359 F. Supp. 3d 597
E.D. Wis.2019Background
- Plaintiff purchased Orijen Original and Orijen Senior dog food (Nov 2016–Mar 2018) and alleges marketing implied premium, human‑grade, regionally sourced ingredients but products contained lead, arsenic, cadmium, and mercury.
- Packaging made quality assertions (e.g., "fit for human consumption", "fresh regional ingredients", "Made in our USA Kentucky kitchens"). Packaging did not expressly promise absence of heavy metals.
- Defendants concede heavy metals are present but say they are naturally occurring and at levels well below established maximum tolerable levels (MTLs) per the National Research Council’s Mineral Tolerance of Animals; they submitted expert toxicology evidence (Poppenga) and third‑party lab testing.
- Plaintiff submitted non‑toxicology evidence: FDA Total Diet Study (TDS) comparisons, a marketing expert opining packaging conveys human‑grade quality, and assorted quality complaints (foreign sourcing, contaminants), but no expert showing metal levels are excessive or dangerous.
- Procedural posture: three claims were dismissed earlier; two claims remained—(1) Wisconsin Deceptive Trade Practices Act (WDTPA) §100.18 and (2) unjust enrichment. Defendants moved for summary judgment; the court granted it and dismissed the action with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Orijen’s packaging was "untrue, deceptive or misleading" under the WDTPA because heavy metals rendered the product low quality | Packaging implied premium, human‑grade product; presence of heavy metals made those representations false and induced purchase | Heavy metal levels are well below MTLs and not harmful; no evidence showing concentrations are excessive or dangerous | Judgment for defendants: plaintiff failed to present expert proof that levels are excessive/dangerous; WDTPA claim dismissed |
| Whether plaintiff established causation/pecuniary loss under WDTPA | She paid premium based on packaging and would not have bought but for misleading claims | No evidence that representations were false or that metals made product unsafe; plaintiff relied on defendants’ own data but offered no rebutting toxicology | Held for defendants—without proof of misleadingness tied to dangerous levels, no triable issue |
| Whether unjust enrichment claim was cognizable when purchases were through retailers | Plaintiff claims defendants were enriched by her purchases at premium prices | Defendants argue benefit flowed through third‑party retailers; Wisconsin law requires benefit conferred directly to defendant | Held for defendants—claim fails because plaintiff purchased from retailers (no direct conferral) and fails on inequity element tied to WDTPA failure |
| Whether plaintiff could change theory at summary judgment to general quality defects (contaminants, sourcing) not pleaded | Plaintiff relies on other quality allegations submitted in response to summary judgment | Defendants point out complaint alleged specifically excessive/dangerous heavy metals; cannot pivot theories at summary judgment without amending complaint | Held for defendants—court limited to pleaded claim; plaintiff may not reframe theory at summary judgment; such new theories were not considered |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (establishes standard for genuine dispute of material fact at summary judgment)
- Boss v. Castro, 816 F.3d 910 (Seventh Circuit summary judgment standards)
- Bridge v. New Holland Logansport, Inc., 815 F.3d 356 (Seventh Circuit—construe facts and inferences for nonmovant)
- Berry v. Chicago Transit Auth., 618 F.3d 688 (leave credibility determinations to factfinder)
- Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162 (issues of witness inconsistency and credibility)
- Novell v. Migliaccio, 309 Wis.2d 132, 749 N.W.2d 544 (WDTPA purpose and elements)
- Sands v. Menard, 379 Wis.2d 1, 904 N.W.2d 789 (elements of unjust enrichment under Wisconsin law)