. 2019). Rule 23(b) requires “that the questions of law or fact common to the
members of the class predominate over any questions affecting only individual members.” Fed.
R. Civ. P. Rule 23(b)(3).
20

Like any other action, Article III, Section 2, clause 1 of the Constitution limits federal
court jurisdiction over class actions to “Cases” and “Controversies.” U.S. CONST. art. III, § 2,
cl. 1. In a class action, courts analyze standing “based on the allegations of personal injury made
by the named plaintiffs.” Beck v. McDonald, 848 F.3d 262, 269 (4th Cir. 2017) (citing Doe v.
Obama, 631 F.3d 157, 160 (4th Cir. 2011)). “Without a sufficient allegation of harm to the
named plaintiff in particular, plaintiffs cannot meet their burden of establishing standing.” Id.
at 270 (quoting Doe, 631 F.3d at 160). Therefore, before determining whether a proposed class
meets the elements of Rule 23(a), a court should first consider whether a named plaintiff may
“assert the rights of others.” Carter v. W. Publ’g Co., 225 F.3d 1258, 1262 (11th Cir. 2000)
(internal citations omitted).
The named plaintiff “must allege a distinct and palpable injury to himself [or herself],
even if it is an injury shared by a large class of other possible litigants.” Zaycer, 896 F. Supp. 2d
at 408 (quoting Warth v. Seldin, 422 U.S. 490, 502 (1975). “That a suit may be a class action . . .
adds nothing to the question of standing, for even named plaintiffs who represent a class must
allege and show that they personally have been injured, not that injury has been suffered by
other, unidentified members of the class to which they belong and which they purport to
represent.” Lewis v. Casey, 518 U.S. 343, 357 (1996) (internal quotations omitted). Therefore,
class representatives who have not suffered an injury in fact cannot predicate standing on injuries
suffered by other non-present members of the class.
b.

The Court Must Strike Knapp’s Class Allegations Because She
Lacks Standing to Assert Claims on Behalf of Class Members
Suing Pursuant to New Jersey Law________________________

Because Knapp’s class allegations are facially deficient, the Court will strike her class
allegations.

21

In the Motion to Strike, Zoetis raises a number of arguments concerning the alleged flaws
in Knapp’s proposed class, including that: (1) a class action would necessarily involve the
application of numerous states’ laws; (2) it would require the individual analysis of class
members’ facts overwhelming common issues; (3) its members are not readily ascertainable;
and, (4) that this Court lacks personal jurisdiction over Zoetis regarding class members whose
injuries have no connection to Virginia. (See Mem. Supp. Mot. Strike 4, ECF No. 7.) The Court
declines to reach these arguments because Knapp lacks standing to bring a claim based on the
facts alleged, on behalf of herself or others, pursuant to New Jersey law.
Knapp, as the sole Named Plaintiff, seeks to advance this class action under New Jersey
law. But, as this Court previously found, Knapp’s claims, as currently pled in the Complaint,
arise under Virginia law. Where Knapp lacks standing to bring her claims under New Jersey
law, she similarly lacks standing to bring claims on behalf of a class proceeding under New
Jersey law. Knapp cannot show that she has “personally . . . been injured” in a manner similar to
the other class members she purports to represent, Lewis, 518 U.S. at 357, as the other class
members allegedly suffered the invasion of a protected legal interest under the law of New
Jersey while she did not. See Zaycer, 896 F. Supp. 2d at 408 (finding that where plaintiff “was
neither harmed by the Product, nor purchased the Product, in any state other than [her home
state] . . . she has no standing to sue under any state consumer protection law except for [her
home state’s]”)
Although Knapp states that she “believes bringing her class claims under New Jersey law
is the best way to achieve an efficient manner of uniform redress,” (Mem. Opp. Mot. Strike 2,
ECF No. 19), she identifies no authority that allows her to elect to proceed under the laws of a
state that do not govern the conduct at issue. Rather, case law explains that “named plaintiffs

22

lack standing to assert claims [on behalf of a class] under the laws of the states in which they do
not reside or in which they suffered no injury.” In re Packaged Ice Antitrust Litig., 779 F. Supp.
2d at 657 (collecting cases).
Accordingly, the Court will grant the Motion to Strike the class action claims brought
pursuant to New Jersey law. The Court will dismiss in their entirety Counts II, III, IV, and V.
C.

