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DEREK L. SMITH AND REBECCA Y. SMITH, ET AL vs. KALMBACH FEEDS, INC., ET AL.

Cuyahoga County

CV 16 867174

 

NOW COME the Plaintiffs, Derek L., and Rebecca Y. Smith, by and through their undersigned counsel, and for their Complaint Against Kalmbach Feeds, Inc. (hereinafter “Kalmbach”), state as follows:

PARTIES

1. Plaintiffs bring this Complaint to recover damages arising from the defective design, manufacture, production, testing, sales and distribution of Kalmbach’s “Tribute Equine Nutrition” line of equine nutritional products, which poisoned and killed many of Plaintiffs’ valuable Percheron Draft Horses, and permanently damaged and diminished the value of Plaintiffs’ valuable Percheron Draft Horses that were poisoned by, but not killed by Kalmbach’s “Tribute Equine Nutrition” line of equine horse nutrition products.

2. Derek L. Smith and Rebecca Y. Smith are husband and wife and reside at 36205 Miles Road, Moreland Hills, Ohio, Cuyahoga County, Ohio.

3.Kalmbach is an Ohio corporation for profit bearing Ohio Entity No. 64591, with its primary place of business at 7148 State Highway 199, North Upper Sandusky, Ohio 43351. Milton P, Kalmbach is being named only in his capacity as Statutory Agent.

4. John Doe Defendants 1-10 and officers, employees, and/or agents of Kalmbach whose identities are presently unknown to Plaintiffs, who have caused and/or participated in the causes of actions more fully set forth herein. Plaintiffs, therefore, reserve the right to amend this Complaint or seek leave to include additional claims once the identities of John Does 1-10 are discovered.

5. This Court has general and specific personal jurisdiction over Kalmbach, this Court has subject matter jurisdiction and venue is proper.

INTRODUCTION

6. At all relevant times, Derek and Rebecca Smith owned, bred and raised valuable Percheron Draft Horses at 36205 Miles Road, Moreland Hills, Ohio, Cuyahoga County, Ohio.

7. Kalmbach feeds holds itself out as a regional leader in animal nutrition, including particularly and without limitation equine nutrition. Kalmbach manufactures and markets a line of equine nutritional food products known as “Tribute Equine Nutrition”. Kalmbach’s “Tribute Equine Nutrition” line of products are available through authorized Kalmbach dealers, including in this case Chagrin Pet & Garden Supply, Inc. (“Chagrin Pet & Garden).

8. At all relevant times, Kalmbach falsely represented to its authorized dealers, including in this case Chagrin Pet & Garden, that Kalmbach’s “Tribute Equine Nutrition”, a line of horse feed products were manufactured in a “closed” equine feed mill, and was “ionophore free”. These false representations were materially important to all users of Kalmbach’s “Tribute Equine Nutrition”, a line of horse feed products, as agricultural feeds for cattle, swine, and poultry contain ionophores, which are deathly toxic and poisonous to horses.

9. Livestock feed containing ionophores are commonly referred to as “medicated feeds”.

10. At all relevant times, Kalmbach would produce its “Tribute Equine Nutrition” line of product in/on/with the same equipment Kalmbach used at its plant in Upper Sandusky, Ohio to make “medicated feeds”, a material fact that was expressly known to Kalmbach, and knowingly and maliciously concealed from Kalmbach’s
authorized “Tribute Equine Nutrition” dealers and Kalmbach’s end users including specifically the Smiths.

11. For example, the FDA found that on or about March 20, 2015, Kalmbach manufactured a medicated livestock feed on the exact same “Mixer Line” used to make “(Lot #71345), a non-medicated horse feed”, which upon information and belief was Tribute Foal Foundation. See FDA Form 483, attached hereto as Exhibit “A”.

Kalmbach has not denied this Exhibit “A” FDA Form 483 finding. See Kalmbach’s May 1, 2016, Response attached hereto as Exhibit “B”.

12. Also at all relevant times, Kalmbach’s “Tribute Equine Nutrition” line of products were not exclusively made at Kalmbach’s “closed” and/or “ionophore free” facility in Upper Sandusky, Ohio, but were often manufactured by various contract feed mills, a material fact that was expressly known to Kalmbach, and knowingly and maliciously concealed from Kalmbach’s authorized “Tribute Equine Nutrition” dealers and Kalmbach’s end users including specifically the Smiths.

