IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DENNIS ADKINS, for himself and )

other persons similarly situated, )

)

Plaintiff, )

)

v. )

)

NESTLE PURINA PETCARE COMPANY, )

WAGGIN’ TRAIN LLC, WAL-MART )

STORES INC., and DOES 1-10, )

)

Defendants. )

COMPLAINT – CLASS ACTION

MATTERS RELEVANT TO MULTIPLE CLAIMS

INTRODUCTION

1. This is a class action brought by plaintiff Dennis Adkins, on behalf of all

consumers who purchased certain dog treats manufactured, marketed, distributed or sold by

defendants. The dog treats were unsafe, were defective, were dangerous, were culpably

misrepresented as safe and healthy, and did not conform to applicable implied and express

warranties.

JURISDICTION AND VENUE

2. This Court has jurisdiction, under 28 U.S.C. §1332(d). The amount in

controversy exceeds $5 million, exclusive of interest and costs. Mr. Adkins and at least one

member of the class is of diverse citizenship to the defendants. There are over 100 class

members. 

3. Personal jurisdiction over each defendant is proper because each

defendant

(a) does and has done business in Illinois and within this District, with

the claims asserted herein arising from such business; and

(b) committed the tortious acts which are the subject of the complaint

1

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 1 of 24 PageID #:1
in Illinois, and within this district.

4. Venue in this district is proper for the same reasons.

PARTIES

5. Plaintiff Dennis Adkins is an individual who resides in the Northern

District of Illinois.

6. Defendant Nestle Purina Petcare Company (“Nestle Purina”) is a Missouri

corporation, with its principal place of business at Checkerboard Square, St. Louis, Missouri. It

does business in Illinois. Its registered agent and office is CT Corporation System, 208 South

LaSalle Street, Suite 814, Chicago, Illinois.

7. Nestle Purina is engaged in the business of manufacturing, producing,

marketing, distributing, advertising or selling dog treats.

8. Nestle Purina began selling dog food in 1957. It has spent millions of

dollars in promoting trust and confidence among consumers in its pet food products. It holds

itself out to the public as a manufacturer of safe, nutritious and high-quality pet food.

9. Defendant Waggin’ Train LLC (“Waggin’ Train”) is a limited liability

company chartered under Delaware law, with its principal place of business at 1924 Pearman

Dairy Rd, #A, Anderson, South Carolina. Its registered agent and office is CT Corporation

System, 2 Office Park Court, Columbia, South Carolina.

10. Waggin’ Train manufactured, imported, packaged, advertised and sold the

dog treats at issue.

11. Waggin’ Train has spent millions of dollars in promoting trust and

confidence among consumers in its pet food products. It holds itself out to the public as a

manufacturer of safe, nutritious and high-quality pet food.

12. Since 2010, Waggin’ Train has been owned by, and is in the process of

being integrated into, Nestle Purina.

13. Defendant Wal-Mart Stores Inc. (“Wal-Mart”) is a Delaware corporation,

2

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 2 of 24 PageID #:2
with its principal place of business at 702 S.W. 8th Street, Bentonville, Arkansas. It does

business in Illinois. Its registered agent and office is CT Corporation System, 208 South LaSalle

Street, Suite 814, Chicago, Illinois.

14. Wal-Mart distributes and sells dog treats manufactured by Waggin’ Train,

LLC and Nestle Purina Petcare Company.

15. Does 1-10 are other entities involved in the manufacture, sale, distribution

and marketing of the dog treats.

FACTS

16. On or about March 11, 2012, Dennis Adkins purchased from a Wal-Mart a

package of Waggin’ Train “Yam Good” dog treats, consisting of “chicken wrapped yams.”

17. The product was manufactured by Waggin’ Train, under the control

and direction of Nestle Purina.

18. The packaging of the product Mr. Adkins purchased is represented by

Exhibit A. This packaging stated, among other things,

(a) that the chicken wrapped yams contained in the package were 

“wholesome,” 

(b) that the chicken wrapped yams contained in the package were 

“nutritious & great tasting,”

(c) that “it’s what nature intended,” 

(d) that “we looked everywhere to find a treat that was better for our 

dogs,”

(e) that the treats were “just wholesome goodness,” 

(f) that the purchaser should “feel confident that you are giving your 

dog a wholesome treat that is both healthy and delicious,” and

(g) that “it means a lot to us to help you treat your dog right.”

