What a company knows and when is a critical question in any case involving recalled products. And the answer can be complicated, especially when a manufacturer announces multiple recalls and expands on previous recalls.
In early September, Mid-America announced a voluntary recall of one lot of its Victor Super Premium Dog Food due to potential salmonella contamination after the South Carolina Department of Agriculture sampled the dog food in a random test. On October 30th, Mid-America announced a second voluntary recall covering three lots of Victor Super Premium Dog Food Select Beef Meal & Brown Rice Formula after random sampling by a third-party revealed salmonella contamination. And on November 9th, Mid-America announced it was expanding the earlier October recall to include three additional dog foods because other product lots from the same facility also tested positive for salmonella.
Now, Mid-America is facing a possible class action in the US District Court for the Eastern District of Texas. On November 28, 2023, two consumers from Utah and Nevada filed Andersen et al., v. Mid-America Pet Food, LLC, no. 5:23-cv-00140 (ED Texas November 28, 2023), asserting violations of state consumer protection laws, and claims for breach of warranty, negligence, negligent misrepresentation, fraudulent concealment, and unjust enrichment. The plaintiffs allege that Mid-America’s marketing and advertising is false, misleading, and deceptive to consumers because the pet products sold are contaminated with salmonella. They also claim their dogs had to be euthanized after eating the contaminated pet food, and one plaintiff said she and her son became ill at the same time after handling the contaminated product.
In their complaint, the plaintiffs also detail the chronology of Mid-America’s various recalls, and they assert that the company (1) failed to adequately test, screen, and/or inspect the food of pets before sale, (2) owes them a duty. to immediately recall and remove all affected pet food products from the market. This is not the first time consumers have used multiple or expanded recalls to indicate a defendant knew of and failed to disclose an alleged defect or breached its duty to consumers. For example, just last year, plaintiffs in Kroutilin v. FCA US, LLC—an action involving an alleged defective electrical control system in a vehicle—argued in opposition to a motion to dismiss that the defendant’s limited scope of recalls demonstrated a pattern of concealment and improper denial to the alleged defect. 2022 WL 18278602, at *1 (CD Cal. Dec. 7, 2022). However, in crookedthe court granted the defendant’s motion, concluding that those allegations were insufficient to establish a duty to disclose. Id. at *7-8. Whether MidAmerica will move to dismiss on similar grounds remains to be seen. The Court at Anderson has granted the company’s request for an extension of time; MidAmerica now has until February 5, 2024 to respond to the plaintiffs’ complaint.
