Loeb v. Champion Petfoods USA Inc et al

Filing 59

ORDER signed by Judge J P Stadtmueller on 2/6/2019. 33 Defendants' Motion for Summary Judgment is GRANTED; Counts One and Five of Plaintiff's Complaint are DISMISSED. 31 and 46 Plaintiff's Motions to Seal Documents a re GRANTED. 41 Plaintiff's Motion to Unseal Documents Filed in Support of Her Motion for Class Certification is GRANTED; 38 Plaintiff's Motion to Seal Documents Filed in Support of Her Motion for Class Certification is DENIED as moot; Clerk of Court is DIRECTED to unseal the attachments to Docket #40 and to docket as unsealed Docket #39-1. 39 Plaintiff's Motion for Class Certification is DENIED as moot. Action is DISMISSED with prejudice. See Order for further details. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KELLIE LOEB,
Plaintiff,
v.
CHAMPION PETFOODS USA INC.
and CHAMPION PETFOODS LP,

Case No. 18-CV-494-JPS

ORDER

Defendants.
1.

INTRODUCTION
Plaintiff, a Wisconsin consumer, asserts that Defendants, makers of

pet food, deceptively marketed their dog food as having various highquality attributes when this was not the case. Specifically, she claims that
Defendants’ product was contaminated with lead, arsenic, cadmium, and
mercury. On that basis, she brought the instant class action which states five
separate causes of action. (Docket #1). Three of the claims were dismissed
in the Court’s order addressing Defendants’ motion to dismiss. (Docket #19)
(the “Dismissal Order”). Defendants have filed a motion for summary
judgment addressing the two remaining claims and seeking dismissal of
the entire lawsuit. (Docket #33). For the reasons explained below,
Defendants’ motion must be granted.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that the “court shall

grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th

Cir. 2016). A “genuine” dispute of material fact is created when “the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court construes all facts and reasonable inferences in a light most
favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016).
In assessing the parties’ proposed facts, the Court must not weigh
the evidence or determine witness credibility; the Seventh Circuit instructs
that “we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618
F.3d 688, 691 (7th Cir. 2010). Internal inconsistencies in a witness’s
testimony “‘create an issue of credibility as to which part of the testimony
should be given the greatest weight if credited at all.’” Bank of Ill. v. Allied
Signal Safety Restraint Sys., 75 F.3d 1162, 1170 (7th Cir. 1996) (quoting Tippens
v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986)). The non-movant “need
not match the movant witness for witness, nor persuade the court that [its]
case is convincing, [it] need only come forward with appropriate evidence
demonstrating that there is a pending dispute of material fact.” Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
3.

RELEVANT FACTS
Defendants sell many varieties of pet food. The two at issue in this

case are the dog foods Orijen Original and Orijen Senior. From November
2016 through March 2018, Plaintiff purchased Orijen Original and Orijen
Senior for her two dogs. She did so at various pet supply stores throughout
Wisconsin. The packaging of these products included many statements
about their quality and wholesomeness, including the following
(capitalization is preserved):

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•

ORIJEN features FRESH, RAW or DEHYDRATED
INGREDIENTS, from minimally processed poultry,
fish and eggs that are deemed fit for human
consumption prior to inclusion in our foods

•

FRESH REGIONAL INGREDIENTS GROWN CLOSE
TO HOME – We focus on local ingredients that are
ethically raised by people we know and trust, and
delivered to our kitchens fresh or raw each day

•

WHOLEPREY DIET

•

Nourish as Nature Intended – ORIJEN mirrors the
richness, freshness and variety of WholePrey meats
that dogs are evolved to eat

•

MADE IN OUR USA KENTUCKY KITCHENS

•

INGREDIENTS WE LOVE FROM PEOPLE WE
KNOW AND TRUST

•

TRUSTED BY PETLOVERS EVERYWHERE, ORIJEN
IS THE FULLEST EXPRESSION OF OUR
BIOLOGICALLY APPROPRIATE AND FRESH
REGIONAL INGREDIENTS COMMITMENT