19. All of these representations, found on the packaging represented by

3

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 3 of 24 PageID #:3
Exhibit A, were false.

20. The product was not wholesome, was not nutritious, and was unhealthy.

21. In fact, the FDA had issued warnings, as recently as November 18, 2011,

about dog illnesses after consuming chicken jerky dog treats which were made in China. Such

warnings are contained within Exhibit B. 

22. The packaging did not warn of any danger from feeding its contents to

dogs.

23. Waggin’ Train and Nestle Purina market their products without first

determining that the products are safe, and will not have a deleterious effect on dogs.

24. Waggin’ Train and Nestle Purina marketed the “Yam Good” dog treats 

without first determining that the products was safe, and that the dog treats would not have a

deleterious effect on dogs.

25. Mr. Adkins owned a small Pomeranian, between 11 and 25 pounds, named

Cleopatra (also known as Cleo). On March 13, 2012, she was nine years old, and in good health.

26. Between March 13, 2012 and March 15, 2012, Mr. Adkins gave one of the

treats to Cleopatra daily, which he chopped into two to three pieces. Mr. Adkins made no other

changes in her diet.

27. Immediately thereafter, Cleopatra became sick and, on March 26, 2012,

died of kidney failure.

28. Mr. Adkins owns another nine year old Pomeranian, named Pharaoh. Mr.

Adkins did not feed any of the “Yam Good” treats to him. Pharaoh did not become ill.

29. Nestle Purina’s Waggin’ Train brand of chicken jerky products, per the

label found on Exhibit A, “Made In China.” On information and belief, the products are made in

the People’s Republic of China.

30. Prior to Mr. Adkins’s purchase, Nestle Purina and Waggin’ Train, LLC

had received complaints of more than 500 incidents in which dog treats containing chicken jerky

4

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 4 of 24 PageID #:4
imported from China caused dogs to become sick or die.

31. Numerous complaints concerning Waggin’ Train chicken jerky treats

sickening or killing dogs are on the Internet. Examples are attached as Exhibit C.

32. On February 21, 2012, the following article appeared on a blog,

www.PoisonedPets.com:

“Number one selling dog treat in US causing kidney failure, death

February 21st, 2012

Makers of Waggin’ Train dog treats Nestle Purina continue to deny today any

problem with their treats despite hundreds of reports of complaints to the FDA.

They insist that their strict quality control of the chicken jerky manufactured in

China prevents any problems with possible adulteration of their product. Further,

Nestle-Purina states if the FDA can’t find the contaminant then they do not have

to take the product off the market or take any responsibility for the illness and

death of pets associated with their product.

There are two glaring problems with Nestle-Purina’s argument; one, if the FDA

doesn’t know what the contaminant is yet – how does Nestle-Purina know? The

contaminant can only be identified by first determining what the contaminant is

before they can test for it. If the FDA and the University toxicology laboratories

that work with the FDA have been unable to discover what the contaminant is

since the problem was first recognized in 2007, how is Nestle-Purina able to? If

Nestle-Purina knows something the FDA doesn’t know, then it is their duty to

inform the FDA. Nestle-Purina cannot unequivocally assure the product’s safety

until they can first show that the product has tested negative for the (as yet

unknown) contaminant.

Second, based on the first argument it would be prudent for Nestle-Purina to issue

a precautionary recall of their product until such time the contaminant is

discovered. True, Nestle-Purina is not by law required to do so, but as a

manufacturer who is genuinely concerned for the health and safety of the pets

consuming their product, it is their ethical and moral duty to do so. Further, if the

Wal-Mart, the largest retailer on the globe, would take a proactive stance out of

an abundance of caution and remove the product until such time the manufacturer

can prove the product is indeed safe, surely other retailers would follow suit.”

33. Waggin’ Train placed warnings concerning its products on its web site.

34. Notwithstanding these warnings, Waggin’ Train, and Nestle Purina,

continued to market the product as being wholesome. The portion of the Waggin’ Train website

promoting “Yam Good” dog treats (Exhibit D) as of April 16, 2012, still described the “Yam

Good” product as follows:

5

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 5 of 24 PageID #:5
The name says it all! Sure to please even the pickiest of dogs, these wholesome

yams wrapped with chicken are packed with flavor and goodness. Waggin’ Train

Yam Good snacks will satisfy your dog with the natural sweetness of yams.

