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Update for April 5, 2008: Both the Appellant's Brief and Appellant's Reply Brief have been filed in the Washington State Court of Appeals, Division II, Case Number 37153-7-II. This completes the requirements for filing briefs. The next step is typically the case goes before the Court Commissioner for a decision. If any of the parties disagree with the Commissioner's decision, it then goes before a panel of judges for reconsideration.
In a separate matter, also before the Court of Appeals, case number 37376-9-II, I've filed a Motion to Modify the Commissioner's ruling, which allows for the destruction of evidence discussed in the March 16 update below. Menu Foods filed a response, and my Reply has been filed and served on the parties. This completes the filing requirements for a motion to modify a Commissioner's ruling, and the matter is now ready to go before the judges panel for consideration. The next step in the event of an unfavorable ruling would be to take the matter before the Washington State Supreme Court. It is my view the issues involved are of such grave public concern, there is no doubt I will take that next step if it becomes necessary. What the issue basically consists of is there are provisions in court rules, which under certain conditions may limit the scope of discovery when a party can show an unreasonable burden in producing evidence. "Discovery", for those not familiar with the term, is the civil equivalent of a search warrant. The tactic Menu Foods is attempting in this case is by engineering a burden through the willful destruction and mishandling of evidence, it can now argue the mess it made created a loophole in the rules where it is justified in destroying the evidence because it would be too costly to clean up the mess it made. If Menu Foods' unscrupulous tactic is successful, it would potentially create precedent which would allow defendants in product liability actions, and any related criminal investigations, to destroy the most incriminating evidence simply by sorting it into an unorganized pile slated for destruction. Update for March 16, 2008: I've added a new page covering Menu Foods' program to destroy a huge body of critical evidence, and my efforts to obtain some part of that before it is gone. If nothing else, view the photos and documents and ask yourself if you would buy anything intended to be food from a company that maintains its facilities in such a slovenly condition. Update for February 16, 2008: It has been a busy several months in the legal battle with Menu Foods. While the class actions snooze along, things have been hot and heavy in little Port Townsend, WA. The resources Menu Foods is dedicating to this chump change individual action is nothing short of amazing. At present, Menu Foods has 2 Seattle attorneys assigned to the case, and a partner from the firm's Washington DC office. At mid October 2007, the case looked to be on a fast track to be the first pet food suit against Menu Foods to go to trial. From that point, things changed in a rather remarkable fashion. With Menu Foods and Kroger in default, the judge granted them a one week continuance to answer the amended complaint. The judge assigned to the case then went missing for a month and a half. Instead of answering the complaint, Menu Foods and Kroger filed fresh Rule 12 motions, which the plain language of the rules appears to prohibit. When the assigned judge became available on December 21, 2007, the rulings were in favor of Menu Foods and Kroger accross the board. My notice of appeal was filed on December 24, 2007. In the mean time, in the class action pending in Federal District Court in New Jersey, clandestine meetings had been underway for several months. The purpose of those meetings was to cut a deal on the destruction of a huge body of returned pet food evidence. As it turns out, in the months after the March 2007 recall, Menu Foods had been aggressively organizing returned pet food into two categories. 1. The evidence it wanted plaintiffs to have. and, 2. The evidence it does not want plaintiffs to have. In one of those "night before Christmas" type deals, which only seem to slip through when the vast majority of those involved in a case are on vacation, decking the halls with boughs of holly, a truly amazing "unopposed" motion was signed into effect. The short version of the story is that some 15 million cans and pouches of the best unrecalled pet food evidence against Menu Foods was slated for wholesale destruction, with no part of that body of evidence to be preserved for future testing needs. The order was signed into effect on December 18, 2007, a week before Christmas. The motion was granted, at least in part, on Menu Foods statements made to the court that there were no parties with any interest or need to keep some part of that evidence intact. The first I learned of this was in an email from Menu Foods' attorney, on January 14, 2008, asking if I had any objection to the plan. What was described struck me as ludicrous. I wrote back to the effect I thought better arrangements should be