Knapp v. Zoetis Inc.

ASHLEY KNAPP, on behalf of herselfand all others similarly situated, Plaintiff, v. ZOETIS INC., Defendant.

Civil Action No. 3:20cv191

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

March 31, 2021

MEMORANDUM OPINION

This matter comes before the Court on two motions:

(1) Defendant Zoetis Inc's ("Zoetis") Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)¹ ("Motion to Dismiss"), (ECF No. 4); and,

(2) Zoetis's Motion to Strike Class Allegations (the "Motion to Strike"), (ECF No. 6);

Plaintiff Ashley Knapp responded in opposition to the Motion to Dismiss and the Motion to Strike, (ECF Nos. 15, 16), and Zoetis replied, (ECF Nos. 18, 19).

The matter is ripe for disposition. The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid in the decisional process. The Court exercises jurisdiction pursuant to 28 U.S.C. §§ 1332(a) and (d).² For the reasons that follow, the Court will grant in part and deny in part the Motion to Dismiss and grant the Motion to Strike.

I. Factual³ and Procedural Background

This seven-count product liability action arises from a veterinarian's use of Excede, a Zoetis-developed equine antibiotic, on Knapp's horse Boomer. Knapp alleges that after the veterinarian administered Excede to Boomer, the horse developed serious medical complications leading to "persistent lameness" and permanent damage to the "musculature in his neck." (Compl. ¶ 24.) Knapp alleges that Zoetis had knowledge of similar negative reactions to Excede between 2012 and 2019, but "has not disclosed or adequately warned of Excede's danger to horses." (Id. ¶¶ 22-23.)

A. Factual Background

Zoetis, the world's largest "animal health company," "manufactures and distributes an injectable, extended release antibiotic for equines with the brand name Excede." (Compl. ¶¶ 3-4.) Zoetis markets Excede "as treating equine respiratory infections with a 'two dose, one solution' treatment." (Id. ¶ 34.) Veterinarians also prescribe Excede "for off-label uses." (Id.)

1. Boomer Experiences an Adverse Reaction to Excede

Knapp owns Boomer, a seven-year-old Hanoverian gelding, who "was at all relevant times stabled at a boarding facility known as Linmoorland Farm located in Gloucester, Virginia." (Compl. ¶ 8.) On August 13, 2016, Boomer began to suffer from leg swelling while at Linmoorland Farm. (Id. ¶¶ 9-10.) A veterinarian (the "Linmoorland Veterinarian") was immediately called "to examine, diagnose, and treat Boomer" and "[a]s a part of the treatment . . . administered an injection of Excede to Boomer." (Id. ¶¶ 11-12.) Within an hour of treatment with Excede, "Boomer began to show signs of extreme pain, including abnormal vocalization (screaming whinny), abnormal sweating, spinning in his stall, striking out, buckling of the hind end and inability to walk normally, stretching and turning his neck repeatedly, and biting at the air with his teeth bared." (Id. ¶ 13.) The Linmoorland Veterinarian returned to the stable and observed that Boomer was becoming "increasingly lethargic and was unable to raise his head normally. . . . [his] gums had turned white, and a toxic line had appeared." (Id. ¶ 15.) The Linmoorland Veterinarian referred Boomer to Blue Ridge Equine, a nearby animal hospital, "for emergency treatment." (Id. ¶¶ 16-17.) There, the treating veterinarian "diagnosed Boomer with a reaction to the Excede injection, and . . . ruled out colic as a source of Boomer's symptoms." (Id.) "Boomer was treated for his symptoms at Blue Ridge for two days, and duringthe course of that treatment, an ultrasound detected a pocket of fluid on the neck at the injection site." (Id. ¶ 18.)

Boomer returned to Linmoorland Farm two days later, on August 15, 2016, and "was observed standing abnormally with his hind legs underneath him, which is an indication of pain and discomfort." (Id. ¶ 19.) "Over the ensuing days, a large of patch of swelling and leathery skin spread over most of the left side of Boomer's neck." (Id.)

Knapp states that prior to treatment with Excede "Boomer was a successful, young show hunter" but he has since "experienced persistent lameness, and the musculature in his neck has been permanently damaged." (Id. ¶¶ 24, 26.) "Consistent veterinary treatment . . . has been unable to return Boomer to soundness necessary for a performance horse." (Id. ¶ 25.)