35. Waggin’ Train and Nestle Purina placed no warnings concerning their

products on their packaging.

36. Waggin’ Train and Nestle Purina knew that there was a substantial risk of

death or harm associated with its dog treats.

37. Neither Mr. Adkins nor any other reasonable person would feed dog

treats to their dogs knowing that there was a substantial risk of death or illness from doing so. 

Mr. Adkins did not learn of the FDA warning or see the warnings on the Waggin Train web site

until after his dog died. 

38. Waggin’ Train and Nestle Purina intentionally concealed known facts

concerning the safety of their dog treats in order to increase or maintain sales.

39. The fact that the dog treats might cause serious illness or death either at

the recommended level, or at some larger level, was a material fact to Mr. Adkins and other dog

owners. Most pet owners would not want to feed their pet such a treat, or have such a treat in a

location where an animal might obtain more than the recommended number of servings.

40. The conduct of Waggin’ Train, LLC and Nestle Purina recklessly or

maliciously disregarded the rights of Mr. Adkins and the class members for motives of pecuniary

gain.

41. Wal-Mart adopts the marketing representations of Waggin’ Train.

42. Mr. Adkins gave notice of his claim to defendants.

43. Mr. Adkins suffered economic damages of more than $2,300 as a result of

defendants’ conduct, including:

(a) the value of his dog,

(b) veterinary expenses incurred in treating the dog and attempting to 

save her life,

6

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 6 of 24 PageID #:6
(c) the cost of disposition of the dog, and

(d) the cost of the defendants’ product.

44. Consumers in Illinois, and across the United States, suffered damages

similar to those suffered by Mr. Adkins, as a result of defendants’ conduct.

COUNT I – BREACH OF IMPLIED WARRANTY;

UNIFORM COMMERCIAL CODE AND MAGNUSON-MOSS ACT

45. Mr. Adkins incorporates paragraphs 1-44. 

46. This claim is against all defendants. 

47. Under the Uniform Commercial Code (“UCC”) – in force throughout the

United States except in Louisiana and Puerto Rico – there is an implied warranty in the sale of

goods by a merchant that the goods shall be merchantable. The Illinois citation is 810 ILCS 5/2-

314.

48. Under UCC §2-314(2), “Goods to be merchantable must be at least such

as.... (c) are fit for the ordinary purposes for which such goods are used; and... (f) conform to the

promises or affirmations of fact made on the container or label if any.”

49. The dog treats sold by defendants were not fit for feeding to dogs, and did

not conform to the promises or affirmations of fact made on the packaging.

CLASS ALLEGATIONS

50. Mr. Adkins brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3),

on behalf of a class and two subclasses.

51. The class consists of all persons in the United States (except Louisiana

and Puerto Rico) who purchased any dog treat product containing chicken jerky manufactured or

sold by Nestle Purina or Waggin’ Train and containing chicken imported from China, on or after

a date four years prior to the filing of this action.

52. The first subclass consists of class members who purchased such products

from Wal-Mart.

53. The second subclass consists of class members whose dogs suffered harm

7

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 7 of 24 PageID #:7
or death due to the consumption of defendants’ products. 

54. The members of the class and subclasses are so numerous that joinder of

all members is impracticable. Thousands of persons purchased the dog treats at issue, and

hundreds of dogs died as a result.

55. There are questions of law and fact common to the members of the

classes, which predominate over any questions that affect only individual class members. The

predominant common questions include:

(a) whether the products sold by defendants were materially defective 

in design and formulation and unfit for consumption by dogs,

(b) whether the products sold by defendants were contaminated,

(c) whether defendants failed to properly test the products prior to 

market entry (or at any other relevant time),

(d) whether defendants failed to warn of the dangers of their products, 

and

(e) whether defendants breached implied warranties.

56. Mr. Adkins’s claim is typical of the claims of the class members. All are

based on the same factual and legal theories.

57. Mr. Adkins will fairly and adequately represent the interests of the class

members. Mr. Adkins has retained counsel experienced in consumer class action litigation.

58. A class action is superior to other alternative methods of adjudicating this

dispute. Individual cases are not economically feasible. 

