Judge: Not enough proof Pur Luv treats caused dog injuries, deaths to let class action vs Sergeants march on

By Scott Holland | Sep 26, 2018

A federal judge has declined to allow a class action lawsuit to move forward, which places blame for dog deaths and injuries on Sergeant’s Pur Luv treats, saying plaintiffs failed to present evidence showing the treats are unsafe.

Judge Sara Ellis issued an opinion Sept. 19 in Chicago in a matter that originated more than three years ago. In June 2015, three named plaintiffs — including residents of Kane and Sangamon counties in Illinois and formerly of Jefferson County, Ky. — sued Omaha, Neb.-based Sergeant’s Pet Care Products, saying dogs can’t properly digest the treats.

“Far from being wholesome and healthy for dogs, the treats can cause serious injury, illness, and even death,” the original complaint alleged. “Specifically, certain parts of the treat tend not to dissolve or otherwise break down after dogs ingest them, but instead persist as rock-hard chunks which can cause bowel obstructions and other serious injuries — including death.”

Sergeant’s also moved to strike the opinions of the plaintiffs’ expert, Dr. Kelly Swanson, an associate professor of comparative animal nutrition at the University of Illinois at Urbana-Champaign’s Department of Animal Sciences, saying his opinions lack sufficient basis in facts and data and are based on unreliable methodology.

Ellis disagreed, finding Swanson “adequately qualified to opine on the digestibility and testing methods of dog treats,” and said his method is scientifically valid, granting space for Sergeant’s to address any potential blind spots during cross examination.

The plaintiffs questioned the credibility of defense expert Dr. Jörg Steiner, including his testimony on the company’s adverse events database, which tracked hundreds of consumer complaints dating to February 2011. Ellis agreed in part, noting it made sense for Steiner to review the data, but pointing out he doesn’t “explain how adverse event report rates correlate to actual incidence rates of adverse events in the field.” Still, she allowed the preponderance of his testimony.

Turning to class certification, Ellis rejected the request for two reasons: first, a lack of common allegations that would be more significant than individual accounts; and second, the failure to show how an injunction would provide appropriate relief for individuals or the class.

Even the plaintiff’s expert, according to Ellis, “was unwilling to categorically say that the

Pur Luv Treats are unsafe,” going only so far as to say, “the risk level is higher than other ones we’ve tested. To say safe or unsafe is probably difficult to put them all in one or the other categories. Like, you know, all or nothing.”

Steiner tried to recreate Swanson’s tests on Pur Luv and other treats and reached comparable results. According to Ellis, “this testing does not support the hypothesis that dissolution rates alone are sufficient to establish the safety of a particular food item for the general population of dogs.”

Ellis also said of the four named plaintiffs, only three took their sick dogs to a veterinarian and none of those doctors said the treats conclusively caused the illness.

She likewise rejected the plaintiffs’ request to force a recall of all Pur Luv treats, saying such a move would put the onus on the court to set a standard for a safe dog treat — something even the plantiffs’ expert failed to establish. The plaintiffs’ further don’t show how they are damaged if Sergeant’s continues to market the treats and noted simple refunds “of the product’s purchase price would make the plaintiffs whole.”

The plaintiffs have been represented by attorneys Joseph J. Siprut, Richard L. Miller II, Todd McLawhorn and Gregg M. Barbakoff, of the firm of Siprut PC, of Chicago.

Sergeant's is defended by attorneys with the firm of Polsinelli P.C., of Kansas City, Mo., and Chicago.

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Polsinelli PC Siprut P.C. U.S. District Court for the Northern District of Illinois

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