(Docket #36-3 at 7–15).
The packaging does not specifically represent that the products are
free of heavy metals. Plaintiff believes that even without this express
statement, the general import of the packaging led her to believe that she
was purchasing a premium, healthy, locally sourced dog food, implicitly
free of harmful contaminants. Nonetheless, Defendants never intentionally
added heavy metals to their products. The heavy metals found therein are
naturally occurring, in that they were present in the plants and animals
which were processed into the food.1
Plaintiff notes that, by operation of logic, Defendants did indeed add the
heavy metals to the products, just as they added every other ingredient. This is
both true and irrelevant. The point is that Defendants did not, for instance, dump
vats of lead into their products.
1

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Defendants have offered evidence that the presence of heavy metals
in Orijen does not make the product harmful or dangerous.2 In 2005, the
National Research Council published a study titled Mineral Tolerance of
Animals (the “MTA”). The MTA describes maximum tolerable levels
(“MTL”) for various substances in pet food, including the heavy metals at
issue here. According to third-party lab studies commissioned by
Defendants, the levels of arsenic, cadmium, lead, and mercury in
Defendants’ products are but a fraction of the MTLs. Plaintiff questions the
reliability of these studies but has not performed any such studies on her
own.
Defendants assert that the MTLs are widely accepted and relied
upon in determining safe levels of heavy metals in pet food. This is based
primarily on the testimony of Robert Poppenga (“Poppenga”), a veterinary
toxicologist hired by Defendants to offer an expert opinion in this matter.
Defendants further note that the MTA’s MTLs were later cited in a 2011
Food and Drug Administration document called the Target Animal Safety
Review Memorandum, which assess the potential danger of heavy metals
in pet food.3 Plaintiff attempts to question the reliability of the MTLs
because the MTA is old, and because the MTA itself cautions that the data
on mineral toxicity in pets is incomplete, thus undermining the usefulness

Defendants claim that Plaintiff’s dogs did not suffer any adverse health
consequences from eating Orijen. Plaintiff disputes this, as one of her dogs has
cancer, and both have liver problems. Neither side has presented expert veterinary
opinions on the matter, so the Court is unable to determine who is correct.
2

Plaintiff suggests that the FDA’s memorandum simply used the MTL
figures and did not expressly adopt them, but regardless of semantics, the
memorandum repeatedly relied on the MTLs to evaluate whether certain pet foods
were safe. (Docket #48-7 at 4) (stating that the MTLs are appropriate for the
assessment of animal diets).
3

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of the MTLs when applied to those animals. However, she fails to offer any
expert opinion to counteract that supplied by Defendants.
Plaintiff does submit other forms of contrary evidence. The FDA has
published a reference chart detailing the contaminant levels in various
consumer food products, entitled the Total Diet Study (“TDS”). Plaintiff
relies on the TDS as a comparator between the levels of heavy metals in
Defendants’ products versus those in consumer-bound chicken, turkey,
and eggs. She notes that the heavy metal levels in these human foods are
lower than in Defendants’ dog food, implying that Orijen is tainted and
unfit for human consumption. Defendants stress that the TDS is merely a
chart; it does not purport to establish dietary limits on heavy metals in any
species—human, dog, or otherwise. In fact, it contains no conclusions of
any kind. Because of this, Poppenga opines that the TDS is completely
unhelpful to the determination of what levels of such contaminants are safe
in food.
Plaintiff has also obtained the expert opinion of Bobby Calder
(“Calder”), a scholar in the field of psychology and marketing, who states
that Orijen’s packaging is carefully designed to convey a belief to
consumers that the product is of high quality and made from fresh
ingredients which are fit for human consumption. Calder avers that the
packaging’s design would both consciously and unconsciously influence a
reasonable consumer to purchase Orijen. Calder concludes that “[t]o the
extent that the Orijen . . . failed to provide the high quality, fit for human
consumption, biologically appropriate based on evolution, whole animal
raw and fresh ingredients that their packaging led consumers to expect,
consumers would have been misled[.]” (Docket #49-14 at 11).

