Today’s case, Hartney v. Zoetis, Inc., 2025 WL 2924661 (D.N.J. Oct. 15, 2025), is about a canine medicine allegedly gone wrong. But lest you think the DDL blog has gone to the dogs, this case addresses issues such as preemption and learned intermediary that are key in cases with thumbed, supposedly sapient, biped plaintiffs.
Mind you, we’re not among those who pronounce dogs to be superior to humans, though there have been times when the issue has at least seemed to be a jump ball. We haven’t yet met a dog who twisted our words or made up fake precedents. Now, you might point out that nor have we met a person who piddled on our floor. Well … are you sure about that? For a funny, touching nuanced take on our relationship with the faithful, adorable, filthy, best possible pets (sorry, cat people – your felines barely tolerate you), see The Oatmeal comic masterpiece, “My Dog: The Paradox.”
As we write this, the Drug and Device Law Portuguese Waterdogs — Maks and Bailey — are taking their tenth nap of the day. They will contribute no learning, no analysis, not even cite-checking to this blogpost. But their snores and groans (probably dreaming of chasing infernal squirrels) ensure that we will be more sympathetic to the plaintiffs than is normally the case.
Hartley is styled as a consumer fraud nationwide class action invoking the laws of multiple states and targeting an FDA-approved veterinary drug. Early on, the court tells us that there are eight named plaintiffs and, for a moment, we thought those named plaintiffs would be dogs. But, no, the named plaintiffs are people. Still, we do learn that the allegedly injured dogs included Jake, Blue, Dixie, Jack, and Maisley, among others. Those are good dog names. We can almost picture those pups, and we grieve over the injuries they allegedly suffered after being administered a medicine intended to treat osteoarthritis. At least one dog (Jake) had to be euthanized. If you’ve ever taken a pooch for that one-way ride, you know how dreadful that is.
The plaintiffs’ complaint alleged that the drug was defectively designed, that the manufacturer should have warned of the serious potential side effects, and that the manufacturer underreported adverse events. By the time we get to the Third Amended Complaint, the causes of action in play were consumer fraud (under the laws of New Jersey, California, Illinois, Missouri, Texas, and Virginia), product liability under the New Jersey Products Liability Act, express warranty, implied warranty, negligence, and unjust enrichment. The defendant filed a motion to dismiss and a motion to strike the class allegations.
The court dismissed the Third Amended Complaint, but not with prejudice. As is usual with class actions, the complaint sought to obscure individualized reliance/loss causation issues. Whichever state consumer fraud statute applied, the problem with the Third Amended Complaint was that it failed to identify any affirmative misrepresentations, describe what was purportedly false, or how the would-be class representatives relied on any falsehoods. Moreover, in New Jersey, product-related warning claims must be pursued as product liability, not consumer protection, claims. Here is where we get to application of the learned intermediary doctrine. Yes, it applies to veterinarians. The problem is that the complaint is devoid of warning causation allegations as to the plaintiffs’ veterinarians. The plaintiffs invoked the New Jersey Perez case exception to the learned intermediary doctrine when there was direct to consumer advertising, “but they do not plead reliance on any identified advertisement, so the exception does not apply.”
Further, New Jersey has a rebuttable presumption of adequacy in FDA-approved warnings and the plaintiffs did not plead anything to avoid the presumption.
The design defect claim was preempted because the plaintiffs were attacking the FDA-approved design. The plaintiffs offered no FDA-approved alternative design.
The express warranty claim, as usual, failed to plead any warranty language. The plaintiffs generally alleged that the manufacturer warranted the drug to be “safe and effective,” but they identified no advertisement or promotional statement containing such a representation. Most courts require that an express warranty be part of formation of the bargain, and that was absent here. Also absent were presuit notice to the defendant (required in many jurisdictions) or privity (required in even more jurisdictions).
The Third Amended Complaint listed claims for implied warranties of merchantability and fitness for a particular purpose. To state such claims, the plaintiffs must allege that the drug was unfit for its ordinary use or for a particular purpose that was actually communicated. They did not do that. That dog won’t hunt.
The negligence claims alleged that the defendant “failed to exercise reasonable care in testing, marketing, and selling” the medicine, “including by adequately testing the drug and withholding results.” To the extent the claim was based on a failure to report information to the FDA, it was preempted by Buckman. The other negligence theories were subsumed by statute if brought under New Jersey law, and, again, failed to plead learned intermediary causation.
The unjust enrichment claim (almost always makeweight) failed because the plaintiffs “plead no facts beyond those underlying their statutory and product liability theories, and they do not allege why legal remedies would be inadequate.”
With all these pleading defects, the plaintiffs would be afforded the opportunity to try again. Perhaps they will learn some new tricks and produce a Fourth Amended Complaint. So maybe now we’re just at a paws, er, pause, in the proceedings.
Meanwhile, the court held that it was premature to strike the class action allegations on the pleadings. The plaintiffs were entitled to undertake some discovery to support class certification. That is a pity. It means that a weak case will continue to visit expense and inconvenience on a defendant that should probably be unleashed from this litigation.