2. Excede Causes Similar Adverse Reactions in Other Horses

On August 18, 2016, Knapp "notified Zoetis of Boomer's severe reaction to the Excede injection." (Compl. ¶ 20.) In response, Dr. Maureen Dower of Zoetis informed Knapp "that a similar reaction had occurred on or about October 29, 2014 to a horse located in Vermont." (Id. ¶ 21.) Knapp alleges that "numerous other similar reactions, including ones with fatal outcomes, have occurred throughout the country and have been reported to Zoetis since at least 2012 and continued through 2019, including several recent severe or fatal reactions in the Charlottesville and Middleburg areas of Virginia." (Id. ¶ 22.) Knapp asserts that from 2010 through December 2018, "nearly 600 adverse reaction reports were made by Zoetis to the FDA for Excede reactions experienced by horses in the United States." (Id. ¶ 28.)

Knapp states that equine reactions to Excede "have included fatal reactions, internal hemorrhaging, anaphylaxis, other systemic-type reactions, and site reactions ranging from debilitating to minor with complications that have included, but are not limited to swelling,muscle damage, pain, and scarring at the injection site." (Id. ¶ 29.1.)⁴ Knapp alleges that, while the severity of the reaction and symptoms varied in each individual case, "[i]n many of these instances . . . the affected horses were provided with extensive and expensive veterinary care and the owners of the animals have had to absorb those costs as well as the diminished value associated with those horses." (Id. ¶ 29.2.) "On information and belief, the veterinary bills for each of the majority of the approximately 600 afflicted horses would have been well into the thousands, and in some of the more extreme cases, in excess of $10,000.00." (Id. ¶ 30)

3. Zoetis Becomes Aware of Excede's Harmful Effects

Knapp alleges that "Zoetis was made aware of these adverse reactions, and the resulting veterinary costs and diminished value of the afflicted horses." (Compl. ¶ 31.) Despite this knowledge, "Zoetis has refused to revise Excede's warning label and prescribing information to reflect the significant negative post-approval experience." (Id. ¶ 32.2.)⁵ As a result, the majority of "consumers and prescribing veterinarians are left with no way of knowing of the considerable risk associated with the administration of Excede." (Id.)

Knapp alleges that Zoetis also made a number of affirmations about and descriptions of Excede, including that:

a. Excede provides peace of mind knowing that the antibiotic has been demonstrated to be safe and effective in horses.

b. In a safety study, swelling [at the injection site] completely resolved within 7 days in the majority of cases.

c. Excede makes the treatment process less stressful for you and your horse.d. Excede may cause some transient swelling and edema around injection site.

e. No cases of necrosis, abscess or drainage were reported in the clinical studies.

(Id. ¶ 83 (internal quotations omitted).) Knapp asserts that Excede "did not conform to Zoetis'[s] express representations because an injection of Excede caused serious harm, stress, and permanent damage to Knapp's horse when used as recommended and directed." (Id. ¶ 85.)

B. Procedural History

On March 23, 2020, Knapp filed her twenty-one-page Class Action Complaint in this Court, bringing seven counts against Zoetis:

Count I: The Negligence Claim:⁶Zoetis "failed to exercise ordinary care in the design, formulation, manufacture, sale, testing, quality assurance, quality control, labeling, marketing, promotions and distribution of Excede into interstate commerce" and that negligence caused "Knapp, and others similarly situated [to] sustain[] damages to their horses;"

Count II: The Failure to Warn Claim (New Jersey Law): Zoetis, while "aware of the dangers posed by Excede," failed to "to provide an informative, accurate, and adequate warning label" in violation of the New Jersey Product Liability Act;

Count III: Defective Design and Manufacture (New Jersey Law): Zoetis created Excede so that it was "unreasonably dangerous for the use in horses to which it would ordinarily be put and for its foreseeable purposes" in violation of the New Jersey Product Liability Act;

Count IV: Breach of Express Warranty (New Jersey Law): Zoetis "expressly warranted that the Excede antibiotic was safe and reasonably fit for its intended use in the treatment of horses through its information containing affirmations of statements of facts, promises, and descriptions regarding the product" but Excede "did not conform to Zoetis' express representations" in violation of the New Jersey Commercial Code;

Count V: Breach of Implied Warranty (New Jersey Law): Zoetis "knew of theuse for which Excede was intended and impliedly warranted that it was of merchantable quality and safe for such use and reasonably safe" but "was, in fact, unfit and unmerchantable and unreasonably dangerous for its foreseeable and intended uses" in violation of the New Jersey Commercial Code (collectively with Counts II, III, and IV, (the "New Jersey Claims"));

Count VI: Breach of Express Warranty (Virginia Law): Knapp, on behalf of herself only, asserts that Zoetis "expressly warranted that the Excede antibiotic was safe and reasonably fit for its intended use in the treatment of horses" yet Excede "did not conform to Zoetis' express representations because an injection of Excede caused serious harm, stress, and permanent damage to Knapp's horse when used as recommended and directed;"

Count VII: Breach of Implied

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