(CN) - Del Monte subsidiary Milo's Kitchen cannot dismiss claims that its Chinese chicken jerky treats poisoned and killed dogs, a federal judge ruled.
Lisa Mazur filed
a federal class action against Del Monte and Milo's Kitchen in Pittsburgh in 2012.
She claimed that her healthy 7-year-old dog, Riley Rae, suffered kidney failure and had to be euthanized after eating the Chinese-made treats from time to time for about a month.
Mazur claims that despite a U.S. Food and Drug Administration warning about the treats, the defendants did not recall the dangerous products or put warnings on the packages.
"Defendants intentionally concealed known facts concerning the safety of their dog treats in order to increase or maintain sales," Mazur said in the complaint.
Del Monte is one of a dozen manufacturers in a $24 million settlement
in 2011 for wet pet food contaminated with melamine and cyanuric acid.
The settlement, however, was not the end of Del Monte's legal troubles.
Another dog owner sued
Milo's in June 2012 in Los Angeles, claiming that her dog came "close to death" from kidney failure because of the bad dog biscuits.
Christopher V. Langone filed a similar claim
in San Francisco in September, but voluntarily dismissed his case in February.
U.S. District Judge Jeffrey White agreed
in April to transfer two other Northern California cases to Pittsburgh, where Mazur's is pending.
Mazur seeks punitive damages for the class for common law fraud, unjust enrichment, negligence, product liability, unfair trade, breach of warranty, failure to warn and defective manufacture or design.
Del Monte and Milo's moved to dismiss in September 2012, and U.S. Magistrate Judge Maureen Kelly recommended
that only the unjust enrichment claim be dismissed.
Mazur's claims "appear sufficient to permit the inference that a defect exists in Milo's chicken jerky treats and that the defect is the most likely explanation for the illness suffered by plaintiff's dog by eliminating other reasonable causes," Judge Kelly wrote.
Kelly found the claims under Pennsylvania's Unfair Trade Practices and Consumer Protection Law are "more than sufficient to place defendants on notice of the precise misconduct with which they are charged."
Kelly added that the allegations "more than adequately set forth losses suffered by plaintiff and the putative class members that are distinct from the disappointed expectations evolving solely from the purchase of defendants' products; they clearly articulate property damage in the form of harm to their pets."
But Kelly tossed Mazur's unjust enrichment claim.
"Here, it is apparent from plaintiff's allegations in the complaint that, while she is dissatisfied with the chicken jerky treats, she nevertheless purchased, received and used the product," Kelly wrote. "It therefore cannot be said that the benefit bestowed on defendants in the form of a profit from the sale was 'wrongly secured.'"
U.S. District Judge Cathy Bissoon adopted
Kelly's recommendation on June 25.
Del Monte is one of the nation's largest producers and distributors of pet foods, netting $3.7 billion in fiscal 2012, according to the complaint and the company's website.