made, with some suggestions. We discussed the matter in more detail by phone on the 16th. The call ended with my insistence that I needed to at least review what took place in Federal District Court in order to come up to speed on the issues, and Menu Foods threatening legal action against me if I didn't cave in and enter a stipulation of no objection by the end of the day. After taking some time to review the relevant documents filed in Federal Court, I wrote back to say the retention plan for recalled product and gluten was probably within reason, but that some feasible compromise should be worked out to preserve some part of the remaining body of evidence. Menu Foods did not respond. On January 22, 2008, I mailed an objection to be filed in Federal District Court, which was received by Menu Foods' attorney the following day. Menu Foods filed the threatened legal action in state court two days later, which it subsequently withdrew upon notice from the state appellate court that review of the previously filed appeal had been accepted. On February 6, 2008, Menu Foods filed an emergency motion in the state Court of Appeals seeking permission to bring its previously filed motion in state Superior Court back into play. In its emergency motion, no word was mentioned that the objection filed in Federal District Court was pending further litigation. My response was received by the appellate court on the 8th, but the order to approve the motion was granted on the 7th. I filed a response to Menu Foods' reply in Federal court. On February 13, 2008, the Federal District Court refused to recognize my standing to raise an objection it that case. On February 15, 2008, the Superior Court ruled the Federal District Court order should be considered binding, in spite of the fact the cases are so completely different the Federal District Court refused to consider third party standing or right of intervention. Update for December 2, 2007: Federal District Court Judge, Benjamin Settle, was appointed to the bench for life by Republican President, George Bush, in November 2006, after being approved for the position by a Democrat controlled Congress. Judge Settle refused jurisdiction in Earl v. FDA and ordered the case dismissed. No due process. No redress of grievance. No justice. The Mandamus Act reads as follows: The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. Our $2 billion a year, tax payer funded FDA has for the better part of a year refused to investigate toxins, other than melamine, known to have been found in pet food. The FDA brought in 10 attorneys, at tax payer expense, in its effort to avoid the minimal investigation sought in Earl v. FDA. Altogether, this cost me less than $500. I'm on the record and I made my point. One person at a time it's possible to make a difference. Unfortunately, because there was ONLY one person this time, I can absolutely guarantee you that there will be a next time. What if, instead of one complaint filed, there had been a thousand? Or ten thousand? Or a hundred thousand? Somewhere between 1 and 100,000 it should be possible to find justice. Update for November 14, 2007: This is the document the below reply is to. Update for November 10, 2007: In documents filed in Federal District Court, the FDA claims it has no duty to protect the public from poisoned pet food, or to conduct any kind of investigation whatsoever. A bit like a fire department that doesn't respond to reports of fire, yes? Read it and weap. Update for October 23, 2007: Text of amended complain in Earl v. Menu Foods in MS Word format. Update for September 27, 2007: In response to recent efforts to get the FDA to the bargaining table to discuss the possibility of negotiating a settlement on the mandamus action, counsel for the FDA sent the following letter, which is Exhibit A in the motion for summary judgment filed today. We can play it easy, or we can play it hard. It's all the same to me. Update for August 8, 2007, 2007: Text of Petition for Writ of Mandamus filed against the FDA today, in an effort to force the FDA to properly investigate findings by independent labs of toxins other than melamine in pet food, and also to prevent the FDA's program to systematically destroy critical pet food evidence. The case number is: C07 5413 BHS Washington Western District Court Tacoma Divisional Office 3100 United States Courthouse 1717 Pacific Avenue Tacoma, WA 98402-3234 253-882-3800 Those interested in following the case may wish to sign up for Pacer, the official electronic system for all Federal Court cases at: PACER There is an eight cent per page charge to view documents online and an account has to be set up to use the service. For those who use less than $10 worth of the service over the course of a year, there is no charge. In the PACER system, the case number is: 3:07-cv-05413-BHS NOTE: The above is completely separate from the action for damages in state court below. Text of lawsuit filed against Menu Foods and Kroger, on July 13, 2007, in MS Word format. After uploading the above file on July 13, 2007, it crossed my mind some explanation for the reasoning behind my going