Count VI: Breach of Express Warranty

The Court determines that Knapp states a claim for breach of express warranty and will
deny the Motion to Dismiss as to Count VI.
1.

Legal Standard: Breach of Express Warranty

The Virginia UCC provides that in certain circumstances a seller of goods creates express
warranties, the breach of which may be enforced by the buyer. Va. Code § 8.2-313. For
example, when a seller makes “[a]ny affirmation of fact or promise . . . to the buyer which relates
to the goods and becomes part of the basis of the bargain,” the seller “creates an express
warranty that the goods shall conform to the affirmation or promise.” Va. Code § 8.2-313(1)(a).
“Any description of the goods which is made part of the basis of the bargain [also] creates an
express warranty that the goods shall conform to the description.” Va. Code § 8.2-313(1)(b).
To state a claim for breach of express warranty in the Commonwealth of Virginia, a
plaintiff must plead: (1) the existence of a warranty; and, (2) breach of that warranty. See
McPike v. Zero-Gravity Holdings, Inc., No. 1:17cv562, 2019 WL 7945710, at *3 (E.D. Va. Mar.
14, 2019) (“courts in this Commonwealth have consistently stated that a breach of warranty
claim has only two elements.”) “Any description of the goods, other than the seller’s mere
opinion about the product, constitutes part of the basis of the bargain and is therefore an express
warranty.” Martin v. Am. Med. Sys., 116 F.3d 102, 105 (4th Cir. 1997).

23

“Virginia law does not require proof of causation to state a breach of warranty claim.”
Id. In other words, to establish an express warranty claim under either tort or contract, the buyer
need not plead actual reliance on the express warranty. See Daughtrey v. Ashe, 413 S.E.2d 336,
338–39 (Va. 1992) (internal citations omitted); Martin, 116 F.3d at 105 (explaining that because
express warranties form the basis of the bargain, “[i]t is unnecessary that the buyer actually rely
upon it”). “An affirmation of fact is presumed to be part of the bargain [between the parties],
and any fact that would remove such affirmation out of the agreement ‘requires clear affirmative
proof.’” Yates v. Pitman Mfg., Inc., S.E.2d 605, 606 (Va. 1999) (quoting Daughtrey, 413 S.E.2d
at 339 (internal quotations omitted)). Whether an express warranty has been created is a
question of fact for the jury. Benedict v. Hankook Tire Co., 295 F. Supp. 3d 632, 637 (E.D. Va.
2018).
2.

Knapp Plausibly Pleads That Zoetis Made an Express Affirmation or
Promise Regarding Excede that it Subsequently Breached__________

Knapp plausibly states a claim that Zoetis breached an express warranty to her in its
manufacture and sale of Excede. The Court first concludes that Knapp satisfies the elements of a
breach of express warranty claim. The Court next determines that Knapp need not be in privity
of contract with Zoetis to recover on a claim of express warranty.
a.

Knapp States Facts Satisfying the Elements of a Breach of
Express Warranty Claim____________________________

To state a breach of express warrant claim under Virginia law, Knapp must show: (1) the
existence of a warranty; and, (2) breach of that warranty. McPike, 2019 WL 7945710, at *3.
Knapp satisfies both elements here.
As to the first element, the existence of a warranty, Knapp plausibly states that Zoetis
made an express warranty or affirmation regarding Excede when it stated that “Excede provides

