NM mewmwh? Sean Simpson, Esq, SEN 145514 Jayme Simpson, Esq. SBN 290595 SIMPSON LAW GROUP The Historic Spreckeb Buiidixg 121 Breadway, Sixth San Diego, CA 92101 Tel: (619) 236-9696 Fax: (619) 236-9697 Andrew B. Ya??a, Esq. (ProHBcVicB - pe?di?g) GROSSMAN ROTH YAFFA COHEN 2525 Ponce de Leun Blvd., Ste. 1159 Coral Gables, FL 33134 T812 (305) 442-8666 Fax: (305) 2854668 Attorneys for Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO FLANIGAN DIEM. BLACK FENCE FARM, DENA AMADOR, CASSIE Case Nil: :1 00.605 BELMONT, IEANETTA BURSON, NEIL) FOR: BURNSON, BRENDA BURSON, KAREN) ERICKSON, COURTNEY GEBHART, LYNN) 1- NEGLIGENCE DEBRA 2. NEGLIGENT INFLICTION OF JOHN JACOBI, EMILY MCNEIL, NOAH) 3 ENMOTIQNAL DISTRESS RENE POLANCO, LINDA) A KIMBERLY 4 mm CHRISTINE SAUNDERS, CLAIRE SCHMIDT, 5' STRICT ?gum? KEN SNELL, DENISE TAYLOR, KERRY) I DEFECTIVE DESIGN URQUHART, RACHEL WINCH, BRAD) 6. STRICT LIABILITY-- YOUNG, ADRIENNE YOUNG, CAMBRIA) DEFECTIVE MANUFACTURE R033 13/ WA ROSS EQUESTRIAN: 7. STRICT LIABILITY FAILURE . . To WARN Plamnf?s), a. vs. 9. BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY WESTERN WLING, LLC d/bfa on KRUSE GRAIN and DOES 1 through 20, inclusive, Bahamas). REQUEST FOR TRIAL i The Plaintiffs, FLANIGAN BLACK FENCE FARM, DENA AMADOR, CASSIE BELMONT, JEANETTA BURSON, NEIL BURSON, BRENDA BURSON, KAREN ERICKSON, COURTNEY GEBHART, LYNN GROUNDWATER, DEBRA GUIFFRIDA, JOHN IACOBI, EMILY NOAH OLMSTEAD, RENE POLANCO, LINDA RUBIO, KIMBERLY SARKHOSH, CHRISTINE SAUNDERS, CLAIRE SCHMIDT, KEN SNELL, DENISE TAYLOR, KERRY URQUHART, RACHEL WINCH, BRAD YOUNG, ADRIENNE YOUNG, CAMBRIA ROSS ROSS EQUESTRIAN, bring the following causes of actions against Defendant Westenr Milling, LLC dfb/a 0H Kruse Grain Milling, and DOES 1 20, inclusive and allege as follows: PARTIES AND JURISDICTION Plaintiff Flanigan is a horse owner and also the owner and operator of ?Black Fence Farm,? a barn and equestrian training facility in Clovis, California. Plaintiff Flanigan owned (in whole or in part) 21 horses known as Armani, Axiom, Irish Chick, What About Bob, Katz, BFF Wiggly Investment, Code Green, Cowboys Missn Shadow, Let It Roll, French Twist, Lucky in Seattle, I Love Lucy, Lalique/Flor De Luna, Can Do It, Olaf, Miss Molly, Nightengale AKA Ta?Dal, R.B. Copperhills Red Rocket, Waterford, Wall-E, and Walter. 2. The following Plaintiffs are the owners of high quality, show horses who were boarded at Black Fence Farm: HORSE SHOW NAME Dena Amador James Blond Cocktail 11 Cassie Belmont Princess Bride Jeanetta Burson, Neil Burson and Brenda Triple Star Burson Eldorado?s Gold Karen Erickson Blackbottom?s Hotshot/Star Studded Courtney Gebhart and Flanigan Axiom Groundwater Flinestone Debra Guif?'ida Dark Knight John Jacobi Django Emily McNeil Echo Noah Olmstead Ferris Bueller Rene Polanco Chasing Blue 2 COMPLAINT Linda Rubio Black in Black Kimberly Sarkhosh Summer Sunset Christine Saunders Breezie Tucker/Pony Express Claire Schmidt D?Lux Solid Edition Ken Snell Suzanna Cimi Zoom-Z Denise Taylor Knight in White Satin Kerry Urquhart Dark Knight?s Diamond in the Rough Dark Knight?s There?s No Equal Dark Knight?s Smokey Knight Rachel Winch Gucci Brad Young L?oreal Adrienne Young Pete 3. Plaintiff Cambria Ross is a horse owner and also the owner and operator a horse training and equestrian school business called ?Ross Equestrian,? located in Temecula, California. Plaintiff Ross owned the 4 horses known as Blaze Gone Bye, Captain Dramatic ?Tuff Nab?, Artiste Wind, and Sciroco. 4. As alleged below, Plaintiffs? horses were sickened or killed by adulterated horse feed manufactured by the Defendant. 5. The Defendant Western Milling, LLC d/b/a 0H Kruse Grain Milling (?Western Milling?) is a limited liability company with its principal place of business in Goshen, California. Western Milling manufactured and distributed the adulterated horse feed giving rise to this lawsuit through its distributor located in Fresno, California. 6. The true names and capacities of Defendants, DOES 1 through 20, inclusive, whether individual, corporate, associate, individual or otherwise, are unknown to Plaintiff at the time of ?ling this Complaint and Plaintiff, therefore, sues said Defendants by such ?ctitious names and will ask leave of Court to amend this Complaint to show their true names or capacities when the same been ascertained. Plaintiff is informed and believes, and based thereon alleges, that each of the DOE Defendants is, in some manner, responsible for the events and happenings herein set forth and proximately caused injury and damages to Plaintiff as herein alleged. 3 COMPLAINT 7. At all times herein mentioned, the Defendants were acting as the agents and/or employees of each of the remaining Defendants, and were, at all times herein mentioned, acting within the scope of said agency and employment, except where alleged or contended otherwise. 