Illinois-based, Veath Fish Farm, has asked the US District Court in the Southern District of Illinois not to grant the requests sought by Purina Animal Nutrition and Texas Farm Products Company (TFPC) that allegations against them be dismissed in the lawsuit alleging a feed link to mass fish death.
Previously, Purina had requested a partial summary judgment in the case dismissing most of the claims, and TFPC had asked for a summary judgment and to have all claims against it dismissed based on their assertion that no “triable issues of fact” were made.
In subsequent filed response to the requests for summary judgment, Veath asked for TFPC’s requests for summary judgment to be denied as the fish farm has established “sufficient non-speculative evidence to raise an issue of fact to preclude summary judgment."
Veath also asked that Purina’s call for partial summary judgment be denied because “actions and inactions make it subject to punitive damages.”
Purina responded in a filing to Veath’s push against a summary judgment and stated, in the court documents filed, that when all the information is analyzed “Veath’s allegations of improper pre-sale conduct by Purina all quickly melt away. What is left is not even sufficient to support a simple negligence claim."
Purina also repeated its request for a partial summary judgment.
Mark Schuver, lawyer for Veath, said a trial date has been set for December. “We are prepared to move forward with the trial,” he told FeedNavigator.
“Although they knew, or clearly should have known, of these deficiencies, Purina undertook efforts to conceal these problems from consumers, including our client, Veath Fish Farm,” he alleged.
The factual record against Purina and Texas Farm Products (TFPC) is overwhelming, claimed Schuver.
Land O’Lakes, Purina Animal Nutrition’s parent company, told us that the company does not comment on pending litigation.
Case highlights and overview
Veath initially brought the lawsuit after it reportedly experienced a slow-down in fish growth and mass fish death, according to court documents. At the time it had challenges in its fish production, the fish farm had been using two Purina feeds with its largemouth bass (LMB) and had been doing so for several years.
In May 2015, Purina changed where the feed was manufactured, switching from a plant in Indiana to one operated by TFPC, according to case documents.
“Prior to the time that TFPC began manufacturing the feed in May of 2015, Veath had never experienced any significant problem with Aquamax 500 or 600,” according to court documents. “However, in the late summer, fall and winter of 2015, Veath’s LMB began to exhibit poor growth … By late December, Veath had come to the conclusion that the problem with poor growth was occurring only in those ponds that had been fed the TFPC AquaMax.”
After a winter dormancy period, fish reportedly showed symptoms of health problems and disease, the fish farm said in court documents. “Veath suspected that the AquaMax had weakened the [largemouth bass] LMB’s immune systems, which made them more susceptible to the disease and death.”
The aquaculture producer alleges that elements of the feed changed when the manufacturer was shifted and that there may have been some alteration in the temperatures used during production, according to case documents. The potential changes to the feed and its nutritional content also are alleged to be responsible for the drop in growth and fish mortality resulted from the shift, according to case documents.
Additionally, the aquaculture producer said that Purina also received complaints about the fish feeds from other users during the same period and that the company reportedly lost clients, according to court documents.
“In October 2015, Purina received a series of e-mails from Timpner Fish Farm complaining of ‘slow growth’ using AquaMax,” according to court documents. “On October 26, 2015, Purina received additional e-mails from one of its sales specialists, Holly Mezera, stating that another Purina dealer, Harper Feed Mill, was reporting that one of their larger customers could not harvest their fish and had to keep them over the winter ‘due to insufficient growth.’”
In the lawsuit, Veath also alleged that Purina attempted to "conceal" some negative information about the analysis done on the nutritional content of the fish feed, according to court documents.
In its response to the requests for summary judgment, Veath said that a summary judgment is “appropriate” when there is no “genuine issue of material fact” found, according to court documents. In a summary judgement, the court “does not weight the evidence or determine the truth of the matter,” instead it decides if there is “a genuine issue of material fact” and if a trial is warranted.
The fish farm argued that is has presented enough information to “survive summary judgment”, according to court documents.
“Purina’s knowledge, or lack thereof, regarding the defects in the AquaMax product and, therefore, the knowledge that its representations were false at the time they were made, is irrelevant,” the fish farm said in court documents. “Purina engaged in unfair and deceptive acts under the Consumer Fraud Act by making representations on its packaging, with the intent that consumers rely on these representations and purchase the product, and which representations, in turn, were actually false.”
Similarly, the farm said that its negligence claim remains valid and that “punitive damages are available,” according to court documents. The producer also alleges that Purina can be considered liable for “punitive damages” even though TFPC made the feed used because Purina was aware of changes made to the feed formula and had approved them.
Veath said TFPC’s request for summary judgment is based on a “misstatement of the facts in this case.”
