Couple sues dog food manufacturer after pet death

by Erica Shaffer
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Evanger's brand pet foods
Laboratory tests revealed the presence of pentobarbital, a barbiturate used for euthanasia.
SEATTLE – A couple in Washington State recently filed a lawsuit against Wheeling, Illinois-based Evanger’s Dog & Cat Food Company Inc., owned by Holly and Joel Sher, after one of their dogs was poisoned by pet food tainted with pentobarbital, a euthanasia drug.

Nicole and Guy Mael of Washougal, Washington, filed the lawsuit against Evanger’s and Nutripack LLC, a pet food company owned by members of the same family, in US District Court for the Western District of Washington. The couple is seeking a jury trial and class-action status for their complaint. They also are seeking compensation for veterinary costs and costs for pet care; costs associated with the death of their dog; treble and punitive damages; attorneys’ fees and costs.

On Dec. 31, 2016, the Maels purchased Evanger’s brand Hunk of Beef Au Jus and Against the Grain’s Grain Free Pulled Beef with Gravy canned dog food for their five pugs, according to court documents. All the Mael’s dogs immediately became ill after consuming the Hunk of Beef pet food.

“Plaintiffs rushed them to an emergency veterinarian,” court documents state. “The next day, one of Plaintiffs’ dogs, Talula, died after being poisoned by the Hunk of Beef. As a result of consuming the Pet Foods, Plaintiffs’ four other dogs have had to undergo ongoing veterinarian treatments and monitoring, including Tito, who is now being treated for seizures.” The dog that ate the least amount of food recovered with time.

The US Food and Drug Administration (FDA) launched an investigation into Evanger’s following the incident. An FDA Veterinary Laboratory Investigation and Response Network lab tested the stomach contents of the deceased dog and an open can of the pet food, while the FDA tested unopened cans (from the same lot) of the product from the Maels and the retailer that sold the products. All of the samples tested positive for pentobarbital, a barbiturate. According to the FDA, oral exposure to pentobarbital can cause drowsiness, dizziness, excitement, loss of balance, nausea, nystagmus (eyes moving back and forth in a jerky manner) inability to stand, coma and death.

Evanger’s voluntarily launched a limited recall, but the FDA noted that the company, in a press release, said the beef for its Hunk of Beef pet food came from a “USDA approved” supplier. But FDA found that none of Evanger’s beef suppliers are inspected by the US Dept. of Agriculture’s Food Safety and Inspection Service, and none of its meat was human grade.

“...the FDA reviewed a bill of lading from Evanger’s supplier of “Inedible Hand Deboned Beef – For Pet Food Use Only. Not Fit For Human Consumption” and determined that the supplier’s facility does not have a grant of inspection from the United States Department of Agriculture’s Food Safety and Inspection Service,” the agency said in a news release. “The meat products from this supplier do not bear the USDA inspection mark and would not be considered human grade. USDA-FSIS regulates slaughter of animals for human consumption only. Testing by USDA-FSIS of Evanger’s Hunk of Beef confirmed that the meat used in the product was bovine (beef). Trace amounts of pork and equine were also found, but both were less than 2 percent and therefore considered by FSIS as ‘not reportable.’”

Court documents state that the FDA also noted unsanitary conditions at Evanger’s manufacturing facilities at both its Wheeling, Illinois, and Markham, Illinois, locations, that further contaminated its pet foods.

The story took another turn when Evanger’s sued its long-time beef supplier, Bailey Farms LLC, of Marshal, Wisconsin, in the Circuit Court of Cook County, Illinois.

The Evanger’s complaint states that Joel Sher placed a verbal order for beef with Greg Sheil of Bailey Farms. On June 2, 42,340 lbs. of “Inedible Hand Deboned Beef” arrived at Evanger’s, who paid $15,789.30 for the meat.

In court documents, Evanger’s said “… “Inedible” indicates only that the beef was not for human consumption; meat for human consumption must be processed in a facility that is certified and inspected for human food by the United States Department of Agriculture. The designation does not preclude other uses, such as pet foods, or otherwise connote the beef is not wholesome and nutritious for dogs and cats. If it were not wholesome and nutritious, federal and state law and regulations would prohibit sale for use in pet foods.”

The company made 50,000 cans of Hunk of Beef dog food. But in January 2017, Evanger’s learned of “… a family in Washington State whose four pug dogs became ill after being fed the dog food.”

The lawsuit against Bailey Farms claims breach of contract, breach of implied warranties, fraud for shipping horsemeat, consumer fraud; and representing the facility was APHIS-certified when it wasn’t.

“Evanger’s has suffered damage from Bailey’s breach. Because Bailey shipped horsemeat that was contaminated with pentobarbital, Evanger’s has been required to recall products it made with any meat Bailey provided,” according to court documents. “In addition to the loss relating to the unsalable product and the cost of recall, Evanger’s has suffered extensive damage to its commercial reputation because its product contained horse meat instead of beef and that horsemeat was contaminated with pentobarbital. This damage has led to significant loss of retail stores that will sell any of Evanger’s products.”

Evanger’s is seeking $20 million in punitive damages, compensatory damages and attorneys’ fees.

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By GG 6/29/2017 8:24:38 PM
Why are they suing for veterinary costs as Evanger's paid for all of them once they were aware of what happened? Why hasn't the cause of death been corroborated by the treating veterinarians?

By Pamela 6/26/2017 1:48:37 PM
This isn't the first time Evangers has been in trouble. They've stolen electricity from neighboring business (convicted), etc. And if they didn't actually inspect the physical plants and documentation of their suppliers, they're complicit. The FDA once found 'beef parts' in a can labeled 'lamb' and fined them for that. Not a good operation since the Evanger daughter married Mr Scher.

By Jennifer 6/23/2017 9:57:56 AM
Why isn't anyone investigating why there was evidence of horse meat in the product, not just the pentobarbital. The percentage found shouldn't matter, the mere fact it was present is troubling.

By Mark G Willed 6/23/2017 9:57:23 AM
Peter: Thought you would fine this interesting. Please share with your dad. How is the Pet Treat Plant coming along? Best, Mark