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Finally, Plaintiff points out a number of other quality issues with
Defendants’ products, including the use of expired and frozen ingredients
and those labeled as unfit for human consumption, the inclusion of heavily
processed animal meal and rendered fats, the addition of regrinds (the
ground-up remains of prior production runs of dog food), lack of regionally
sourced ingredients, but rather the use of ingredients from around the
globe, the presence of contaminants like hair, bugs, bones, and plastic, and
the possibility that Defendants did not actually know the origin of all of
their ingredients. Defendants dispute both the truth of Plaintiff’s claims
and, assuming their truth, their relevance. Plaintiff’s complaint rests its
allegations of substandard quality on one issue: the presence of heavy
metals in the products. It says nothing about any of the other quality
problems Plaintiff now raises.4

The only statement of fact dealing directly with heavy metals in
Defendants’ products is the following:
4

Champion has run a handful of laboratory feeding trials
wherein a small number of laboratory dogs are fed Champion
foods for a period of approximately six months and monitored.
Christine Caswell Dep. (“Caswell Dep.”) 22:21–24:26, attached as
Exhibit 9. In 2011, one of Champion’s most heavily contaminated
diets, ORIJEN Six Fish, failed an AAFCO feeding trial because two
of the test animals were found to have elevated levels of the liver
enzyme ALT. Caswell Dep. 99:6–100:5. Rather than take any
measures to determine the cause of the failure (which in all
likelihood was the astronomical levels of heavy metals contained in
the diet), Champion decided to attempt the trial again and never
determined the cause of the failure. Caswell Dep. 100:6–13. This is
part of a dangerous and unscientific practice at Champion: when a
test shows an undesirable outcome, retest until the outcome is good
then stop[.]
(Docket #56 at 17–18). There are two problems with this statement, however, that
make it useless for purposes of this case. First, the testing was done for Orijen Six
Fish, not the products Plaintiff purchased, Orijen Original and Senior. Second, and

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4.

ANALYSIS
As noted above, the theme of this lawsuit is that while Orijen’s

packaging touts a healthy, fresh, regionally sourced product, containing
ingredients which are biologically appropriate and fit for human
consumption, the heavy metals found within it render these assertions
untrue. (Docket #1 at 3–5).5 Both of Plaintiff’s claims which have survived
to this stage of the case are based on this theme. The first claim (Count I of
the complaint) asserts that Defendants have violated the Wisconsin
Deceptive Trade Practices Act (“WDTPA”), Wis. Stat. § 100.18, by
misrepresenting Orijen’s quality, thereby inducing consumers to purchase
the product at a premium price, when they either would not have paid that
price or purchased the product at all. Similarly, the second claim (Count V
of the complaint) contends that Defendants have been unjustly enriched by
selling dog food at an inflated price which they knew was polluted with
heavy metals. Defendants seek dismissal of both claims. The Court will
address each in turn.
4.1

WDTPA

The purpose of the WDTPA “is to deter sellers from making false
and misleading representations in order to protect the public.” Novell v.
Migliaccio, 749 N.W.2d 544, 550 (Wis. 2008). Toward that end, Section 100.18

more importantly, Plaintiff provides no expert scientific evidence to support her
belief stated in the parenthetical that “in all likelihood” the tested dogs became
sick because of “the astronomical levels of heavy metals” in the food. Such an
assertion cannot be based simply on her say-so.
Plaintiff’s complaint also accuses Defendants of employing similar
deception with respect to their Acana brand dog food. See generally (Docket #1).
However, Plaintiff admitted in her deposition that she never purchased Acana.
The parties do not discuss Acana in their summary judgment submissions, and so
the Court will treat the allegations regarding Acana as withdrawn.
5