24

peace of mind knowing that the antibiotic has been demonstrated to be safe and effective in
horses” and “Excede makes the treatment process less stressful for you and your horse.”
(Compl. ¶ 83.) These statements about the relative safety and treatment advantages of Excede
plausibly represent “affirmation[s] of fact or promise[s],” Va. Code § 8.2-313(1)(a), made by
Zoetis to the buyer about the “suitability” of the product for its intended purposes. See Hamlett
v. Va. Vascular Assocs., 61 Va. Cir. 468, 470 (Cir. Ct. 2003) (finding plaintiff had stated facts
showing an express warranty where medical device company represented to doctors that a stent
graft “was suitable . . . to be inserted into [plaintiff’s] iliac artery”). Keeping in mind that the
question of whether an express warranty has been created is a question of fact for the jury,
Benedict, 295 F. Supp. 3d at 653, Zoetis facially alleges a “description of the goods, other than
[Zoetis’s] mere opinion about the product, [that] constitutes part of the basis of the bargain” and
established an express warranty under Virginia law. Martin, 116 F.3d at 105. These facts
suffice to satisfy the first element of an express warranty claim under Virginia law.
As to the second element, breach of that express warranty, Knapp plausibly pleads that
Zoetis breached its express warranty when it sold goods that did not conform to the above
description and caused Boomer to become ill. Knapp states a claim that Excede did not conform
to Zoetis’ express representations that the product was “demonstrated to be safe and effective in
horses” because the Linmoorland Veterinarian’s injection of Excede in Boomer “caused serious
harm, [and] stress . . . when used as recommended and directed.” (Compl. ¶¶ 83, 85.) These
facts suffice to satisfy the second element of an express warranty claim under Virginia law.

25

b.

Knapp Does Not Need to Show that She Was in Privity of
Contract with Zoetis to State a Breach of Express Warranty
Claim______________________________________________

Zoetis contends that Knapp falters at the third element of breach of express warranty: the
requirement that privity between the buyer and the seller of the good exist. Zoetis argues that
“the Va. Code §8.2-715(2)(a) contract requirement prevails over the general privity-release in
Va. Code § 8.2-318 . . . . [meaning] a contract between [Knapp] and Zoetis is required for
[Knapp] to recover consequential economic damages in her breach of express or implied
warranty claims.” (Mem. Supp. Mot. Dismiss 22.)
Virginia Code § 8.2-318 generally eliminates privity as a defense to express warranty
claim, providing, in relevant part that:
[l]ack of privity between plaintiff and defendant shall be no defense in any action
brought against the manufacturer or seller of goods to recover damages for breach
of warranty, express or implied, or for negligence, although the plaintiff did not
purchase the goods from the defendant, if the plaintiff was a person whom the
manufacturer or seller might reasonably have expected to use, consume, or be
affected by the goods.
Va. Code § 8.2-318. By comparison, Section 8.2-715, entitled “Buyer’s incidental and
consequential damages,” imposes a contract requirement for warranty claims in certain limited
circumstances and states as follows:
(1) Incidental damages resulting from the seller’s breach include expenses
reasonably incurred in inspection, receipt, transportation and care and custody of
goods rightfully rejected, any commercially reasonable charges, expenses or
commissions in connection with effecting cover and any other reasonable expense
incident to the delay or other breach.
(2) Consequential damages resulting from the seller’s breach include
(a) any loss resulting from general or particular requirements and needs of
which the seller at the time of contracting had reason to know and which
could not reasonably be prevented by cover or otherwise; and