8. Whenever in this Complaint reference is made to any act of Defendants, such allegations shall be deemed to mean all named Defendants and DOES 1 through 20, or their of?cers, agents, managers, representatives, employees, heirs, assignees, customers and tenants, did or authorized such acts while actively engaged in the operation, management, direction or control of the affairs of Defendants and while acting within the course and scope of their duties. FACTUAL ALLEGATIONS A. Western Milling Markets and Sells Contaminated Horse Feed to Black Fence Farm and Ross Equestrian 9. Western Milling manufactures, markets, packages, labels and sells animal feed, including horse feed. Among the products sold by Western Milling is Western Blend horse feed. 10. In September 2015, Western Milling agreed to sell certain horse feed to the public, including the Plaintiffs for the purpose of feeding their horses. Speci?cally, Western Milling agreed to sell Western Blend horse feed, Lot 5251 to the public, including but not limited to Plaintiffs Flanigan and Cambria Ross to be fed to horses boarded at Black Fence Farm and Ross Equestrian. ll. Western Milling?s marketing campaigns were carefully planned and included direct consumer advertising, marketing to horse farms and stables, including Black Fence Farm and Ross Equestrian. 12. In Western Milling?s marketing materials Western Milling represented that its horse feed was ?wholesome? and ?nutritional? and manufactured using ?consistent formulas.? Western Milling touted that its ?promise? was that it used ?the right ingredients for the right nutrition made right each and every time.? 13. Western Milling made these representations regarding the nutrition of its horse feed with the intent that stable and horse owners and other members of the public would rely 4 COMPLAINT upon them, pay for the horse feed, and give the horse feed to horses. But, when Western Milling made these representations, it knew or should have known that they were inaccurate. 14. In fact, contrary to Western Milling?s representations, the horse feed Western Milling sold to Black Fence Farm and Ross Equestrian - Western Blend horse feed, Lot 5251 was contaminated with dangerous levels of monensin (the ?Contaminated Feed?). 15. Monensin, an ionophore, is a common additive in cattle and poultry feed, but is toxic to horses. Horses fed monensin are at high risk of severe and permanent adverse health consequences, including colic, intermittent sweating, incoordination, muscle weakness and damage, elevated heart rate, kidney failure, respiratory distress, and death. B. Western Milling Willfully Failed to Take Corrective Measures to Prevent Contamination Despite Repeated Warnings 16. Western Milling was well aware of the presence of monensin in its feed. Indeed, prior to selling the Contaminated Feed to Black Fence Farm and Ross Equestrian, consumers of Western Milling feed had complained to the federal regulatory authorities that animals were dying as a result of consuming Western Milling feed that was contaminated with monensin and Western Milling had to recall various lots of that contaminated feed from the market. 17. Additionally, and as a result of inspections into the animal death reports, Western Milling had been warned by the state and/or federal regulatory agencies on prior occasions that its feed was contaminated with monensin and that it must take corrective measures to ward against cross contamination between its ?medicated? feed, which includes monensin, and its ?non-medicated? feed, which should not include that additive. 18. First, between December 2009 and July 2010, the United States Food and Drug Administration sampled animal feed produced by Western Milling and found impermissiny high levels of monensin in that feed. The FDA reported these ?ndings to Western Milling, but Western Milling failed to correct the issue. In fact, in October 2010, the FDA noted that Western Milling had no record ?to document that investigations were conducted into those out of tolerance reports, nor d[id] [it] have a record to document that any corrective actions were taken as a result of such investigations.? 5 COMPLAINT Is.) in? l? l? t?I'I?n 19. During the October 2010 inspection, the FDA found that the monensin contamination persisted, concluding that certain lots of Western Milling?s non-medicated poultry feed improperly included monensin. The FDA speci?cally noted that Western Milling did not have adequate cleaning procedures in place ?to prevent cross-contamination between medicated feed and non-medicated feeds.? In particular, the FDA found that Western Milling did not have adequate procedures for the sacking and packaging of horse feed and was not properly cleaning its mixing bins after mixing product containing monensin and before mixing horse feed products in those same bins. Western Milling received these ?ndings from the FDA, but failed to take appropriate action to stOp the dangerous contamination. 