SAN DIEGO (Legal Newsline) – A pet products company is seeking to dismiss a class action lawsuit filed by a consumer alleging she was misled into buying the company's Real Ham Bone for Dogs product.
Missouri resident Stephanie Brown alleged fraud and negligent misrepresentation against Dynamic Pet Products LLC and Frick's Meat Products Inc. She and her counsel, Brown, Blood Hurst & O'Reardon LLP of San Diego, sought a trial by jury, punitive damages, disgorgement and further relief from the court for Brown, who claimed Real Ham Bone for Dogs damages a dog’s digestive system.
The defense alleges that that Brown did not read the fine print in a memorandum it submitted to the U.S. District Court for the Southern District of California.
"The product label actually contains specific warnings and instructions regarding this risk,” according to the memorandum filed by defense counsel Wilson, Elser, Moskowitz, Edelman & Dicker. “Brown’s complaint ignores plain warnings and disclosures on the label in an effort to fashion a fraudulent scheme, where none could reasonably be found to exist.”
The defense alleges Brown attempted to construe the context.
“Brown does not identify the actual statements made by defendants that are either deceptive or impliedly deceptive. Rather, she takes language from the label out of context and inserts those phrases as she sees fit, and she only provides a few such statements,” according to the memorandum.
For example, Brown alleged Dynamic was deceitful in labeling the product “safe for dogs,” even though the ham bone allegedly splinters.
But Brown, and all other consumers, are warned of the possible danger, the defense states. The product label specifically reads that pets should be supervised when chewing the bone and it is to “be chewed over several sittings and should not be eaten,” according to the memorandum, adding a fresh supply of water should be at hand.
The product label allegedly also warns to remove bone immediately if splintering occurs or small fragments break off, and notes “pet owner assumes liability associated with the use of this or any natural bone product.”
“Far from being deceptive, defendants’ label warns specifically that pet owners should not let their dog eat the bone, and to make sure the bone does not splinter while being chewed. The label also warns that aggressive chewers should not use the product at all. It is hard to image how this label could be part of an alleged scheme to defraud customers by hiding the risk to their pets from these bones splintering,” according to the memorandum.
With “no facts to support the element she has suffered an ascertainable loss and that this loss was caused by the allegedly deception,” according to the memorandum, the defense seeks dismissal of the case.