WHEREFORE, Mr. Adkins requests that the Court enter judgment in favor of 

plaintiff and the class, and against defendants, for:

(a) Compensatory damages; 

(b) Attorney’s fees and litigation expenses (pursuant to 15 U.S.C.

§1610), and costs of suit; and

8

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 8 of 24 PageID #:8
(c) Such other or further relief as the Court deems proper. 

COUNT II – BREACH OF EXPRESS WARRANTY;

UNIFORM COMMERCIAL CODE

59. Mr. Adkins incorporates paragraphs 1-44. 

60. This claim is against all defendants.

61. Under UCC §2-313, in force throughout the United States except

Louisiana and Puerto Rico (the Illinois citation is 810 ILCS 5/2-313), the representations on

defendants’ packaging created an express warranty that the contents shall conform to the

representations. 

62. Defendants’ representations became a part of the basis of the bargain.

63. Defendants breached those representations, as described above.

CLASS ALLEGATIONS

64. Mr. Adkins brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3),

on behalf of a class and two subclasses.

65. The class consists of all persons in the United States (except Louisiana

and Puerto Rico) who purchased any dog treat product containing chicken jerky manufactured or

sold by Nestle Purina or Waggin’ Train and containing chicken imported from China, on or after

a date four years prior to the filing of this action.

66. The first subclass consists of class members who purchased such products

from Wal-Mart.

67. The second subclass consists of class members whose dogs suffered harm

or death due to the consumption of defendants’ products. 

68. The members of the class and subclasses are so numerous that joinder of

all members is impracticable. Thousands of persons purchased the dog treats at issue, and

hundreds of dogs died as a result.

69. There are questions of law and fact common to the members of the

classes, which predominate over any questions that affect only individual class members. The

9

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 9 of 24 PageID #:9
predominant common questions include:

(a) whether the products sold by defendants were materially defective

in design and formulation and unfit for consumption by dogs,

(b) whether the products sold by defendants were contaminated,

(c) whether defendants failed to properly test the products prior to

market entry (or at any other relevant time),

(d) whether defendants failed to warn of the dangers of their products,

and

(e) whether defendants breached express warranties;

70. Mr. Adkins’s claim is typical of the claims of the class members. All are

based on the same factual and legal theories.

71. Mr. Adkins will fairly and adequately represent the interests of the class

members. Mr. Adkins has retained counsel experienced in consumer class action litigation.

72. A class action is superior to other alternative methods of adjudicating this

dispute. Individual cases are not economically feasible. 

WHEREFORE, Mr. Adkins requests that the Court enter judgment in favor of

plaintiff and the class, and against defendants, for:

(a) Compensatory damages; 

(b) Costs of suit; and

(c) Such other or further relief as the Court deems proper. 

COUNT III – CONSUMER FRAUD

73. Mr. Adkins incorporates paragraphs 1-44. 

74. This claim is against all defendants. 

75. Defendants engaged in unfair and deceptive acts and practices, in

violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1

et seq. (“Consumer Fraud Act”). Defendants specifically violated 815 ILCS 505/2 by

10

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 10 of 24 PageID #:10
(a) selling dog treats that were materially defective in design and

formulation or contaminated, and unfit for consumption by dogs;

(b) representing that the treats were healthy and wholesome when they

were not (whether on the packaging (Exhibit A), on the internet

(Exhibit D), or otherwise);

(c) selling dog treats with such representations without properly

testing the products to determine if they conformed to the

representations;

(d) continuing sales of the dog treats after defendants knew or should

have known that the representations being made about them were

false; and

(e) either failing to warn of the dangers of their products, or

concealing such dangers, or both.

76. The acts of defendants were done in the course of trade and commerce.

77. Damages, in the form of the illnesses and deaths suffered by consumers’

pets, and the fact that the product has no value if it is unwholesome and unfit for consumption by

animals, were suffered by Illinois consumers as a result of defendants’ actions.

CLASS ALLEGATIONS

78. Mr. Adkins brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3),

on behalf of a class and two subclasses.

79. The class consists of all persons in Illinois who purchased any dog treat

product containing chicken jerky manufactured or sold by Nestle Purina or Waggin’ Train and

containing chicken imported from China, on or after a date three years prior to the filing of this

action.

80. The first subclass consists of class members who purchased such products

from Wal-Mart.

