Lawsuits Build Against Maker of Tainted Pet Food

ByJIM AVILA and the ABCNews Law & Justice Unit

April 3, 2007 — -- The poison pet food crisis is now squarely focused on the reliably damning question: "What did they know and when did they know it?"

Lawyers seeking to certify a Chicago-based class action that now numbers 200 pet owners amended their complaint Wednesday to include charges fraud, in addition to the claims they have already made for negligence and breach of warranty.

They claim that on February 27, following complaints that had been coming in for a week, Menu Foods tested the food on 40 to 50 animals, seven of which "shortly thereafter." On March 6, Menu Foods stopped using a Chinese wheat gluten that turned out to contain the industrial chemical melamine, according to the complaint. The recall began on March 16.

In moving from charges of negligence to fraud, plaintiff lawyers hope to trump the conventional wisdom that pets are considered mere property. A successful fraud suit could generate millions in punitive damages.

"Menu Foods knew about the problem as late as a few weeks before the recall and as early as December 2006,'' lead plaintiff attorney Jay Edelson told ABC News' Jim Avila.

"What's angering our clients most [is that Menu Foods] had tested the food on animals weeks before the recall, knew animals had died, but the first step was to switch the [suspect ingredient],'' lead plaintiff attorney Jay Edelson told ABC News' Law & Justice Unit. "That went on for an additional week.

"They knew a lot of information they kept from the public, and thousands of pets died,'' Edelson said.

Menu Foods did not return several calls for comment.

The U.S. Food and Drug Administration has so far confirmed 14 pets deaths, though The Associated Press reports that anecdotal evidence suggests hundreds or more pets may have died after eating the tainted pet food. Each case must be investigated, evidence collected, and a direct link determined between a pet death and the tainted food before a death can be positively tied to Menu Foods.

Reaction to the recall has been overwhelming. The FDA has fielded more than 300,000 calls from consumers and has logged 10,000 complaints, according to an agency spokesman. Menu Foods has reportedly received more than 8,000 complaints.

Edelson said that a dozen law firms and interest groups, including People for the Ethical Treatment of Animals, have joined the Chicago suit. Dozens more lawsuits against Menu Foods have been filed in the United States in recent weeks, according to an ABC News database search of federal lawsuits.

"We're hearing from people across the country who think their pets would be alive if it weren't for this,'' he said.

Dawn Majerczyk says the pet food scandal has torn her Chicago family apart.

Her family cat Phoenix began acting strangely the week before the recall, and she said she couldn't understand why.

"The cat was crying -- I mean horrible cries,'' she said. "And he couldn't walk or nothing. I mean, he was lying on the bathroom floor downstairs. … I told my kids there's something wrong with this cat. He was like hiding under the table. Just not himself."

She said she took Phoenix to the vet the day the recall was announced, but by that time it was too late.

"I was watching my cat suffer and die, and I couldn't do nothing about it,'' she said.

Majerczyk said the cat was nearly as dear a part of her family as her husband, Sam, or her children, Stuart and Sahra. "We got him when he was 6 weeks old,'' she said. "He was the first pet the kids ever had. He was a spunky little kitten … just a good, all-around cat."

When she first learned she had some of the recalled pet food in her cupboard, she channeled her grief and frustration into a $50 million lawsuit.

"This could have been stopped,'' Majerczyk said.

"When they did that first testing and those animals died, they should have took precautions right then and there,'' she continued. "Instead, they just kept manufacturing the food. And to watch the way this cat died was horrible! I mean, horrible. He couldn't lift his head. He was blind … he urinated all over himself because his kidneys weren't working. It was horrible."

The suit claims Menu Foods knew weeks or even months before that its product was tainted and likely to sicken or kill animals but did not launch a recall.

"Weeks before the recall, Menu Foods had received numerous complaints indicating that the pet food originating from the Emporia, Kan., plant was killing pets,'' according to the lawsuit. It continues, "As a result of these complaints, Menu Foods tested its food on approximately 40 to 50 pets. Seven of those pets died after ingesting the food."

FDA testing of the tainted pet food has revealed that the wheat gluten in the pet food was contaminated with melamine, an industrial chemical often used in plastic furniture and kitchenware. It was not until Tuesday that the agency was able to confirm that the contaminated additive had not been used in any foods for humans.

Traditionally, American courts have viewed pets and other animals as personal property. That means the amount recovered in cases where pets died through negligence has rarely been large.

And although the legal landscape of animal law is beginning to change, some states are beginning to allow pet owners to receive sizable compensation -- the general rule in American courts has been that pets are property.

But the Chicago lawsuit is taking a completely different tack, alleging fraud and seeking punitive damages.

Still, for all the heartbreak, fear and trepidation among the nation's millions of pet owners, some experts say the lawsuit will be an uphill battle.

"It's very difficult to prove fraud,'' attorney Victor Schwartz told ABC News' Law & Justice Unit. "I've rarely seen successful fraud claims. … They are like eclipses of the moon.''

Schwartz said there could be some negative and largely unforeseen effects on the nation's pets if lawsuits against Menu Foods succeed.

"The consequences [could] be bad,'' he said. "If you drive up the liability cost of animals, that spreads out to people who have pets.

The American Veterinary Medical Association has weighed in as well. In 2005, the group studied the legal status of animals and reaffirmed its position that animals should be considered property, according to the Chicago Tribune.

"We're just concerned about fees, costs going up all over the system,'' Adrian Hochstadt, a lawyer with the AVMA told the newspaper. "The last thing we want to see is a duplication of the human health care crisis."

It may take some time to determine exactly how many pets have been affected by the tainted pet food.

"Confirmation that these may be related to the pet food recall takes time and requires follow up by our field staff," the FDA's Vash Klein told ABC News.

"Veterinary reports and other evidence need to be collected for each case before any of these reports can be confirmed. In many instances there is insufficient information available to draw a conclusion about a possible association with pet food consumed and pet illness or death."

Consumers with questions may contact Menu Foods at 866-895-2708. For more information about the tainted products, go to

Consumers who wish to report problems with their pets can go to or can contact the FDA complaint coordinator in their state.

Reporting by Mary Harris, Ellen Davis and Lauren Pearle.

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