13. An integral part of the manufacturing process is extrusion (i.e. – pelletizing), and at all relevant times, Kalmbach had some of its “Tribute Equine Nutrition” horse feeds extruded by contract toll-mills, that also milled “medicated foods”, a fact that was expressly known to Kalmbach, and knowingly and maliciously concealed from Kalmbach’s authorized “Tribute Equine Nutrition” dealers and Kalmbach’s end uses including specifically, the Smiths.

14. At all relevant times, the Smiths’ local horse feed supplier Chagrin Pet & Garden stated, on numerous occasions, that Kalmbach’s “Tribute Equine Nutrition” horse feeds, is a premium horse feed, and warranted and represented on Kalmbach’s behalf that the “Tribute Equine Nutrition” horse feeds were made in a “closed” and “ionophore free” equine feed facility in Upper Sandusky, Ohio.

15. Kalmbach’s representations about its “Tribute Equine Nutrition” – that it was manufactured in a “closed” and “ionophore free” equine feed mill in Upper Sandusky, Ohio – were false when made by Kalmbach; Kalmbach had express knowledge of the falsity of those statements; Kalmbach maliciously concealed the truth regarding the probability of ionophore contamination in its “Tribute Equine Nutrition” line of horse feeds from Kalmbach’s authorized dealers and from Kalmbach’s end users; and, Kalmbach made these materially false representations with the specific intent of having its authorized dealers and end users justifiably rely on those materially false statements.

16. The Smiths justifiably relied on the representations made by Kalmbach’s authorized dealer Chagrin Pet & Garden, that the ionophore free “Tribute Equine Nutrition” horse feeds were manufactured in a “closed” and “ionophore free” equine feed mill in Upper Sandusky, Ohio.

17. Thereafter, and abruptly and without explanation, during and around July of 2015 through November of 2015 and up until the present, the Smiths’ horses became critically ill, and began exhibiting symptoms consistent with ionophore contamination and poisoning.

18. Many of the Smiths horses began to die violent deaths from ionophore poisoning and toxicity. Other horses became and remain extremely ill, with greatly diminished value.

19. The Smiths reported these tragic events to both Chagrin Pet & Garden, and to Kalmbach. In response to these reports, Kalmbach continued to assure the Smiths that their horses’ illnesses and deaths could not and were not associated with or attributable to Kalmbach’s “Tribute Equine Nutrition” line of horse feed. These Kalmbach statements to the Smiths were knowingly and falsely made by Kalmbach, and Kalmbach maliciously concealed the truth from the Smiths, that Kalmbach’s “Tribute Equine Nutrition” horse feed lines were manufactured in/on/with the exact same equipment that Kalmbach used to manufacture medicated feeds at its plant in Upper Sandusky, Ohio, and also contract-milled elsewhere by contract feed mills that manufacture medicated feed.

20. On or around August 28, 2016, without any notice or advance warning, Doug Southerland, a duly authorized Kalmbach representative arrived at the Smiths’ horse farm located at 36205 Miles Road, Moreland Hills, Ohio, Cuyahoga County, Ohio, and took samples of all of the Smiths’ Kalmbach “Tribute Equine Nutrition” horse feed from the Smiths’ horse farm, as well as samples of various hays also located at the Smiths’ horse farm. As will be more fully set forth herein, Kalmbach has intentionally and maliciously spoliated this material, crucial and essential evidence.

COUNT ONE

NEGLIGENCE

21. Plaintiffs incorporate by reference as if fully set forth herein all allegations contained in Paragraphs 1 through

20 above, and further allege as follows:

22. At all relevant times, Kalmbach had a duty to design, manufacture, formulate and test its “Tribune Equine Nutrition” line of horse feeds, to be “ionophore free”, as Kalmbach has express knowledge that ionophores are deathly toxic and poisonous to horses.

23. During and around July of 2015, the Smiths’ valuable Percheron Draft Horses and other horses, became violently ill, many of which violently died, and many of which have become weak and permanently damaged and injured and of greatly diminished value, all while being fed Kalmbach’s “Tribute Equine Nutrition” line of horse feeds.

24. It was foreseeable to Kalmbach, that ionophore contamination in Kalmbach’s “Tribune Equine Nutrition” line of horse feeds, would result in death, damage and diminution in value to horses that were fed Kalmbach’s ionophore contaminated “Tribune Equine Nutrition”, as at all relevant times Kalmbach had express knowledge that its “Tribune Equine Nutrition” line of horse feed was not ionophore free.