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prohibits the use of marketing statements for products or services which
“contain[] any assertion, representation or statement of fact which is
untrue, deceptive or misleading.” Wis. Stat. § 100.18(1). A cause of action
pursuant to Section 100.18 requires proof of three elements: “(1) the
defendant made a representation to the public with the intent to induce an
obligation, (2) the representation was ‘untrue, deceptive or misleading,’ and
(3) the representation materially induced (caused) a pecuniary loss to the
plaintiff.” Novell, 749 N.W.2d at 553.
Defendants offer a number of arguments for dismissal of specific
aspects of Plaintiff’s WDTPA claim. These include that Plaintiff may not
have read certain statements on Orijen’s packaging, (Docket #34 at 15–17),
that other statements she did read are non-actionable opinions rather than
assertions of fact, id. at 17–21, and that none of the statements are rendered
misleading by the mere presence of heavy metals in the food, id. The Court
need not address these arguments because Plaintiff’s claim fails for lack of
evidence as to her most salient allegation—that the heavy metal levels in
Orijen make the food harmful or otherwise of poor quality.
Careful consideration of the precise nature Plaintiff’s claim, the
Court’s statements in the Dismissal Order, and the evidence presented at
this stage, leads to this result. As presented in the complaint, the logic of the
WDTPA claim is as follows. Defendants advertise Orijen as being of high
quality and, accordingly, charge a premium price for the product. Plaintiff
relied on these representations when she made her purchases. However,
the products were, in fact, of low quality because they are “contaminated
with excessive quantities of heavy metals[.]” (Docket #1 at 4) (emphasis
added). Indeed, she claims that the concentrations of such metals in Orijen
are “dangerous,” in that they can cause harm to dogs and are higher than
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that found in human food. Id. at 4–5. Thus, Defendants’ statements of
quality are misleading, and Plaintiff would not have bought Orijen had she
known this. Id. at 5, 8.
In their motion to dismiss, filed more than eight months ago,
Defendants advanced a number of arguments to defeat this claim. First,
they asserted that the claim failed for lack of evidence that the dog food was
harmful. Specifically, the heavy metal concentrations found in Orijen were
disclosed by Defendants themselves in a white paper (the “White Paper”).
(Docket #19 at 4). With reference to the MTA’s MTL analysis, the White
Paper argued that the heavy metal concentrations were well below harmful
levels. Id. at 4, 6. Defendants believed that to survive their motion to
dismiss, Plaintiff was required to adduce evidence which contradicted the
White Paper. Id. at 6. The Court disagreed:
The point of Plaintiff’s lawsuit is to disagree with the
conclusions reached by the White Paper, while nonetheless
relying on its factual representations regarding heavy metal
levels in Defendants’ products. What Defendants need to
counter Plaintiff’s allegations is additional evidence on what
constitutes “safe” concentrations of heavy metals in dog food
and what is meant by “fit for human consumption.” That, of
course, is not the proper subject of a motion to dismiss.
...
Defendants emphasize that Plaintiff “cannot have it
both ways with the White Paper. Plaintiff cannot on the one
hand utilize the White Paper for the alleged levels of heavy
metals in Champion’s dog food while on the other also ignore
the MTLs utilized in the White Paper.” (Docket #17 at 5). To
the contrary, Plaintiff may use Defendants’ data while
simultaneously disagreeing with their analysis thereof. This
is particularly true because Defendants concede that there are
no FDA regulations for the subject heavy metals in dog food.
Id. Certainly, at the appropriate stage, Plaintiff will be called
upon to produce evidence of what is considered safe for dog
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food. Defendants will be free to submit contrary evidence.
The trier of fact will decide who is right.
Id. at 6–7.
Second, and in a similar vein, Defendants argued that Plaintiff’s
allegations did not meet the requisite level of plausibility to state a claim for
relief. Defendants suggested that Plaintiff was obligated to define what she
believed was an “excessive” or “dangerous” level of heavy metals, namely
by reference to scientific studies. Id. at 9. The Court found such allegations
unnecessary. Plaintiff adequately pleaded that the products contained
excessive heavy metals and that Defendants’ deception caused her to buy
them. Id. at 10. Plaintiff was also not required to plead that she or her pet
were physically harmed by the contaminated food. Id. Instead, the thrust of
her complaint is “about paying too much for what she maintains was a lowquality product.” Id.
As with their motion to dismiss, Defendants rest their instant motion
on factual contentions. Now that they have submitted a motion for
summary judgment, their arguments are appropriate and the Court can
address issues of fact. Defendants offer Poppenga’s expert opinion to
establish that their products are not made unsafe by the presence of heavy
metals. In particular, he opines that the MTLs “are the best and most widely
used scientific guidance available to veterinary toxicology and nutrition
experts for determining what are safe levels of heavy metals in dog food.”
(Docket #36-6 at 6–7). Poppenga further notes that Orijen’s heavy metal
concentrations “are present at a safe level” because they are “well below
the respective MTLs.” Id. at 9.