11

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 11 of 24 PageID #:11
81. The second subclass consists of class members whose dogs suffered harm

or death due to the consumption of defendants’ products. 

82. The members of the class and subclasses are so numerous that joinder of

all members is impracticable. Thousands of persons purchased the dog treats at issue, and

hundreds of dogs died as a result.

83. There are questions of law and fact common to the members of the

classes, which predominate over any questions that affect only individual class members. The

predominant common questions include:

(a) whether the products sold by defendants were materially defective

in design and formulation and unfit for consumption by dogs,

(b) whether the products sold by defendants were contaminated,

(c) whether defendants failed to properly test the products prior to

market entry (or at any other relevant time),

(d) whether defendants misrepresented the qualities and benefits of

their dog treats,

(e) whether defendants failed to warn of the dangers of their products,

and

(f) whether defendants’ culpability is such that they should be

required to pay punitive damages.

84. Mr. Adkins’s claim is typical of the claims of the class members. All are

based on the same factual and legal theories.

85. Mr. Adkins will fairly and adequately represent the interests of the class

members. Mr. Adkins has retained counsel experienced in consumer class action litigation.

86. A class action is superior to other alternative methods of adjudicating this

dispute. Individual cases are not economically feasible. 

 WHEREFORE, Mr. Adkins requests that the Court enter judgment in favor of

12

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 12 of 24 PageID #:12
plaintiff and the class, and against defendants, for:

(a) Compensatory damages equal to the price paid for the dog treats; 

(b) Punitive damages;

(c) Injunctive relief (pursuant to 815 ILCS 505/10a(c)), in the form of

an order enjoining defendants from either 

(1) manufacturing (or causing the manufacture of) products for

sale in Illinois as food for household pets, or 

(2) distributing (or causing the distribution of) products for

sale in Illinois as food for household pets, or 

(3) selling (or causing the sale of) products in Illinois as food

for household pets,

unless the food for household pets being manufactured, distributed 

or sold 

(a) is fit for purpose and is not harmful to the health of

household pets, and

(b) contains no ingredients likely to cause injury or death to

household pets and is otherwise wholesome, and 

(c) is not sold in packaging containing false statements as to

the food’s wholesomeness or nutritiousness, and

(d) otherwise fully complies with the provisions of the Illinois

Consumer Fraud and Deceptive Business Practices Act,

815 ILCS 505/1 et seq.; 

(d) Attorney’s fees, litigation expenses, and costs of suit; and 

(e) Such other or further relief as the Court deems proper. 

COUNT IV – COMMON LAW FRAUD

87. Mr. Adkins incorporates paragraphs 1-44. 

13

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 13 of 24 PageID #:13
88. This claim is against Waggin’ Train and Nestle Purina.

89. Defendants committed fraud by

(a) representing that the treats were healthy and wholesome when they

were not (whether on the packaging (Exhibit A), on the internet

(Exhibit D), or otherwise),

(b) selling dog treats with such representations without properly

testing the products to determine if they conformed to the

representations,

(c) continuing sales of the dog treats after defendants knew that the

representations about them were false, and 

(d) either failing to warn of the dangers of their products, or

concealing such dangers, or both.

90. Any person purchasing defendants’ dog treats relied on such

representations and omissions, as they go to the fitness of the product for its intended use.

91. Damages, in the form of the illnesses and deaths suffered by consumers’

pets, and the fact that the product has no value if it is unwholesome and unfit for consumption by

animals, were suffered by consumers across the United States as a result of defendants’ actions.

CLASS ALLEGATIONS

92. Mr. Adkins brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3),

on behalf of a class and two subclasses. 

93. The class consists of all persons who purchased any dog treat product

containing chicken jerky manufactured or sold by Nestle Purina or Waggin’ Train and

containing chicken imported from China, on or after a date five years prior to the filing of this

action.

94. The first subclass consists of class members who purchased such products

from Wal-Mart.

14

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 14 of 24 PageID #:14
95. The second subclass consists of class members whose dogs suffered harm

or death due to the consumption of defendants’ products. 

96. The members of the class and subclasses are so numerous that joinder of

all members is impracticable. Thousands of persons purchased the dog treats at issue and

hundreds of dogs died as a result.