26

(b) injury to person or property proximately resulting from any breach of
warranty.
Va. Code Ann. § 8.2-715 (emphasis added).
Zoetis cites Beard Plumbing and Heating, Inc. v. Thompson Plastics, Inc., 491 S.E.2d
731, 734 (Va. 1997), to support its argument that § 8.2-715 controls here. (Mem. Supp Mot.
Dismiss 21.) The Court finds Beard distinguishable. In Beard, the plumbing fittings used by a
subcontractor in a housing development had “cracked and subsequently leaked when hot water
was used in the system,” requiring the subcontractor “to replace the fittings and to repair the
damage to the homes.” 491 S.E.2d at 732. The subcontractor then sued the manufacturers of the
faulty product seeking damages, specifically “the uncompensated cost to repair the homes, loss
of the remainder of its contract with the general contractor, revenue lost due to damage to
business reputation” and various legal and settlement fees. Id. The Virginia Supreme Court,
answering a question certified by the Fourth Circuit, found that because the subcontractor did not
have any contract with the manufacturer, the more specific language of § 8.2-715(2)(a), requiring
a contract, overrode the general privity release set forth in § 8.2-318. Id. at 733. However, the
Beard Court cautioned that it limited its “discussion to subparagraph (a) [of § 8.2-715(2)], since
injury to persons or property is not involved in this case.” Id.
Here, unlike the plaintiff in Beard, Knapp does not claim damages from frustrated
economic expectations based on her “general or particular requirements and needs” pursuant to
§ 8.2-715(2)(a). Knapp proceeds instead under § 8.2-715(2)(b) and seeks recovery for “injury to
. . . property proximately resulting from . . . breach of warranty.” Va. Code § 8.2-715(2)(b).11

11

For example, had Knapp brought suit alleging solely that Excede failed to reduce the
swelling in Boomer’s legs, then she would likely need to allege privity of contract with Zoetis
under § 8.2-715(2)(a). But where her claims arise solely out of Excede’s alleged damage to her
property, she does not need to show privity of contract with Zoetis.
27

Section 8.2-715(2)(b), which the Virginia Supreme Court explicitly declined to address in Beard,
Pulte, or any other case Zoetis cites, does not require a contract or privity between the buyer and
the seller of the product. See § 8.2-715(2)(b).
Indeed, federal and state courts in Virginia have held that a plaintiff need not be in privity
with a defendant where he or she alleges injury to person or property from breach of express or
implied warranty. See Martin, 116 F.3d at 105 (finding that Va. Code § 8.2-318’s general privity
release allowed an injured patient to bring a claim against medical device manufacturer because
the surgeon or hospital “is not the ultimate user” of the device); Porter, 2019 WL 3979656, at *6
(observing that “Virginia law does not require privity between a reasonably foreseeable user and
the manufacturer of an allegedly defective good to sustain a products liability action”); AIU Ins.
Co. v. Omega Flex, Inc., No. 3:11cv23, 2011 WL 2295270, at *7 (W.D. Va. June 9, 2011)
(explaining that privity is not required for a warranty claim brought to recover property damages
so “long as there was proximate cause linking the breach of warranty with Plaintiff’s property
damage.”); Hamlett, 61 Va. Cir. at 470 (“Because this is a products liability claim, privity is not
required, and there is no need to show that the representations were made directly to [the
plaintiff]”).
Considering this authority, and the plain language of Virginia Code § 8.2-715, Knapp
does not need to show that she was in privity of contract to recover consequential economic
damages against Zoetis. She satisfies the third and final element of the test because Knapp states
the elements of a breach of express warranty claim under Virginia law, the Court will deny
Zoetis’s Motion to Dismiss as to Count VI.

28

D.

Counts I and VII: Negligence and Breach of Implied Warranty

Because Knapp does not identify any defect with Excede, Knapp does not state a claim
for negligence or breach of implied warranty against Zoetis under a defective manufacture or
defective design theory.12 As a result, the Court will grant the Motion to Dismiss as to Counts I
and VII pursuant to Rule 12(b)(6).
1.

