Foge, McKeever LLC v. Zoetis Inc.

565 F.Supp.3d 647

FOGE, MCKEEVER LLC; Todd M. Rooney; and Eldon S. Thompson, Plaintiffs,

v.ZOETIS INC., Defendant.

No.: 2:20-cv-01462-RJC

United States District Court, W.D. Pennsylvania.

Signed September 30, 2021

Ryan James, James Andrew Salemme, Tucker Arensberg, P.C., Pittsburgh, PA, for Plaintiffs.

Joseph H. Blum, Sean P. Wajert, Pro Hac Vice, Shook, Hardy & Bacon L.L.P., Philadelphia, PA, for Defendant.

OPINION

Robert J. Colville, United States District Judge

Presently pending before the Court is a Motion to Dismiss filed on behalf of Zoetis Inc. ("Zoetis") (ECF No. 13). The matter has been fully briefed and is ripe for disposition.

I. Background and Factual Allegations

This products liability action was brought by Plaintiffs Foge, McKeever LLC (hereinafter "FML"), Todd M. Rooney and Eldon S. Thompson (collectively "Owners") as a result of the sudden death of their filly racehorse after receiving injections of a drug developed and manufactured by defendant Zoetis Inc.

The allegations in the Amended Complaint (ECF No. 12) ("Am. Compl.") are as follows. Plaintiffs owned a 3-year old Standardbred filly known as Saratoga Gia ("SG"), at all relevant times stabled at the Meadows Racetrack located in Washington County, Pennsylvania. (Am. Compl. ¶ 9). On or about April 7, 2020, via an equine veterinarian, SG received an injection of Excede (ceftiofur crystalline-free acid) manufactured and distributed by defendant Zoetis to address a minor puncture wound. (Am. Compl. ¶ 10). The Owners’ equine veterinarians relied upon representations made by Zoetis concerning the efficacy and safety of Excede in recommending the use of Excede. (Am. Compl. ¶ 11).

On or about April 11, 2020, per Zoetis’ specific recommendations, SG was administered a second dosage of Excede via an equine veterinarian. (Am. Compl. ¶ 12). Almost immediately after the second administration of Excede, SG experienced a severe reaction to the drug, causing her to collapse to the floor of the stall and never get up. (Am. Compl. ¶ 13). Due to the extreme distress caused by the administration of Excede, SG was provided with continuous veterinary care up to including her transport on April 13, 2020, to the Galbreath Equine Center, of the Ohio State University ("OSU"), in Columbus, Ohio, for additional emergency treatment. (Am. Compl. ¶ 14). Despite the emergency treatment, on April 15, 2020, SG passed away while under the care of OSU; SG died as a result of the administration of Excede, as directed. (Am. Compl. ¶ 15). The Owners notified Zoetis of SG's death caused by the Excede injections. (Am. Compl. ¶ 16). Prior to the Excede injections, SG was a promising and successful racehorse. (Am. Compl. ¶ 17).

Upon information and belief, Zoetis is acutely aware of similar adverse equine reactions to the injection of Excede in horses, but willfully, intentionally, maliciously and negligently ignored the risks associated with injections of the drug and failed to adequately warn of those dangers. (Am. Compl. ¶ 18). Numerous other similar adverse reactions, including those with fatal outcomes, have occurred throughout the United States and elsewhere, and have been reported to Zoetis since at least 2012 and continuing through 2020. (Am. Compl. ¶ 19). Upon information and belief, from 2010 through at least 2020, nearly 600 adverse reaction reports were made by Zoetis to the Federal Drug Administration ("FDA") for Excede reactions experienced by horses in the United States. (Am. Compl. ¶ 20). Zoetis was fully aware that adverse reactions to the administration of Excede have included fatal reactions, internal hemorrhaging, anaphylaxis, and other systemic-type reactions. (Am. Compl. ¶ 21). In many of these instances, the affected horses were provided with extensive and expensive veterinary care and treatment, and the owners of the animals have absorbed veterinary costs as well as the diminished or ruined value associated with the horses who have died. In the case of SG, veterinary bills, other expenses and lost income (including, without limitation, lost breeding income) exceed $1.8 million dollars. (Am. Compl. ¶ 22). Upon information and belief, many of the horses who have suffered adverse reactions to the administration of Excede are performance animals. (Am. Compl. ¶ 23).

