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Pet Owner Sues Menu Foods, Kroger

Suit Charges Cat Food Contained Acetaminophen

By Lisa Wade McCormick
ConsumerAffairs.com

July 15, 2007

• RECALL LIST • Consumer Complaints --- News • Mars Petcare Recalls Some Pedigree Dog Food • Expert Finds Unexplained Pet Deaths 'Not Consistent' • Illness, Death Dog Nutro Pet Food • Feds Raid PETCO Warehouse in Illinois • Pet Owners Not Thrilled with Poison Food Settlement • CDC Links 2006 Salmonella Outbreak to Dog Food • FDA Orders Illinois Pet Food Maker to Clean Up Its Act • String of Illnesses Afflicts NUTRO-Fed Pets • Pet Owners Not Thrilled with Poisoning Settlement • Menu Foods Settles Pet Food Class Action • Many Pet Foods Still Missing From Store Shelves • Pet Owners Cheer Indictments in Toxic Pet Food Case • Indictments in Toxic Pet Food Case • Diamond Pet Foods Agrees To $3.1 Million Settlement • Tests Find More Toxic Pet Toys • Finding Safe Toys to Give Your Pet • China Agrees to Stepped-Up Food, Drug Inspections • Menu Foods Denies Acetaminophen Found in its Cat Food • Veterinarians Solve Pet Food Death Puzzle • Menu Foods Agrees to Test for Pain Killer in its Cat Food • Lab Tests Again Find Acetaminophen in Pet Food • Toxic Pet Toys: A Doctor's Advice • Consumers Respond to Toxic Wal-Mart Pet Toy Stories • Federal Import Safety Panel Outlines Proposals • Pet Industry Agrees on Need for Toxicity Standards • Industry Responds to Reports of Lead in Wal-Mart Pet Toys • Wal-Mart Attacks Lab Tests that Found Lead, Chromium in Pet Toys • Wal-Mart Reviewing Results of Tests on China-Made Pet Toys • Lab Tests Find Lead, Other Toxins in Pet Toys Sold at Wal-Mart • CANIDAE Denies Reports of Painkiller in its Pet Food • Lab Tests Find Painkiller in Samples of Pet Food • Purina Denies Claim on Bichon Frise Deaths • FDA Blocks Nutro Pet Food Shipment from Entering U.S. • FDA Testing Dog Treats Pulled from Wal-Mart Shelves • Wal-Mart Finds Melamine in Chinese-Made Dog Treats --- • More about Pet Food Recalls ...

A grieving Washington pet owner on Friday filed a $72,000 lawsuit against Menu Foods and Kroger for emotional and financial damages suffered in the wake of his cat’s death.

But the lawsuit Don Earl filed in Washington’s Superior Court doesn’t allege his cat died from eating melamine-tainted food.

Earl claims his cat, Chuckles, died in January because her food -- Menu Foods’ Pet Pride “Turkey and Giblets” and “Mixed Grill” cat food -- contained the pain killer, acetaminophen.

“According to documents and studies published by the (American Society for the Prevention of Cruelty to Animals) ASPCA, due to their body chemistries, cats are unable to tolerate acetaminophen and no amount of acetaminophen is safe for cats,” Earl writes in his lawsuit. The Port Townsend consumer is representing himself in the case.

As ConsumerAffairs.com reported in June, Earl hired a Texas laboratory to test the food he’d given Chuckles shortly before she died.

He sent samples of the same lots and styles of Pet Pride’s “Turkey and Giblets” and “Mixed Grill” cat food to ExperTox, Inc. of Deer Park, Texas, for analysis.

Those tests detected acetaminophen in the food, ConsumerAffairs.com confirmed. They also discovered the chemical cyanuric acid -- commonly used in pool chlorination -- in the samples.

ExperTox’s tests, however, did not find the chemical the triggered the March recall of millions of containers of pet food: melamine.