Legal Standard: Negligence and Breach of Implied Warranty

“The basic analytical framework applicable to products liability claims in Virginia is the
same whether a plaintiff is bringing a negligence or breach of implied warranty action.”
Benedict, 295 F. Supp. 3d at 637. To recover for negligence or breach of implied warranty, a
plaintiff must show: “(1) that the goods were unreasonably dangerous either for the use to which
they would ordinarily be put or for some other reasonably foreseeable purpose, and (2) that the
unreasonably dangerous condition existed when the goods left the defendant’s hands.” Porter,
2019 WL 3979656, at *7 (internal citations omitted); see also Abbot by Abbot, 844 F.2d at 1114;
Morgen Indus. v. Vaughan, 471 S.E.2d 489, 492 (Va. 1996); Ball v. Takeda Pharms. Am., Inc.,
963 F. Supp. 2d 497, 504–05 (E.D. Va. 2013), aff’d, 587 F. App’x 78 (4th Cir. 2014). “A
product is ‘unreasonably dangerous’ if defective (1) in assembly or manufacture, (2) if
imprudently designed, or (3) if not accompanied by adequate warnings about its hazardous
properties.” Abbot by Abbot, 844 F.2d at 1114.

As United States District Judge Robert E. Payne of this Court recently observed, “[t]he
basic analytical framework applicable to products liability claims in Virginia is the same whether
a plaintiff is bringing a negligence or breach of implied warranty action.” Benedict, 295 F. Supp.
3d at 637; see also Holiday Motor Corp. v. Walters, 790 S.E.2d 447, 455 (2016) (“the standard
of safety of goods imposed on . . . the manufacturer of a product is essentially the same whether
the theory of liability is labeled warranty or negligence. The product must be fit for the ordinary
purposes for which it is to be used”) (internal citation omitted). Because Knapp’s claims for
Negligence and Breach of Implied Warranty rise and fall together, the Court will consider them
jointly.
12

29

“In determining what constitutes an unreasonably dangerous defect, a court will consider
safety standards promulgated by the government or the relevant industry, as well as the
reasonable expectations of consumers.” Alevromagiros, 993 F.2d at 420. Consumer
expectations may “be established through evidence of actual industry practices, . . . published
literature, and from direct evidence of what reasonable purchasers considered defective.” Id. at
420–21 (internal citations and quotations omitted).
To state a claim for negligence or breach of implied warranty under a manufacturing
defect or design defect theory, the plaintiff must, at a minimum, “allege facts that would permit
the Court to conclude that a manufacturing or design defect existed.” Ball, 963 F. Supp. 2d at
505. “A bare allegation of a ‘defect’ is no more than a legal conclusion.” Id. (collecting cases).
Therefore, even at the pleadings stage, a plaintiff must allege sufficient facts “indicating how a
product may have been manufactured improperly.” Dodson v. C.R. Bard, Inc., No. 3:20cv596,
2020 WL 7647631, at *4 (E.D. Va. Dec. 23, 2020); see also Porter, 2019 WL 3979656, at *8
(plaintiff must “allege facts specifying a plausible defect in the implants’ manufacture or
design”); Fields v. Jobar Int’l, Inc., No. 3:14cv50, 2014 WL 1513289, at *5 (E.D. Va. Apr. 16,
2014) (“Without a description of the allegedly dangerous defect, this Court is unable to
determine whether Plaintiff has pled an actionable claim for breach of implied warranty that is
plausible.”)
2.

Knapp Does Not State a Claim for Negligence or Breach of Implied
Warranty Because She Does Not Identify Excede’s Defect________

Knapp does not state a claim under a negligence or breach of implied warranty theory
because she does not identify the purported defect with Excede. Here, Knapp alleges that
Excede was unreasonably dangerous under both a (1) manufacturing defect; and, (2) design
defect theory. (See Mem. Resp. Mot. Dismiss 8 (“Counts I, III, V, and VII state claims upon
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which relief may be granted for defective design and manufacture under both New Jersey and
Virginia law.”) (emphasis added).13
Knapp cannot state a claim under either theory because she does not identify any specific
defect with Excede. As courts within the Eastern District of Virginia have ruled, to state a claim
for negligence or breach of implied warranty in a products liability action under a design defect
or manufacturing defect theory, the plaintiff must, at a minimum, “allege facts that would permit
the Court to conclude that a manufacturing or design defect existed.” Ball, 963 F. Supp. 2d at
505; Dodson, 2020 WL 7647631, at *4; Porter, 2019 WL 3979656, at *6; Fields, 2014 WL
1513289, at *5. Knapp offers no facts showing that “there was a defect, what the defect was, or
how the defect occurred.” Wilder v. Toyota Motor Sales, U.S.A., Inc., 23 F. App’x 155, 157 (4th
Cir. 2001). Instead, Knapp recites the elements of a negligence and implied breach of warranty
claim under Virginia law without factual enhancement. Without such facts, the Court “is unable
to determine whether Plaintiff has pled an actionable claim for breach of implied warranty.”
Fields, 2014 WL 1513289 at *5.

