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From Products Liability Law Daily, March 24, 2017

Fish farm sues Purina after allegedly reformulated food destroys thousands of largemouth bass

By Georgia D. Koutouzos, J.D.

A commercial fish farm is suing the manufacturer and distributor of fish feed products, asserting that two particular types of feed marketed as being nutritionally superior for feeding largemouth bass actually became inherently dangerous when fed to that species after a reformulation, causing large-scale fish deaths. Among the causes of action in the fish farm’s complaint are claims of negligence, state-law consumer fraud violations, and breach of various warranties (Veath Fish Farm, LLC v. Purina Animal Nutrition, LLC, March 22, 2017).

Veath Fish Farm, LLC, a company that raises largemouth bass by feed-training them in production ponds for later sale, had been purchasing AquaMax 500 and AquaMax 600 brand fish feed from Purina Animal Nutrition since 2008 and feeding it to the approximately 360,000 largemouth bass of varying ages and sizes in the farm’s production ponds. According to Veath, it had never experienced any significant problems with those two products before 2015, the point at which Purina apparently replaced the previous manufacturers of those two brands and allegedly reformulated the contents of those two products without notifying its customers of any changes.

The bags in which both AquaMax 500 and AquaMax 600 were sold included various statements, representations, guarantees, warranties, and/or promises that the products were "100% nutritionally complete diets developed by professional nutritionists and fish experts" to "maximize growth" and "stimulate aggressive feeding behavior." Purina’s Internet websites advertising those products also contained similar statements as to the products’ effectiveness, as did the website of the new company that manufactured those two feed products for Purina, Texas Farm Products Co. (TFPC).

In reliance on those statements and guarantees, the fish farm continued feeding its largemouth bass the allegedly reformulated products but, after 2015, began to experience decreased growth and significantly increased deaths of its largemouth bass population. By April 2016, as a direct and proximate result of feeding its stock the reformulated, altered, or changed AquaMax 500 and AquaMax 600 fish food manufactured by TFPC, the farm experienced substantial loss of its fish population from disease and death.

Contrary to the representations made by Purina and TFPC, the two products were not fit for largemouth bass in that, among other things, the products contained digestible carbohydrate percentages that were higher than what largemouth bass can physically use which, in turn, causes damage to their livers, the fish farm contends.

Negligence. The fish farm’s complaint alleges that, as makers and sellers of fish food, Purina and TFPC owed a duty to exercise ordinary care in the design, formulation, manufacture, production, marketing, distribution and/or sale of fish food products. The two companies were negligent in that they failed to exercise ordinary care in the design, formulation, manufacture, production, marketing, distribution and/or sale of the two products inasmuch as those products were not nutritionally safe for largemouth bass.

As such, Purina and TFPA breached their duty to exercise ordinary care in the design, formulation, manufacture, production, marketing, distribution and/or sale of the AquaMax 500 and AquaMax 600 because those products were not nutritionally safe for largemouth bass. Further, as a direct and proximate result of the companies’ negligence and breach of their duty to exercise ordinary care, the fish farm sustained a significant loss of its largemouth bass population as well as additional damages in the form of lost profits, expenses incurred attempting to save the dying fish, expenses incurred for the purchase of replacement fish food, loss of future earnings, damage to reputation, loss of business expectancy and other damages including, but not limited to, all losses resulting in the ordinary course of events from the companies’ breach.

Both companies’ actions were willful and wanton, outrageous, and/or grossly negligent, the fish farm alleged, seeking compensatory damages, punitive damages, costs, and such further and additional relief as deemed just and proper.

Other claims. In addition to negligence, the fish farm’s nine-count complaint against Purina and TFPC alleges that the two companies’ actions violated the Illinois Consumer Fraud Act in that they falsely advertised AquaMax 500 and AquaMax 600 as being nutritionally optimal and safe for largemouth bass consumption, that the farm would not have purchased those products had it known that the advertisements were false, and that as a direct result of the false statements, the farm experienced substantial loss of its fish population. The complaint also alleged that Purina breached an express warranty and that both Purina and TFPC breached implied warranties of merchantability and fitness for a particular purpose.

The case is No. 17-cv-303.

Attorneys: Mark S. Schuver (Mathis, Marifian & Richter, Ltd.) for Veath Fish Farm, LLC.

Companies: Veath Fish Farm, LLC; Purina Animal Nutrition, LLC; Texas Farm Products Co. a/k/a TFP Nutrition

MainStory: TopStory ComplaintNewsStory DesignManufacturingNews WarningsNews DamagesNews FoodBeveragesNews IllinoisNews

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