25. The Smiths’ horse deaths and permanently damaged animals that were directly and proximately caused by ionophore poisoning from Kalmbach’s “Tribune Equine Nutrition” line of horse feeds include:

* the July 3, 2015 death of Licorice, a Shetland Pony;
* the same week the Smiths’ English Lop Doe Rabbit Jemimah Puddleduck died of ionophore poisoning;
* within the week of Licorice’s death, four of the Smiths other horses began showing symptoms consistent with ionophore poisoning. These horses are:
** the Smiths’ Pony Peppermint and a thoroughbred Galvin Kilian became acutely ill from ionophore poisoning, and remain acutely ill, permanently damaged and of greatly diminished value from ionophore poisoning;

** also that week, the Smiths’ Futurity Champion Percheron Draft Horse Elkview Tammy became acutely ill from ionophore poisoning, and remains acutely ill, permanently damaged and of greatly diminished value from ionophore poisoning;
** also that week, Elkview Tammy’s three month old filly, became acutely ill from ionophore poisoning, was hospitalized for five days in veterinary ICU from ionophore poisoning, and remains acutely ill, permanently damaged and of greatly diminished value from ionophore poisoning;
* During and around Labor Day of 2015, the Smiths’ valuable Draft Horse mare Camlyn’s four month old colt, died in utero, requiring veterinary intervention to abort and remove the dead colt in utero;
* In November of 2015, the Smiths’ valuable Percheron Draft Horse mare Camlyn died from ionophore poisoning; and,
* soon thereafter another one of the Smiths’ valuable Percheron Draft Horses mare Tequila died from ionophore poisoning.

26. During these unpleasant events from July 3, 2015 through November, 2015, while the Smiths’ valuable Percheron Draft Horses and other livestock were dying from ionophore poisoning, Kalmbach was concealing evidence and was fabricating evidence, in an attempt to avoid liability for killing the Smiths’ valuable Percheron Draft Horses and other livestock, from Kalmbach’s ionophore contaminated “Tribute Equine Nutrition” line of horse feeds.

27. Not satisfied with Kalmbach’s materially false explanations regarding the Smiths’ dead horses and damaged horses, the Smiths obtained their own scientific testing, that revealed Kalmbach’s “Tribute Equine Nutrition” line of horse feed was indeed contaminated by ionophores known as “monensin” and “lasalocid”. Monensin and lasalocid are ionophores known to be deathly toxic and poisonous to horses.

28. Neither monensin nor lasalocid were listed as an ingredient on the feedbag tags containing the ionophore contaminated Kalmbach’s “Tribute Equine Nutrition” line of horse feeds.

29. Plaintiffs were unaware until Plaintiffs performed their own testing on Kalmbach’s “Tribute Equine Nutrition” line of horse feeds of the presence of monensin and lasalocid in the toxic and deathly poisonous Kalmbach’s “Tribute Equine Nutrition” line of horse feeds, that the Smiths’ valuable Percheron Draft Horses and other livestock were exposed to.

30. The Smiths’ valuable Percheron Draft Horses that have died are irreplaceable because of their unique genetic bloodlines and pedigrees. The Smiths’ valuable Percheron Draft Horses and other livestock that did not die from ionophore poisoning have been permanently damaged, injured and greatly diminished in value.

31. Kalmbach has a legal duty to manufacture, distribute and sell equine nutritional horse feeds which are not harmful to horses, which did not contain ionophores, and which conformed to Kalmbach’s “guaranteed analysis” of the ingredients of “Tribute Equine Nutrition” line of horse feeds.

32. Defendant Kalmbach negligently designed, manufactured, produced, tested, inspected, marketed, promoted, distributed, and sold toxic ionophore contaminated horse feed to Plaintiffs and others similarly situated to Plaintiffs.

 

continue reading complaint below

Read Kalmbach / Tribute Equine Nutrition Complaint (includes FDA doc)

Plaintiffs’ Interrogatories / Request for Production from Kalmbach / Tribute Equine Nutrition 

 

Kalmbach / Tribute Equine Nutrition never answered the contaminated horse feed suit, but apparently settled the case. 

Plaintiffs dismissed the suit against Kalmbach with prejudice on October 14, 2016, according to the court records.

 

Tribute Equine Nutrition Feed Poisoned Horses: Suit