97. There are questions of law and fact common to the members of the

classes, which predominate over any questions that affect only individual class members. The

predominant common questions include:

(a) whether the products sold by defendants were materially defective

in design and formulation and unfit for consumption by dogs,

(b) whether the products sold by defendants were contaminated,

(c) whether defendants failed to properly test the products prior to

market entry (or at any other relevant time),

(d) whether defendants misrepresented the qualities and benefits of

their dog treats,

(e) whether defendants failed to warn of the dangers of their products,

and

(f) whether defendants’ culpability is such that they should be

required to pay punitive damages.

98. Mr. Adkins’s claim is typical of the claims of the class members. All are

based on the same factual and legal theories.

99. Mr. Adkins will fairly and adequately represent the interests of the class

members. Mr. Adkins has retained counsel experienced in consumer class action litigation.

100. A class action is superior to other alternative methods of adjudicating this

dispute. Individual cases are not economically feasible. 

 WHEREFORE, Mr. Adkins requests that the Court enter judgment in favor

15

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 15 of 24 PageID #:15
plaintiff and the class, and against defendants, for:

(a) Compensatory damages; 

(b) Punitive damages;

(c) Attorney’s fees, litigation expenses, and costs of suit; and

(d) Such other or further relief as the Court deems proper. 

COUNT V – UNJUST ENRICHMENT 

101. Mr. Adkins incorporates paragraphs 1-44. 

102. This claim is against all defendants.

103. Defendants obtained a benefit, to which they were not entitled, through

the sale of substandard dog treats for the purchase price thereof.

104. Defendants had knowledge of the benefit conferred upon them by Mr.

Adkins and others like him. Defendants made a calculated profit from the sales of the dog treats,

while Mr. Adkins and others like him suffered damages as a result of the transactions.

105. Defendants have voluntarily and deliberately accepted and retained those

profits and benefits, without delivering safe and healthy dog treats.

106. Defendants’ retention of the money they obtained (from plaintiff and

others like him) from the sale of defective dog treats constitutes unjust enrichment.

CLASS ALLEGATIONS

107. Mr. Adkins brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3),

on behalf of a class and a subclass.

108. The class consists of all persons who purchased any dog treat product

containing chicken jerky manufactured or sold by Nestle Purina or Waggin’ Train and

containing chicken imported from China, on or after a date five years prior to the filing of this

action.

109. The subclass consists of class members who purchased such products

from Wal-Mart.

16

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 16 of 24 PageID #:16
110. The members of the class and subclass are so numerous that joinder of all

members is impracticable. Thousands of persons purchased the dog treats at issue, and hundreds

of dogs died as a result.

111. There are questions of law and fact common to the members of the

classes, which predominate over any questions that affect only individual class members. The

predominant common questions include:

(a) whether the products sold by defendants were materially defective

in design and formulation and unfit for consumption by dogs;

(b) whether the products sold by defendants were contaminated;

(c) whether defendants failed to properly test the products prior to

market entry (or at any other relevant time);

(d) whether defendants negligently, recklessly or intentionally delayed

initiating recalls of the products;

(e) whether defendants negligently, recklessly or intentionally failed

to warn of the dangers of their products; and

(f) whether defendants were unjustly enriched as a result of their

wrongful conduct.

112. Mr. Adkins’s claim is typical of the claims of the class members. All are

based on the same factual and legal theories.

113. Mr. Adkins will fairly and adequately represent the interests of the class

members. Mr. Adkins has retained counsel experienced in consumer class action litigation.

114. A class action is superior to other alternative methods of adjudicating this

dispute. Individual cases are not economically feasible. 

 WHEREFORE, Mr. Adkins requests that the Court enter judgment in favor of

plaintiff and the class, and against defendants, for:

(a) Compensatory damages,

17

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 17 of 24 PageID #:17
(b) Costs of suit, and

(c) Such other or further relief as the Court deems proper. 

COUNT VI – NEGLIGENCE

115. Mr. Adkins incorporates paragraphs 1-44. 

116. This claim is against Waggin’ Train and Nestle Purina.

117. Defendants owed Mr. Adkins and others like him a duty of care to offer

pet food free from deleterious and harmful effects.