The Food and Drug Administration (FDA) discovered melamine in the wheat gluten and rice protein concentrate imported from China and used in the more than 5,600 products that pet food makers have recalled in the past four months.

That chemical -- used to make plastics and fertilizer -- is blamed for the illnesses and deaths of thousands of pets nationwide.

Melamine is not approved for use in pet or human food.

Red Herring

Earl told us he wasn’t surprised that ExperTox’s scientists didn’t find melamine in the Pet Pride food he had tested. Those brands are not included in the nationwide recall.

“Melamine has impressed me as being a red herring since day one,” he said. “The substance has been the subject of credible scientific tests and studies for decades. Nothing supports the theory it could be lethal even in amounts 10 times the highest reported to be present in the food.”

In his lawsuit, Earl alleges that Menu Foods failed to look for other contaminants in the adulterated foods -- ones that could cause the “observed toxic effects” on pets.

“The Plaintiff’s cat 'Chuckles' exhibited symptoms known, from numerous scientific studies, to be consistent with acetaminophen poisoning after consuming pet food shown to have been contaminated with acetaminophen, which was sold, marketed or manufactured by the Defendants,” the lawsuit states.

“The unknown toxin scan used by ExperTox to identify the presence of acetaminophen in pet food is frequently used by pet food companies, is a relatively low cost procedure, and is readily available to both businesses and private parties.”

The lawsuit adds: “No studies conducted since the recall was announced have shown melamine to be the proximate cause of illness or death as a result of dogs or cats consuming the adulterated pet food.”

In his court filing, Earl states he bought the allegedly-tainted Pet Pride cat food on December 28, 2006 at a Kroger store in Silverdale, Washington.

Chuckles

At that time, he states, Chuckles was in good health.

She was also an indoor cat and never exposed household items like cleaning products, medications or plants that are potentially harmful to pets, he said.

According to the lawsuit, Chuckles lost her appetite, became lethargic, was vomiting and drinking excessive amounts of water five days after she started eating the Pet Pride food.

That’s when Earl took her to a veterinarian.

“The veterinarian was unable to positively diagnose the cause of illness, but suspected an infection and prescribed antibiotics,” his lawsuit states. “On January 5, 2007, in addition to earlier symptoms, Chuckles appeared to be having trouble breathing, had lost considerable weight, felt chilled to the touch and appeared to be in a considerable amount of suffering.”

Earl states he then took Chuckles to a second veterinarian.

“After running blood and urine tests on Chuckles, the veterinarian determined Chuckles had lost over 95% of her kidney function and was not expected to live for more than two days. Chuckles died the following day, on January 6, 2007, 10 days after she began eating the above named cat food.”

Misrepresentation

Earl’s lawsuit alleges Menu Foods and Kroger fraudulent misrepresented the products were safe and healthy for pets and concealed information about the food.

“Such misrepresentations, omissions, and concealments of facts include…failing to disclose, and/or intentionally concealing the results of tests showing the potential health risks to companion pets associated with the use of Defendants’ commercial pet foods; failing to adequately test ingredients in the Defendants commercial pet foods to ensure that the ingredients live up to the Defendants’ advertisements; and failing to include adequate warnings ... about the potential actual risks ... and duration of serious adverse effects of the ingredients in the Defendants’ pet foods.”

The lawsuit also alleges Menu Foods and Kroger were grossly negligent, sold defective products, breeched their implied warranties, and engaged in wrongful conduct.

The lawsuit seeks $72,042 in damages -- $517 for veterinary bills, $1523 for laboratory testing, $30,000 for loss of property, and $40,000 in punitive damages, outrage, and pain and suffering.

Why is Earl single-handedly taking this action?

“I want those responsible to look me in the eye and know what they did was unthinkably evil,” he says. “I want justice terrible enough that to the end of their days, they will never poison another Chuckles cat. I want my day in court, in front of a jury of my peers.”

Earl says no amount of money will replace his beloved Chuckles.