20. In March 2011, another inspection by the FDA revealed yet again that certain of Western Milling?s feed included monensin, even though it was not formulated to include that additive. This time, the FDA found speci?cally that in January 2011, Western Milling had manufactured two lots of horse feed and one lot of poultry feed that were adulterated by virtue of the presence of monensin beyond the ?permissible limits.? The FDA found that Western Milling had ?failed to conduct a thorough investigation into these ?ndings to determine the cause of this cross contamination, and [had] failed to take corrective action to ensure that such cross contamination does not occur in the ?iture.? 21. In its March 2011 Inspection Report, the FDA also cited to ?ndings of the California Department of Health, which had also sampled a lots of horse feed manufactured by Western Milling, and found monensin in at least ?ve lots of horse feed. The FDA noted that State of California?s testing showed ?a low, but persistent level of monensin in the ?rm?s horse feed.? 22. Finally, during this 2011 inspection, the FDA found that Western Milling of?cials had lied during the course of the investigation about their horse feed manufacturing procedures by representing ?that they had a dedicated sacking line to medicated feed,? when, in fact, the company did not have any such separate sacking line. 23. The FDA ultimately concluded and reported to the CEO of Western Milling that its equipment was still not designed, constructed or installed to prevent cross contamination 6 COMPLAINT between medicated and non-medicated feed. For his part, the Western Milling CEO admitted that he was aware of some carryover of monensin into non?medicated feed, but claimed that he did not consider the amounts to be signi?cant and, so, had not taken any steps to correct the cross contamination. The FDA found this response unacceptable and issued a warning to the CEO for failing to use proper equipment, failing to maintain adequate procedures to avoid contamination, and for failing to take corrective action to ensure that Western Milling?s horse feed was free from toxic substances. 24. In addition to these two prior FDA inspections into Westem Milling?s California operations, the FDA had also investigated Western Milling?s Arizona location and had issued the same CEO, Kevin Kruse, a warning letter, dated July 6, 2010. That letter indicated that feed manufactured by Western Milling in Arizona was ?out of tolerance? and contained monensin. In connection with this incident of contamination, the Arizona Department of Agriculture also issued a Notice of Violation to Western Milling on February 25, 2011. 25. By virtue of these several FDA investigations, complaints of contamination and animal deaths, and the several lots of horse feed that tested positive for monensin, Western Milling and its CEO Kevin Kruse knew of the probable dangerous consequences of its failure to take corrective measures to avoid monensin contamination in its horse feed. Yet, Western Milling deliberately failed to take those corrective steps to avoid the dangerous consequences. 26. In fact, notwithstanding the numerous warnings of monensin contamination, Western Milling willfully continued to manufacture feed contaminated with monensin, with the intent that it be fed to horses. In doing so, Western Milling acted with the intent to cause injury to its consumers or with a knowing and conscious disregard of the rights or safety of those consumers, including Plaintiffs. 27. Alternatively, Western Milling and Kevin Kruse failed to exercise reasonable care in determining the contamination and potential adverse consequences of feeding contaminated feed to horses. 7 COMPLAINT ?oor-1thth- C. Black Fence Farm and Ross Equestrian Horses Eat the Horse Feed, 28. In September 2015, Black Fence Farm and Ross Equestrian received a delivery of the Contaminated Feed and fed it to the ?fty horses owned by Plaintiffs. 29. Almost immediately after the Plaintiffs? horses ate the Contaminated Feed, they began to suffer serious adverse side effects, including but not limited to colic, acute neurologic as well as sudden death. Thirteen of the horses, those owned by Flanigan, Rachel Winch, Brad Young, Adrienne Young, Karen Erickson, Ken Snell and Denise Taylor, died painful, and, in some cases, violent deaths. 30. The remainder of the horses continue to suffer and deteriorate. They are sickly, dangerous and unsafe to ride and are certainly no longer ?t for use or competition. Also, these horses that are still alive and struggling require veterinary care on a daily and/or weekly basis. Accordingly, the Plaintiffs will have to purchase other horses, and retrain these new horses, to continue their sport. 