118. Defendants breached that duty of care by selling dog treats that were

harmful and deleterious,

(a) without conducting adequate quality control and testing, 

(b) without using proper manufacturing and production practices,

(c) without adequately investigating reports of pet deaths and illnesses

following consumption of their dog treats,

(d) without placing adequate warnings on the packaging, and 

(e) by otherwise acting in a careless, negligent or reckless manner.

119. Defendants knew or should have known that their dog treats posed an

unacceptable and unreasonable risk of harm to dogs, which would not be recognized by

purchasers of their product, and that the consumption of their products by dogs would result in

foreseeable and reasonably avoidable property damage.

120. Defendants’ conduct was negligent, careless and /or reckless.

121. As a direct and proximate result of defendants’ conduct, Mr. Adkins and

the class members suffered property damage, including sickness and death of dogs.

CLASS ALLEGATIONS

122. Mr. Adkins brings this claim, pursuant to Fed.R.Civ.P. 23(a) and (b)(3),

on behalf of a class of all persons who purchased any dog treat product containing chicken jerky

manufactured or sold by Nestle Purina or Waggin’ Train and containing chicken imported from

18

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 18 of 24 PageID #:18
China, on or after a date five years prior to the filing of this action, whose dogs suffered harm or

death due to the consumption of defendants’ products. 

123. The members of the class are so numerous that joinder of all members is

impracticable. Thousands of persons purchased the dog treats at issue, and hundreds of dogs

died as a result.

124. There are questions of law and fact common to the members of the class,

which predominate over any questions that affect only individual class members. The

predominant common questions include:

(a) whether the products sold by defendants were materially defective

in design and formulation and unfit for consumption by dogs;

(b) whether the products sold by defendants were contaminated;

(c) whether defendants failed to properly test the products prior to

market entry (or at any other relevant time);

(d) whether defendants negligently, recklessly or intentionally delayed

initiating recalls of the products;

(e) whether defendants negligently, recklessly or intentionally failed

to warn of the dangers of their products;

(f) whether defendants breached their duty of care to Mr. Adkins and

the class members; and

(g) whether defendants’ culpability is such that they should be

required to pay punitive damages.

125. Mr. Adkins’s claim is typical of the claims of the class members. All are

based on the same factual and legal theories.

126. Mr. Adkins will fairly and adequately represent the interests of the class

members. Mr. Adkins has retained counsel experienced in consumer class action litigation.

127. A class action is superior to other alternative methods of adjudicating this

19

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 19 of 24 PageID #:19
dispute. Individual cases are not economically feasible. 

 WHEREFORE, Mr. Adkins requests that the Court enter judgment in favor of

plaintiff and the class, and against defendants, for:

(a) Compensatory damages,

(b) Punitive damages,

(c) Costs of suit, and

(d) Such other or further relief as the Court deems proper. 

COUNT VII – STRICT PRODUCTS LIABILITY;

DEFECTIVE DESIGN OR MANUFACTURE

128. Mr. Adkins incorporates paragraphs 1-44. 

129. This claim is against all defendants.

130. Mr. Adkins and the class members purchased dog treats which were

manufactured, distributed or sold by defendants.

131. The dog treats were defective and inherently and unreasonably dangerous

and unsafe for their intended use because they caused injury, illness or death to the dogs of Mr.

Adkins and others like him.

132. The dog treats failed to perform in the manner reasonably to be expected,

in light of their nature and intended function.

133. As a direct and proximate cause of the unreasonably dangerous condition

of the dog treats, Mr. Adkins and others like him suffered property damage and economic loss.

CLASS ALLEGATIONS

134. Mr. Adkins brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3), 

on behalf of a class of all persons who purchased any dog treat product containing chicken jerky

manufactured or sold by Nestle Purina or Waggin’ Train and containing chicken imported from

China, on or after a date two years prior to the filing of this action, whose dogs suffered harm or

death due to the consumption of defendants’ products. 

135. The members of the class are so numerous that joinder of all members is

20

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 20 of 24 PageID #:20
impracticable. Thousands of persons purchased the dog treats at issue, and hundreds of dogs

died as a result.

136. There are questions of law and fact common to the members of the class,

which predominate over any questions that affect only individual class members. The

predominant common questions include:

(a) whether the products sold by defendants were materially defective

in design and formulation and unfit for consumption by dogs;

(b) whether the products sold by defendants were contaminated;

(c) whether defendants failed to properly test the products prior to

market entry (or at any other relevant time); and

(d) whether defendants’ culpability is such that they should be

required to pay punitive damages.