this route is appropriate. There are some good class action attorneys working on the pet food case. While I chose not to go that route, it may never the less be the only practical route for many of those affected by the recall to take. In any case, my thoughts on the subject may be found here. DISCLAIMER: The author is not an attorney, and nothing in this section is intended to be, nor should it be construed to be legal advice. If you require legal advice, you should consult an attorney. The Animal Legal Defense Fund and The Animal Legal and Historical Web Center have a great deal of information available on animal statutes and related case law. State laws may vary a great deal from state to state, but over all there tends to be a general similarity. While it is beyond the scope of this project to research statutes for every state, some items found in the Revised Code of Washington raise interesting talking points in relation to the pet food recall. Under product liability actions:(1) RCW 7.72.010(1) "Product seller. "Product seller" means any person or entity that is engaged in the business of selling products, whether the sale is for resale, or for use or consumption. The term includes a manufacturer, wholesaler, distributor, or retailer of the relevant product. The term also includes a party who is in the business of leasing or bailing such products." RCW 9.08.070(1)(c): "(1) Any person who, with intent to deprive or defraud the owner thereof, does any of the following shall be guilty of a gross misdemeanor punishable according to chapter 9A.20 RCW and by a mandatory fine of not less than five hundred dollars per pet animal, except as provided by subsection (2) of this section:...(c) Willfully or recklessly kills or injures any pet animal, unless excused by law."(4) If the assumption is Menu Foods was spiking their product with cyanuric acid contaminated with acetamionphen, that strikes me as being at the very least "reckless", potentially subjecting Menu Foods to criminal charges as well as civil. Of special interest is the definition of "food" specifically includes food for animals. RCW 69.04.008: "The term "food" means (1) articles used for food or drink for people or other animals, (2) bottled water, (3) chewing gum, and (4) articles used for components of any such article."(5) Under RCW 69.04.040 Prohibited acts:(6)"The following acts and the causing thereof are hereby prohibited: (1) The sale in intrastate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded. (2) The adulteration or misbranding of any food, drug, device, or cosmetic in intrastate commerce. (3) The receipt in intrastate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded, and the sale thereof in such commerce for pay or otherwise." There doesn’t seem to be anything there that would be subject to misinterpretation, and again it is a criminal offense. Under RCW 69.04.060(7) "Criminal penalty for violations. Any person who violates any provision of RCW 69.04.040 is guilty of a misdemeanor and shall on conviction thereof be subject to the following penalties: (1) A fine of not more than two hundred dollars; or (2) If the violation is committed after a conviction of such person under this section has become final, imprisonment for not more than thirty days, or a fine of not more than five hundred dollars, or both such imprisonment and fine." That doesn’t sound like much of a deterrent. Would a thousand such transactions count as a thousand violations? One thousand months in jail comes to a bit over 83 years. Recent Case Law in Washington State is also of interest: (8) "24 For the first time in Washington, we hold malicious injury to a pet can support a claim for, and be considered a factor in measuring a person's emotional distress damages....The trial court's award for emotional distress damages is akin to a general award for pain and suffering." Product liability defined: RCW 48.92.020(9)(9) ""Product liability" means liability for damages because of any personal injury, death, emotional harm, consequential economic damage, or property damage including damages resulting from the loss of use of property arising out of the manufacture, design, importation, distribution, packaging, labeling, lease, or sale of a product, but does not include the liability of any person for those damages if the product involved was in the possession of such a person when the incident giving rise to the claim occurred." After reading numerous articles on the theory of pets being property, the property theory that keeps coming to mind is "loss of use". Obviously pet owners receive some benefit from owning pets, which benefit would be the pet’s "use". It is difficult to comprehend the assumption that causing the pet's death does not deprive the owner of the "use" of the pet. Recent cases in Washington State and California,(10) have established a special value of $30,000 for companion animals. It's also worth noting that as product liability is involved, it appears to define a wider basis for a cause of action beyond simple damages for the loss of property.
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