Home/W.D. Washington/Rydman v. Champion Petfoods USA, Inc.

Rydman v. Champion Petfoods USA, Inc.

District Court, W.D. Washington·Decided March 25, 2024·No. 2:18-cv-01578·Unknown

Opinion

7 UNITED STATES DISTRICT COURT AT SEATTLE DIVISION 9

HOLLY RYDMAN, ) Case No. 2:18-CV-01578-JHC 10 ) 11 Plaintiff, ) ) PRETRIAL ORDER 12 v. ) ) 13 CHAMPION PETFOODS USA, INC., a ) 14 Delaware corporation, ) ) 15 Defendant. ) ) 16 ) ) 17

18 JURISDICTION 19 This Court had original jurisdiction over all causes of action asserted herein under the Class 20 Action Fairness Act, 28 U.S.C. §1332(d)(2) (CAFA), because the matter in controversy exceeds 21 the sum or value of $5,000,000, exclusive of interest and costs, and more than two-thirds of the 22 Class reside in states other than the states in which Defendant is a citizen and in which this case is 23 filed. No exceptions to jurisdiction under 28 U.S.C. §1332(d) apply. Although the Court denied 24 Plaintiff’s Motion for Class Certification, it retains jurisdiction over this case under CAFA. See 25 United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union, 26 AFL-CIO, CLC v. Shell Oil Co., 602 F.3d 1087, 1089 (9th Cir. 2010). 27 2 At trial Plaintiff will pursue claims under Washington’s Unfair Business Practices and 3 Consumer Protection Act, RCW § 19.86.010, et seq. 5 1. Champion manufactures a variety of dry kibble dog food diets (also called formulations) under the ORIJEN and ACANA brand names. 6 2. Plaintiff resides in the state of Washington. 7 3. Champion Petfoods manufactured its dog food at issue in this case in Kentucky. 8 4. Champion Petfoods sold its dog food in the stream of commerce. 9 5. Plaintiff purchased the following ten Champion diets: Acana Heritage Free-Run 10 Poultry, Acana Heritage Freshwater Fish, Acana Heritage Meats, Acana Regionals 11 Grasslands, Acana Regionals Meadowland, Acana Regionals Wild Atlantic, Acana Singles Duck & Pear, Acana Singles Lamb & Apple, Acana Singles Pork & Squash, 12 and Orijen Six Fish. 13 ISSUES OF LAW 14 15 The following are the issues of law to be determined by the court: 16 1. Whether Defendant engaged in an unfair1 or deceptive act or practice. 17 1 Champion’s position is that Plaintiff did not plead that Champion engaged in an “unfair” act or 18 practice. Count I of Plaintiff’s Third Amended Complaint only alleges “deceptive” acts or 19 practices and does not allege any “unfair” acts or practices. See Dkt. 156 at ¶¶ 238-251. Likewise, in opposing Champion’s motion for summary judgment, Plaintiff did not argue that Champion had 20 engaged in an “unfair” act or practice. See Dkt. 128. Accordingly, because Plaintiff has not pled the theory of an “unfair” act or practice in violation of the Washington Consumer Protection Act, 21 it should not be an issue for the jury’s consideration. Plaintiff’s position is that she properly pleaded unfair or deceptive practices as required under Washington law that states: “a deceptive act must 22 have the capacity to deceive a substantial portion of the population [] and ‘misleads or 23 misrepresents something of material importance’” Lucero v. Cenlar FSB, No. C13-0602RSL, 2014 WL 2972374, at *2 (W.D. Wash. July 1, 2014).See Dkt. 156 at ¶¶238-251 (discussing 24 misleading, materiality, and deceptive nature of claims). Champion is trying to dissect the statutory language improperly that clearly states it is unfair or deceptive practices. Aa Champion solely 25 attacked the deceptive nature of the claims at summary judgment, Plaintiff responded as to the arguments Champion made. 26 27 1 2. Whether the act or practice occurred in the conduct of Defendant’s trade or 2 commerce.2 3 3. Whether the act or practice affects the public interest. 4 4. Whether Plaintiff was injured in either her business or her property. 5 5. Whether Defendant’s act or practice proximately caused Plaintiff’s injury. 6 6. Whether Plaintiff is entitled to a full refund. 7 7. Whether Plaintiff is entitled to enhanced (up to treble) damages. 9 Each party shall be limited to two (2) expert witness(es) on the issues of liability and 10 damages under the Consumer Protection Act and damages. 11 The name(s) and addresses of the expert witness(es) to be used by each party at the trial 12 and the issue upon which each will testify is: 13 On behalf of Plaintiff: 1. Bruce Silverman – 3168 Dona Mema Place, Studio City, CA 91604 – Marketing 14 – will testify. 15 2. Stephan Boedeker – 2200 Powell Street, Suite 1200, Emeryville, CA 94608 – 16 Damages – will testify.