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Plaintiff offers no contrary expert opinions.6 Instead, she makes two
arguments seeking to undermine Poppenga’s opinions, but neither has
merit. First, Plaintiff contends that the MTLs are not as useful as Poppenga
believes. She claims that the MTA is outdated and that it contains
statements suggesting that the MTLs should be used with caution.
Whatever Plaintiff’s personal beliefs about the merit of utilizing the MTLs
as Poppenga has done, her lay views cannot contradict the opinion of an
expert in veterinary toxicology.
Second, Plaintiff notes that the heavy metal levels in Orijen are
higher than those in the chicken, turkey, and eggs tested in the TDS. This
observation is both true and irrelevant. Poppenga notes that the TDS merely
provides the heavy metal concentrations in various store-bought foods. It
does not say whether those concentrations are safe, unsafe, or otherwise
provide a scientific assessment of the data. It is, as the Court earlier
observed in the Dismissal Order, merely a reference chart. (Docket #19 at
8).
Plaintiff thus lacks any affirmative proof that Orijen contains
concentrations of heavy metals which “are excessive, dangerous, and
render [Defendants’] representations regarding the Products, including the
packaging of the Products, false and misleading.” (Docket #1 at 4). Whereas
this was not an issue at the pleadings stage, in the context of summary
judgment, she was required to adduce evidence sufficient for a reasonable
trier of fact to agree with her claim as alleged. While it is undisputed that
Orijen contains heavy metals, Plaintiff has failed to create a genuine dispute
Calder’s opinion is of no help here, as it assumes that Orijen is excessively
contaminated with harmful heavy metals. Calder offers nothing to support that
assumption, which is unsurprising, as his expertise is in marketing, not toxicology.
6

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as to whether the heavy metal concentrations therein are excessive or
dangerous. The Court has no idea whether she was unable to locate an
expert to offer such an opinion, or if she simply chose not to expend the
resources to secure expert testimony on the subject. Either way, she has not
established the essential basis of the claim she pleaded.
Critically, the Court may only consider the claim as pleaded. In
response to Defendants’ motion, Plaintiff expended little effort buttressing
her allegations of excessive heavy metal levels. Instead, she shifted her
focus to other quality concerns, such as the inclusion of plastic, hair, bone,
and other contaminants in Defendants’ products, as well as the far-flung
and potentially unsanitary sources for their ingredients. Her complaint
contains not a whisper about such allegations, however, and she cannot
make such a drastic change to the factual basis of her claim in response to a
motion for summary judgment. Chessie Logistics Co. v. Krinos Holdings, Inc.,
867 F.3d 852, 860 (7th Cir. 2017). Neither does Plaintiff plead a simpler form
of her claim: that Orijen is misleadingly advertised as healthy because of
mere presence of any heavy metals. She decided to plead a rather particular
claim—that the packaging is deceptive because of excessive and dangerous
heavy metals—and failed to prove it. At no time did Plaintiff seek leave to
amend her complaint to adopt either or both of these theories, and the Court
will not grant such relief sua sponte.7
Plaintiff likely did not plead the latter theory because it is absurd. If a
WDTPA claim would lie whenever a product is marketed as healthful, but
nevertheless contains naturally occurring heavy metals at levels not shown to be
harmful, then in light of the data in the TDS, consumers would have grounds to
sue the manufacturer of nearly every product in a typical grocery store. True,
Plaintiff need not show actual injury to herself or her pets. But she must at least
offer some evidence of potential harm to establish a form of genuine deception on
Defendants’ part. Otherwise, every manufacturer would be required to disclose
7