But he says filing this lawsuit — and seeking thousands of dollars in damages — is the only way to get a giant corporation’s attention, and hopefully prevent someone else from losing a treasured pet..

“If money is the only tool of justice available to me, then by all I hold dear, I am going to make those responsible for murdering Chuckles pay for their criminal acts,” he says. “The way I feel about the situation, a million dollars would be fair. The situation couldn’t have been worse than if someone had kicked in my front door and shot Chuckles dead while we were sitting together watching a movie. How do you put a price on something like that? The obvious answer is you can’t. There is no practical way to quantify the bond between pets and their owners. It should be, however, possible to quantify justice.”

No Comment

Menu Foods and Kroger could not be reached for comment.

Menu Foods, however, previously declined to comment on ExperTox’s findings of acetaminophen in its food.

The company referred calls to The Pet Food Institute (PFI), which represents the makers of 98 percent of all dog and cat food produced in the United States and calls itself “the voice of U.S. pet food manufacturers.”

“I can assure you that this industry takes the issue of the safety of pet food products with the utmost seriousness,” PFI’s spokesman Kurt Gallagher told us.

He also cast doubts about ExperTox — and its test results.

“Through our contacts in Texas, which is where the lab is located that conducted the analysis, we have learned there is genuine concern among key toxicological and analytical experts about the lab and the actual test results,” Gallagher said.

But the Lab Manager for ExperTox told us her company stood by its finding.

ExperTox’s Donna Coneley also said she didn’t have any idea what Texas experts Gallagher and PFI were talking about.

“They never name the experts they’re working with,” she said. “When someone says ‘people I know say this,’ it sounds to me like they’re trying to say there are experts who have looked into this and don’t agree with the findings. But I don’t believe there are.” To me, it sounds like they’re talking about imaginary experts.”

Coneley said her lab only worked with FDA scientists.

“The pet food manufacturing companies have had ten-minute discussions with us about how we did our tests,” she said. “But they’re not experts.

“The (scientists at the) FDA are the only people we’ve been talking to about our findings.”

The day after that interview, the FDA announced it didn’t find acetaminophen in a handful of dog and cat food samples it tested.

But ConsumerAffairs.com learned the FDA couldn’t confirm it tested the same lots and brands in which ExperTox found the pain medication.

“This case is not closed,” Coneley told us. “They’re (FDA) still requesting samples and data from us. I don’t see by any means that this is over. If it was over and done with, why would they bother spending so much time with us on the phone and arranging for samples to be released?”

When asked why the FDA disputed its findings, Coneley said: “I don’t know their reasoning. What I do know is that when they told me they tested a few samples of cat and dog food, I asked them if they were the same lots and brands that we tested. And they couldn’t confirm that any of them were the same ones we tested.

“We’re using two completely different testing instruments to detect those chemical, and the difference comes into play with the instruments and the instrumentation (used) to detect those chemical.”

Coneley said her lab tested 100 to 150 samples of pet food -- and detected acetaminophen in five of those samples.

The FDA, she said, tested just a few samples of pet food for the pain killer.

“It’s easier to say that we can’t confirm something by looking at a few samples than to really investigate and continue investigating until you know something for sure. I think this might have been a quick way to get everyone off their (FDA) backs.”

Could those “everyone’s” be the Pet Food Institute?

“Maybe there was pressure from them,” Coneley told us.

Coneley said her lab will continue working with the FDA and hopes to foster its relationship with that federal agency.

“We don’t want to build any animosity with the FDA. It’s in our best interest to help them see what we’re seeing.”

Coneley also confirmed her lab didn’t detect melamine in the samples of Pet Pride cat food it tested for Earl.

But it did find that chemical -- and cyanuric acid -- in other samples.

Her lab, however, did not find the rat poison and cancer drug, Aminopterin, in any of the pet food it tested, she said.

Scientists at the New York State Department of Agriculture discovered that toxin in some samples of pet food it tested shortly after Menu Foods announced its recall in March.

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