It is further alleged that Zoetis was aware of the adverse reactions to Excede, and the resulting veterinary costs and diminished or eliminated value of the afflicted horses. (Am. Compl. ¶ 24). Despite its knowledge of the severely debilitating and/or fatal reactions to the administration of Excede, Zoetis has neither disclosed nor adequately warned of Excede's danger to horses and has refused to adequately revise its warning label and prescribing information to reflect the significant negative effects of Excede. As a result, consumers, including the Owners, and treating veterinarians are left with no way of knowing of the considerable risks associated with the administration of Excede. (Am. Compl. ¶ 25). Had the Owners’ equine veterinarians been adequately warned of Excede's dangers they would not have used Excede on SG and recommended a different course of treatment. (Am. Compl. ¶ 26). The Owners’ equine veterinarians have ceased using Excede due to its dangerous propensities. (Am. Compl. ¶ 27).

Excede is an antibiotic expressly marketed as treating equine infections with a "two dose, one solution" treatment for ill horses. (Am. Compl. ¶ 28). Zoetis further markets Excede as doing in 2 doses what would otherwise take 10. (Am. Compl. ¶ 29). Excede is also prescribed by veterinarians for off-label uses. (Am. Compl. ¶ 30). Excede allegedly works through an extended release formulation, which, upon gaining FDA approval in 2010, Zoetis touted as a "true innovation." (Am. Compl. ¶ 31). Because of Excede's extended release formulation, Zoetis claims that its treatment of horses is easier and more effective because it allows owners and veterinarians to administer treatment with less stress to the animal. (Am. Compl. ¶ 32). Excede is extensively promoted and marketed for use with stabled animals, such as SG. (Am. Compl. ¶ 33). For performance horses such as SG, administration of a 10-day course of nonextended release antibiotics is a relatively easy task that has been accomplished in the horse industry for many decades. (Am. Compl. ¶ 34).

It is further alleged that despite viable alternatives, and the known risks regarding the negative post-approval experiences suffered by, at least, hundreds of horses, Zoetis has willfully, intentionally, maliciously, and negligently refused to make alterations to Excede's label to adequately warn consumers of the dangers of Excede and continues to extensively market the product as being superior to traditional courses of antibiotic treatment for injured horses. (Am. Compl. ¶ 35).

Plaintiffs’ Amended Complaint contains claims for Negligence (Counts I-III), Strict Liability (Counts IV-VI), Breach of Express Warranty (Count VII), Breach of the Implied Warranty of Merchantability (Count VIII), Fraudulent Misrepresentation and Concealment (Count IX), and Negligent Misrepresentation (Count X) against Zoetis for the loss of their horse. They claim entitlement to actual, compensatory, consequential and punitive damages as a result of Zoetis’ allegedly defective design and manufacture of Excede. (Am. Compl. at ¶ 22).

II. Standard of Review

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz , 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will likely prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins , 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A "formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 554, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). The Supreme Court of the United States has explained:

The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of ‘entitlement to relief.’ "

Id. (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ) (internal citations omitted).

III. Discussion

A. Counts I, II, and II: Negligence

Plaintiffs assert products liability claims premised on negligent failure to warn, negligent defective design, and negligent manufacturing defect. Defendant moves to dismiss these claims, alleging Plaintiffs have failed to allege facts with sufficient plausibility. In products liability claims sounding in negligence, Pennsylvania courts follow the Restatement (Second) of Torts. Smith v. Howmedica Osteonics Corp., 251 F. Supp. 3d 844, 852–53 (E.D. Pa. 2017)....