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Although Knapp brought a failure to warn claim in Count II under New Jersey law, she
declined to press a failure-to-warn claim in Count VII. (See Zoetis Reply Mot. Dismiss 2
(recognizing that Knapp “does not allege a failure to warn claim under Virginia law, and despite
the implications of the choice of law rules, makes no attempt to argue that she has stated such a
claim.”). To the extent Knapp asserts a failure to warn claim, that too must falter on the present
Complaint. To state a failure to warn claim, a party must prove that the manufacturer:
“(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for
which it is supplied, and (b) has no reason to believe that those for whose use the chattel is
supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform
them of its dangerous condition.” Featherall v. Firestone Tire & Rubber Co., 252 S.E.2d 358,
366 (1979) (quoting Restatement (Second) of Torts §388 (1965)) (emphasis added). Here,
Knapp acknowledges that her use of Excede, to reduce swelling in Boomer’s legs, did not
conform to the brand use of “treating equine respiratory infections.” (Compl. ¶ 34.) Without a
plausible allegation that Zoetis also knowingly supplied Excede for its off-brand use of treating
swelling, Knapp cannot plausibly show that Zoetis had reason to know Excede was “likely to be
dangerous for the use for which it [was] supplied” insofar as Knapp’s use of the drug to treat leg
swelling. Featherall, 252 S.E.2d at 366.
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Knapp cannot state a negligence or breach of implied warranty claim based only on the
fact that a negative event occurred after she utilized Excede. In Ball, a plaintiff similarly alleged
that “she suffered infertility and contracted Stevens-Johnson syndrome” after taking a drug.
Ball, 963 F. Supp. 2d at 499. Despite the fact that the plaintiff suffered an injury after using the
product, the Ball Court determined that the mere fact that an injury had occurred did not provide
“any facts that would permit the Court to conclude that a manufacturing or design defect existed,
or that such a defect was the proximate cause of plaintiff’s alleged injuries.” Id. at 505. Here
too, the fact that Boomer became ill following the Linmoorland Veterinarian’s administration of
Excede does not necessarily lead to the conclusion that a defect existed.
In response, Knapp, relying solely on a case from the Western District of Virginia, James
v. Subaru Corporation, argues that “[t]he Federal Rules of Civil Procedure simply do not require
that level of detail or a forecasting of the plaintiff’s anticipated evidence” in a negligence or
implied breach of warranty claim. No. 1:19cv30, 2019 WL 6468563, at *2 (W.D. Va. Dec. 2,
2019). In that case, the plaintiff sued a car manufacturer for injuries resulting from the
unexpected deployment of an airbag. Id. The James Court denied the manufacturers motion to
dismiss, stating that the plaintiff “adequately pled that were the airbag not defective, or were she
warned of its defect, she would not have been injured by its unexpected and forceful deployment
. . . [and] [a]t this early stage of the proceedings, no more is necessary.” Id. at *3.
In James however, unlike here, the manufacturers challenged whether plaintiff pled
sufficient facts “showing what consumers expect of side curtain airbags” and “proximate cause.”
Id. at *2. Here, Zoetis challenges whether Knapp has properly identified the defect in Excede.
Furthermore, to the extent that James suggests that a plaintiff need not identify a specific defect
in a products liability case, that suggestion unfortunately runs counter to the weight of authority

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