US Court: Lawsuit failed to show that Purina’s Beneful sickened thousands of dogs
By From Consumerist
After determining that he could not accept the testimony of an expert witness, a federal court judge has handed a legal victory to Nestle Purina PetCare in a class action lawsuit that claimed the company’s Beneful brand dog food made thousands of dogs ill.
The lawsuit alleged that Beneful contains substances — including propylene gycol; mycotoxins, toxins produced by fungus that occurs in grains; lead; and arsenic — that can lead to problems like internal bleeding and other serious health issues for pets.
The original named plaintiff in the case is a California man who claimed that less than a month after beginning to feed Beneful to his three dogs, all of them became ill and one of them died. He asserted that he was just one of thousands of Beneful customers with similar complaints. (However, it was later learned this this dog passed away as the result of a heart tumor.)
At the time, Purina denied these allegations, saying they were the result of “social media-driven misinformation” that often contains “false, unsupported and misleading allegations that cause undue concern and confusion for Beneful consumers.”
The plaintiffs consulted a veterinarian and expert in veterinary toxicology, who tested Beneful kibble from 28 dogs who allegedly fell ill after eating the dog food; representing only around 2% of the cases supposedly related to the Purina food.
The doctor found measurable levels of mycotoxins, heavy metals, and propylene glycol in the food, but all were within limits of what federal regulators consider safe. However, the vet contended that FDA standards for mycotoxin levels don’t take into account the effects of regular, prolonged exposure to the chemicals — such as you might find in a dog eating the same food twice a day for years on end.
Additionally, the veterinarian testified that the existing standards did not account for interactions between the various toxins he claimed to have found in the Beneful.
“While there have not been conclusive long-term studies of it, there is good reason to think that a synergistic effect of mycotoxins, heavy metals and gylcols could adversely affect dogs’ health,” he testified in his report.
He also told the court that he believes Purina “does not adequately test Beneful for mycotoxins,” by — among other claims — only testing for two types of the toxins, not testing the dog food of sick dogs whose owners believe Beneful may be the cause of the illness, and by — in his opinion — not following Purina’s own policies with respect to adequate sampling.
With regard to testing, the court determined that the veterinarian did not have enough expertise in, or experience with, “pet food manufacturing, testing, sampling, and control procedures,” and his testimony on that subject should be excluded.
The court did find that the doctor is qualified to express opinions about the safety of toxins found in the pet food. However, the court questioned whether the specific opinions given by the veterinarian were based on reliable science.
The plaintiffs had argued that — because they were not claiming negligence, just that Purina should have more transparently disclosed the potential harms posed by these toxins — they didn’t need to show that Beneful caused the illnesses, just that these toxins posed a risk.
The judge was not convinced, saying that the whole idea of risk is that it could ultimately cause a problem. And while the vet based his opinion on “common patterns in the symptoms” of the 1,400 dogs believed to have become ill after eating Beneful, he only considered what toxins could have caused these symptoms without considering other causes unrelated to dog food.
“His conclusions are, in fact, entirely inconclusive,” writes the court [PDF], which says the only way the veterinarian’s findings on these 1,400 fogs could have relevant and probative value, is if there is a “scientific basis for his opinions that chronic exposure to mycotoxins, etc. at the levels at issue may cause health problems in dogs.”
To bolster his conclusions, the vet had cited three previous pieces of research, but again the judge was not won over, ruling that this research does not support his argument that prolonged exposure to the various toxins would affect the health of dogs over their lifespans, and “indicated at most that more research needed to be conducted.” In fact, one of the articles explicitly states that “nothing is known about the synergistic or chronic effects of low mycotoxin exposure on the health risks for dogs.”
Thus, the court barred this veterinarian from offering testimony on the purported health risks of mycotoxins, either alone or in conjunction with other chemicals found in Beneful.
Purina argued that the case should be thrown out, as the plaintiffs could not provide any evidence that Beneful is unsafe.
The court agreed, rejecting the plaintiffs’ assertion that a reasonable jury could conclude that Beneful is unsafe based solely on the 1,400 dogs that may have gotten ill after eating Beneful.
“This is insufficient evidence of causation,” concluded the judge. “Indeed, there is no evidence such as an evaluation by a veterinarian that a dog actually did get sick or die because it ate Beneful.”
For more on this story go to: https://consumerist.com/2016/11/18/court-lawsuit-failed-to-show-that-purinas-beneful-sickened-thousands-of-dogs/