137. Mr. Adkins’s claim is typical of the claims of the class members. All are

based on the same factual and legal theories.

138. Mr. Adkins will fairly and adequately represent the interests of the class

members. Mr. Adkins has retained counsel experienced in consumer class action litigation.

139. A class action is superior to other alternative methods of adjudicating this

dispute. Individual cases are not economically feasible. 

 WHEREFORE, Mr. Adkins requests that the Court enter judgment in favor of

plaintiff and the class, and against defendants, for:

(a) Compensatory damages, 

(b) Punitive damages,

(c) Costs of suit, and

(d) Such other or further relief as the Court deems proper. 

COUNT VIII – STRICT PRODUCTS LIABILITY; FAILURE TO WARN

140. Mr. Adkins incorporates paragraphs 1-44. 

21

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 21 of 24 PageID #:21
141. This claim is against all defendants.

142. Mr. Adkins and others like him purchased dog treats which were

manufactured, distributed or sold by defendants.

143. Defendants’ product was under the exclusive control of defendants, and

was sold without adequate warnings regarding the health risks of the product.

144. Defendants had a duty to warn purchasers of the health risks posed by

their product in an effective manner. Such warnings should have been placed on the packaging

and at the point of sale, or should have otherwise been placed in a way calculated to give

reasonable fair warning to consumers.

145. As a direct and proximate cause of the defendants’ failure to warn of the

health risks of the dog treats, Mr. Adkins and others like him suffered property damage and

economic loss.

CLASS ALLEGATIONS

146. Mr. Adkins brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3),

on behalf of a class of all persons who purchased any dog treat product containing chicken jerky

manufactured or sold by Nestle Purina or Waggin’ Train and containing chicken imported from

China, on or after a date two years prior to the filing of this action, whose dogs suffered harm or

death due to the consumption of defendants’ products. 

147. The members of the class are so numerous that joinder of all members is

impracticable. Thousands of persons purchased the dog treats at issue, and hundreds of dogs

died as a result.

148. There are questions of law and fact common to the members of the class,

which predominate over any questions that affect only individual class members. The

predominant common questions include:

(a) whether defendants failed to warn of the dangers of their products;

and

22

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 22 of 24 PageID #:22
(b) whether defendants’ culpability is such that they should be

required to pay punitive damages.

149. Mr. Adkins’s claim is typical of the claims of the class members. All are

based on the same factual and legal theories.

150. Mr. Adkins will fairly and adequately represent the interests of the class

members. Mr. Adkins has retained counsel experienced in consumer class action litigation.

151. A class action is superior to other alternative methods of adjudicating this

dispute. Individual cases are not economically feasible. 

WHEREFORE, Mr. Adkins requests that the Court enter judgment in favor of

Plaintiff and the class and against defendants for:

(a) Compensatory damages; 

(b) Punitive damages;

(c) Costs of suit; and

(d) Such other or further relief as the Court deems proper. 

/s/ Daniel A. Edelman 

Daniel A. Edelman

Daniel A. Edelman

Cathleen M. Combs

James O. Latturner

Tara L. Goodwin

Thomas E. Soule

EDELMAN, COMBS, LATTURNER & GOODWIN, LLC

120 S. LaSalle Street, Suite 1800

Chicago, Illinois 60603

(312) 739-4200

(312) 419-0379 (FAX)

courtecl@edcombs.com

JURY DEMAND

Plaintiff demands trial by jury.

/s/ Daniel A. Edelman 

Daniel A. Edelman

23

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 23 of 24 PageID #:23
NOTICE OF LIEN AND ASSIGNMENT

Please be advised that we claim a lien upon any recovery herein for 1/3 or such

amount as a court awards. All rights relating to attorney’s fees have been assigned to counsel.

/s/ Daniel A. Edelman 

Daniel A. Edelman

Daniel A. Edelman

EDELMAN, COMBS, LATTURNER & GOODWIN, LLC

120 S. LaSalle Street, 18th Floor

Chicago, Illinois 60603

(312) 739-4200

(312) 419-0379 (FAX)

24

Case: 1:12-cv-02871 Document #: 1 Filed: 04/18/12 Page 24 of 24 PageID #:24