What a company knew and when is a critical question in any lawsuit involving recalled products. And the answer may be complicated, particularly when a manufacturer announces multiple recalls and expands previous recalls.

In early September, Mid-America announced a voluntary recall of one lot of its Victor Super Premium Dog Food because of potential salmonella contamination after the South Carolina Department of Agriculture sampled the dog food in a random test. On October 30th, Mid-America announced a second voluntary recall covering three lots of Victor Super Premium Dog Food Select Beef Meal & Brown Rice Formula after random sampling by a third-party revealed salmonella contamination. And on November 9th, Mid-America announced it was expanding its prior October recall to include three additional dog foods because other product lots from the same facility also tested positive for salmonella.

Now, Mid-America is facing a putative class action in the U.S. District Court for the Eastern District of Texas. On November 28, 2023, two consumers from Utah and Nevada filed Andersen et al., v. Mid-America Pet Food, L.L.C., No. 5:23-cv-00140 (E.D. Texas November 28, 2023), asserting violations of state consumer protection acts, and claims for breach of warranty, negligence, negligent misrepresentation, fraudulent concealment, and unjust enrichment. The plaintiffs allege that Mid-America’s marketing and advertising is false, deceptive, and misleading to consumers because pet products sold were contaminated with salmonella. They also claim that both of their dogs had to be euthanized after eating the contaminated pet food, and  one plaintiff alleges that both she and her son fell ill around the same time after handling the contaminated product.

In their complaint, plaintiffs also detail the chronology of Mid-America’s various recalls, and they assert that the company (1) failed to adequately test, screen, and/or inspect the pet food prior to sale, (2) owed them a duty to promptly recall and remove all of the affected pet food products from the marketplace. This is not the first time that consumers have used multiple or expanded recalls to insinuate a defendant knew and failed to disclose an alleged defect or breached its duty to consumers. For example, just last year, plaintiffs in Kroutilin v. FCA US, LLC—an action involving allegedly defective electrical system control in the vehicle—argued in opposition to a motion to dismiss that the limited scope of defendant’s recalls demonstrated a pattern of concealment and improper denial of the alleged defect. 2022 WL 18278602, at *1 (C.D. Cal. Dec. 7, 2022). However, in Kroutilin, the court granted defendant’s motion, concluding that those allegations were insufficient to establish a duty to disclose. Id. at *7-8. Whether MidAmerica will move to dismiss on similar grounds remains to be seen. The Court in Anderson has granted the company’s request for an extension of time; MidAmerica now has until February 5, 2024 to respond to plaintiffs’ complaint.