Families, companies prepare for lawsuit over poisoned dog food

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Families, companies prepare for lawsuit over poisoned dog food
By Jim DuPlessis · The (Columbia) State - Updated 01/21/07 - 12:54 AM


When lizards emerge on a warm day, 5-year-old Mary Scott Brown counts them. When dogs pass on the street, she runs to greet them.


When visitors arrive at her door, the animal lover introduces them to "Ginger Brown," the Camden family's 11-year-old Jack Russell terrier.

Soon, Mary Scott and her 7-year-old brother, Blake, will be introducing visitors to a new dog they plan to pick from the litter of a breeder's Labrador retriever.

Thirteen months ago, the Browns lost their other dog, yellow Lab Lacy, to a fungus poison called aflatoxin.

The State reported then how the poison wound up in thousands of bags of Diamond Pet Foods made at the company's Gaston plant, and shipped to stores across the country and abroad. More than 100 dogs died along the East Coast, including at least 35 in South Carolina.

Now, Diamond and two S.C. grain suppliers are facing lawsuits from pet owners seeking class-action status in a federal court in Knoxville, Tenn. The pet owners accuse the companies of negligence. With Diamond, the suit also claims breach of warranties and unfair trade practices -- all denied by Diamond.

If a jury decides in the pet owners' favor, it could allow them to collect actual damages, such as the cost of buying a new pet or veterinary bills. A violation of laws against unfair trade practices would allow plaintiffs to triple the actual damages they collect.

The company admits it shipped thousands of bags of dog food in fall 2005 before realizing some contained aflatoxin, which grew in overly moist corn used to make the food.

Mary Scott's father, Scott Brown, bought one of those bags and fed it to their 6-year-old Lab, Lacy, every day for nearly a month before she became ill and died within a few days. Ginger, the Jack Russell, was saved by a sensitive stomach that has required her to eat a prescription dog food.
Lacy was one of the first dogs in South Carolina confirmed to have died from aflatoxin poisoning. A Clemson University lab in Columbia found her food contained 21 times the level of aflatoxin allowed by the U.S. Food and Drug Administration.

Other deaths were reported about the same time, leading the Meta, Mo.-based company to issue a voluntary recall Dec. 20, 2005. An FDA report a month later said the company had failed to test adequately for aflatoxin.

Making their case

Today, Diamond Pet Foods' 65-employee plant in Gaston is still running, and the company is selling its food across the country. The company beefed up its monitoring of incoming corn and began testing outgoing batches.

John T. Lay, a Columbia lawyer representing Diamond, said the company has strived to save dogs since the recall and has bolstered its testing at Gaston and its two other plants.

"Before any bag of pet food leaves any of our three facilities, it now goes through 140 ingredient and 10 final product quality and safety checks," he wrote in an e-mail response to written questions.

"When a shipment of corn arrives, we take 12 individual samples (three times the number suggested by U.S. regulatory agencies) and test for toxins using the most advanced techniques available.

"Prior to bagging and shipping, all finished products are tested again as an additive step, which provides our customers and their pets with an extra layer of protection."

Rebecca Y. Galliher of Gray Court is the plaintiff named in the S.C. suit seeking class-action status. Galliher said she lost five dogs from aflatoxin poisoning in late 2005.

All five died the same day, showing no previous signs of illness. Eight other dogs fell ill, so she took them to a veterinarian, who said they showed signs of aflatoxin poisoning. She spent $1,200 on medicine, and none of the sick dogs died.

The 64-year-old retired teacher said she breeds dogs to help defray the cost of supporting the abandoned dogs she's been taking in for decades. She now has about 70 dogs on her 22-acre Graystone Ranch.

She still feeds her dogs Diamond Pet Foods.

"Diamond could not stand another scandal like that, so they're probably the safest dog food right now. That's how I reasoned it out."

She said she sued to send a message.

"It's not for the money. It's for that to be a lesson for all the other dog food companies," she said. "Some of these animals are like people to some of us."

The law traditionally treats losses of pets as loss of property, confining damages to the economic loss, like the price of a destroyed car or gun, said Columbia lawyer Gene Covington, who is representing Galliher.

"The problem is you can buy the same car, or buy the same gun, but you just can't go out buy the same puppy," Covington said.

"The good thing about law is that it's not inflexible, and it's designed to change."

Luck and loss

Circumstances have varied widely among owners of dogs that ate the tainted food.

Some sued, some settled, some have found new pets and some were lucky.

The Tatum family of Cayce took Lexi, their 2-year-old cocker spaniel, to the vet when she became sick in December 2005. Tests showed she had been eating Diamond Pet Foods with six times the federal limit of aflatoxin.

But Lexi lived. "She's doing great," Joan Tatum said Thursday.

Her yearly physicals include blood tests to check her liver for any damage from the aflatoxin. The last one came back normal, and they expect to do the tests for the next two years.

In Camden, someone in the Brown family occasionally mentions Lacy.

"Every once in a while, one of us will say, 'I miss Lacy,'" Scott Brown said.

"Someone will reply, 'Yeah. She was a good dog.'"

After the Lab's death, the Browns decided not to get another dog for a while.
"We were going to let the right dog find us," Scott Brown said.