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On the undisputed evidence presented, Plaintiff has not raised a
triable issue as to the second element of her WDTPA claim—that
Defendants’ representations were “untrue, deceptive or misleading[.]”
Novell, 749 N.W.2d at 553. More precisely, she has not adduced evidence
sufficient for a reasonable jury to agree with her theory of the case. Again,
the Court offers no opinion as to whether such evidence could be obtained,
or whether a differently pleaded theory might have survived Defendants’
motion. Nevertheless, as it stands, the WDTPA claim must be dismissed.
4.2

Unjust Enrichment

To establish unjust enrichment, a plaintiff must prove three things:
“(1) a benefit conferred on the defendant by the plaintiff; (2) appreciation
or knowledge by the defendant of the benefit; and (3) acceptance or
retention of the benefit by the defendant under circumstances making it
inequitable to do so.” Sands v. Menard, 904 N.W.2d 789, 798 (Wis. 2017). Two
district courts applying Wisconsin law have held that the benefit in
question must be conferred directly to the defendant and not, for instance, a
third-party retailer. Blitz v. Monsanto Co., 317 F. Supp. 3d 1042, 1055–56
(W.D. Wis. 2018); Emirat AG v. High Point Printing LLC, 248 F. Supp. 3d 911,
936–37 (E.D. Wis. 2017).
Plaintiff makes no attempt to distinguish these cases. She merely
states in a conclusory fashion that Defendants benefitted from her purchase
of Orijen. (Docket #47 at 22–23). While that may be factually correct, it is not
a reasoned basis to ignore the opinions cited by Defendant. The Court
agrees with the other district courts and holds that Sands means what it

that their products contain heavy metals or be barred from making any assertion
of quality about the products.

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says; the benefit conferred must be from the plaintiff to the defendant. The
Court will not expand on that definition where Plaintiff refuses to make
even a minimal effort to supply contrary authority.
Plaintiff’s unjust enrichment claim thus fails for two independent
reasons. First, in accordance with the Court’s analysis of the WDTPA claim,
Plaintiff has failed to raise a genuine dispute of fact as to whether the heavy
metals in Defendants’ products render their marketing statements
misleading. Plaintiff thus cannot establish the inequity required by the third
element of her unjust enrichment claim. Second, it is undisputed that
Plaintiff bought Orijen in various pet supply stores, not from Defendants
directly. Consequently, the first element is also left wanting. The unjust
enrichment claim cannot go to the jury.
5.

CONCLUSION
In light of the foregoing, Defendants’ motion for summary judgment

must be granted and this action will be dismissed with prejudice. Plaintiff’s
pending motion for class certification will be denied as moot. (Docket #39).
The Court will also grant two of Plaintiff’s motions to seal related to a
settlement report and summary judgment submissions, respectively.
(Docket #31 and #46). She filed an additional motion to seal regarding class
certification materials, (Docket #38), but the parties have now stipulated
that the motion is unnecessary, (Docket #58). The Court will therefore deny
the motion to seal as moot.
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #33) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Counts One and Five of Plaintiff’s
complaint be and the same are hereby DISMISSED;
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IT IS FURTHER ORDERED that Plaintiff’s motions to seal (Docket
#31 and #46) be and the same are hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion to unseal
documents filed in support of her motion for class certification (Docket #41)
be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion to seal
documents filed in support of her motion for class certification (Docket #38)
be and the same is hereby DENIED as moot, and the Clerk of the Court is
directed to unseal the attachments to Docket #40 and docket as unsealed
Docket #39-1;
IT IS FURTHER ORDERED that Plaintiff’s motion for class
certification (Docket #39) be and the same is hereby DENIED as moot; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 6th day of February, 2019.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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