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Wendling v. Pfizer, Inc.

A-1807-06T1 (N.J. Super. App. Div. 2008) (Unpublished)

CONSUMER FRAUD; PRODUCT LIABILITY — There is no conflict between New Jersey’s product liability law and its Consumer Fraud Act because a product liability claim stems from harm allegedly occurring as a result of a product’s use, but a consumer fraud claim is based on claims of misleading advertising or promotion.

Two owners of a race-horse brought their horse to a veterinary hospital after it did not respond to treatment for a colic condition. The horse was euthanized the next day and was then found to have been infested with tapeworms. The two owners had regularly rotated three different drugs to prevent and treat parasites in the horse. The owners later sued the manufacturer of one of the drugs for violations of consumer fraud laws based on the product’s label which stated that it controlled and prevented parasites every day. The label listed which parasites were treatable by the drug. Tapeworms were not on the list. The lower court dismissed the owners’ claims on summary judgment.

On appeal, the owners argued that an advertisement for the drug was false and misleading because it claimed that parasites would be controlled and prevented, but that the manufacturer failed to disclose that the product did not protect against tapeworms. The manufacturer argued on cross-appeal that the owners’ claims were barred by product liability laws. The Appellate Division noted that one of the owners did not specifically use the drug for tapeworms and that she was also unaware that tapeworms posed a threat to horses until the race horse was found to have them. Thus, it held that the owners did not establish any causal relation between the advertisement and the loss of their race-horse. Even though it held in favor of the manufacturer, it pointed out, in disagreement with the manufacturer, that the owners’ claims were not “failure to warn” claims. Such claims would have been barred by product liability law. Instead, it pointed out that the owners were claiming that they were misled by an advertisement which constituted their consumer fraud claim, and that such claims were allowed to go forward together with other statutory and common law claims. The Court also pointed out that there was no conflict with product liability law since such claims were not being asserted by the owners. According to the Court, a product liability claim stems from harm allegedly occurring as a result of a product’s use, but that consumer fraud claims are based on claims of misleading promotion. As a result, the lower court’s dismissal of the buyer’s action was affirmed.

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