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Class Suffers Setback in Toxic Dog Treat Suit

CHICAGO (CN) - A federal judge dismissed claims against the stores that continue to sell Nestle Purina's chicken jerky dog treats, which allegedly killed plaintiffs' dogs.

Lead plaintiff Dennis Adkins says he bought Yam Good dog treats from Wal-Mart in March 2012 for his 9-year-old Pomeranian, Cleopatra. Waggin' Train, a Nestle Purina company, makes the chicken jerky and yams treats in China.

"Between March 13, 2012 and March 15, 2012, Mr. Adkins gave one of the treats to Cleopatra daily, which he chopped into two to three pieces," the lawsuit states. "Mr. Adkins made no other changes in her diet."

"Immediately thereafter, Cleopatra became sick and, on March 26, 2012, died of kidney failure."

"Mr. Adkins owns another nine year old Pomeranian, named Pharaoh," the complaint continues. "Mr. Adkins did not feed any of the 'Yam Good' treats to him. Pharaoh did not become ill."

Other class members' dogs died or became ill shortly after being fed these treats and without any other change in diet.

Although the FDA has issued a warning about the safety of the product, Waggin' Train continues to market its treats as "wholesome" and "nutritious."

The complaint also names Wal-Mart, Target, Cosco, BJ's, CVS, Pet Supplies, and Walgreens as defendants for selling the allegedly contaminated treats.

U.S. District Judge Robert Gettleman handed the class a setback last week, finding that the laws of the plaintiffs' home states should be applied to each plaintiff's claims.

"In the instant case, 19 out of 21 plaintiffs allege that they reside in states other than Illinois and that they purchased the chicken jerky treats and fed them to their pets in their home states. With the exception of the two plaintiffs who reside in Illinois, the complaint alleges no other facts tying any of defendants' alleged misconduct or the plaintiffs' alleged injuries to Illinois," the judge said.

Therefore, a number of plaintiffs' claims were dismissed because they are preempted by product liability statutes in their home states of Connecticut, Louisiana, New Jersey, Ohio, Tennessee, and Washington.

Gettleman also dismissed most allegations against the stores that sold Yam Goods. Plaintiffs claimed that the sellers were not "'innocent' because they were warned about the dangers these treats cause yet continued to sell them. However, as noted above, mere service of process in this case says nothing about their knowledge at the time of plaintiffs' purchases," the judge said.

However, Waggin' Train cannot defend itself by claiming plaintiffs did not rely on any alleged misstatements about the treats' safety.

Plaintiffs' say they relied on statements printed on the jerky treats' packaging extolling the treats health benefits, which is sufficient to survive a motion to dismiss, the judge ruled.

In addition, "plaintiffs have alleged facts sufficient to plausibly suggest the existence of a defect in defendants' chicken jerky treats. Plaintiffs also allege that they paid valuable consideration for these 'toxic' treats which harmed their dogs. Thus, plaintiffs have adequately alleged a claim for unjust enrichment," Gettleman found.

Class counsel did not return a request for comment.

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