17 On behalf of Defendant: 18 1. Dr. Robert H. Poppenga, DVM, PhD – UC Davis School of Veterinary Medicine Maddy Lab, Davis, CA 95616 – may call.3 19 20

21 2 The parties have stipulated and agree that the act or practice in question occurred in the conduct of Defendant’s “trade or commerce.” Therefore, this element of the CPA is satisfied, and the jury 22 does not need to address it. 23 3 Champion lists Dr. Poppenga as a “May Call” witness in response to conferral with Plaintiff’s counsel indicating her potential use of heavy metals or pentobarbital-related exhibits at trial, which 24 in turn requires Dr. Poppenga to contextualize these substances for the jury. Champion contends that all testimony and evidence pertaining to heavy metals and pentobarbital are irrelevant and 25 outside of the scope of this litigation, as it would violate the court’s summary judgment ruling which dismissed heavy metals from this case and the plaintiff’s agreement to voluntarily dismiss 26 her pentobarbital claims. Dkt. 145; Dkt. 109, n.2 (explaining August 9, 2022 stipulation to drop 27 pentobarbital-related theories). Champion is filing a motion in limine to exclude all testimony and evidence pertaining to heavy metals and pentobarbital, and thus Dr. Poppenga’s testimony at trial 2 The names and addresses of witnesses, other than experts, to be used by each party at the 3 time of trial and the general nature of the testimony of each are: 4 On behalf of Plaintiff: 5 1. Plaintiff Holly Rydman (LIVE)– 1904 Overhulse Rd. NW, Olympia, WA 98502 will testify regarding her Champion Petfood purchases and the unfair and 6 misleading packaging. 7 2. Peter Muhlenfeld (LIVE) (adverse) – [address unknown] - will testify regarding 8 Champion Petfoods generally, including marketing, consumer research and manufacturing practices. 9 3. Jeff Johnston (LIVE) (adverse) – [address unknown] - will testify regarding 10 Champion Petfoods generally, including marketing, consumer research and manufacturing practices. 11 12 4. Chris Milam (LIVE) (adverse) – [address unknown] - will testify regarding Champion Petfoods generally, including marketing, consumer research and 13 manufacturing practices. 14 5. Jason Arnold – (may call by video) regarding Champion Petfoods’ marketing and manufacturing practices. 15 6. Jonathan Ellison – (may call by video) regarding Champion Petfoods’ marketing 16 and manufacturing practices. 17 7. Amanda Flowers – (may call by video) regarding Champion Petfoods’ marketing 18 and manufacturing practices. 19 8. Bonnie Gerow – (LIVE) (adverse) or (may call by video) regarding Champion Petfoods’ marketing and manufacturing practices. 20 21 22 is also dependent upon the court’s ruling as to that motion. By naming Dr. Poppenga, Champion 23 reserves its objections to the admissibility of heavy metal or pentobarbital evidence under Rules 401 and 403. By email dated March 14, 2024, Plaintiff advised Defendant that she does not intend 24 to put in any heavy metal evidence or other contamination evidence unless Defendant “opens the 25 door” by putting in evidence for which heavy metal or other contamination might be called for to rebut.

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Rydman v. Champion Petfoods USA, Inc., (W.D. Wash. 2024).

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