31. Thus, as a result of Western Milling?s will?il indifference, Plaintiffs have had to endure the cruel and unjust hardship of watching their beloved horses suffer and die. Each of the Plaintiffs enjoyed a close personal connection with their horses and attended to their horses regularly. Accordingly, each of the Plaintiffs has been devastated as a result of the illness and/or death of their horse and has experienced a physical manifestation of their emotional injury in the form of anxiety, depression, and nightmares. 32. Thus, Western Milling?s failure to take corrective steps to prevent monensin contamination in its feed, has subjected Plaintiffs to various injuries, including emotional and physical distress, the medical and veterinary expenses associated with caring for and euthanizing ailing horses, the expenses associated with hauling and disposing of the bodies of dead horses, and the replacement costs associated with purchasing and training new horses. 33. And, in addition to these injuries, Plaintiffs Flanigan and Ross have had their businesses devastated by the rampant illness and death caused by the Western Milling and its Contaminated Feed. Their professional reputations have suffered and they are now forced to 8 COMPLAINT replace their horses and rebuild their businesses. 34. On September 21, 2015, the California Department of Food and Agriculture tested the Contaminated Feed and con?rmed that it contained unsafe levels of monensin. 35. On September 25, 2015, Western Milling recalled the Western Blend Horse Feed, Lot 5251, due to monensin contamination. 36. Plaintiffs noti?ed Western Milling of their breach of express and implied warranties in writing on September 25, 2015. FIRST CAUSE OF ACTION (NEGLIGENCE) 37. The Plaintiffs incorporate by reference paragraphs 1 through 36 as if ?illy set forth herein and timber allege as follows: 38. Western Milling had a duty to exercise reasonable care in the manufacture, labeling, marketing, sale and distribution of the Contaminated Feed. 39. Western Milling breached their duty of care to the Plaintiff in the manufacture, labeling marketing, and distribution of the Contaminated Feed by its despicable conduct, including, among other things: a. Deliberater failing to take corrective measures in its manufacturing process to ensure that its horse feed was not contaminated with monensin; b. Failing to adhere to the directives of the FDA and California Department of Health that it take measures to avoid monensin contamination in its horse feed and instead, willfully continuing to manufacture and sell contaminated feed, with the intent that it be fed to horses; and c. Failing to warn Plaintiffs that the Contaminated Feed contained monensin. 40. Western Milling knew or should have known that the horses at Black Fence Farm and Ross Equestrian would suffer serious injury as a result of Western Milling?s failure to exercise ordinary care in connection with the manufacture, sacking, labeling, marketing, sale and distribution of the Contaminated Feed. 9 COMPLAINT 41. As a proximate result of Western Milling? negligence, Plaintiffs have in the past and will in the future suffer the damages alleged below. SECOND CAUSE ACTION (NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS) 42. The Plaintiffs incorporate by reference paragraphs 1 through 41 as if ?rlly set forth herein and ?rrther alleges as follows: 43. As alleged above Western Milling owed a duty to Plaintiffs to exercise reasonable care in the manufacture, labeling, marketing, sale and distribution of the Contaminated Feed. 44. As alleged above, Western Milling was negligent in carrying out that duty. 45. As a result of this negligence, Plaintiffs were forced to witness the horrible illness and/or deaths of their horses, and in many occasions directly deal with their horses including holding their horses as they suffered and/or died. This directly caused Plaintiffs to suffer serious emotional distress, including suffering, anguish, horror, grief, anxiety, worry, and shock. Western Milling?s negligence was a substantial factor causing this serious emotional distress. 46. As a proximate result of Western Milling? negligence, Plaintiffs have in the past and will in the future suffer the damages alleged below. THIRD CAUSE OF ACTION (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS) 47. The Plaintiffs incorporate by reference paragraphs 1 through 46 as if fully set forth herein and timber allege as follows: 48. As alleged above Western Milling?s conduct in the manufacture, labeling, marketing, sale and distribution of the Contaminated Feed was outrageous. Western Milling had been alerted by the FDA that its horse feed was contaminated with monensin, had received reports of animal deaths, and knew that its horse feed had tested positive for monensin. Notwithstanding this actual knowledge, Western Milling and its CEO deliberately lied to the authorities, failed to take corrective measures to avoid monensin contamination in its horse 10 COMPLAINT feed and willfully continued to manufacture and sell contaminated feed, with the intent that it be fed to horses. In doing so, Western Milling acted with the intent to cause injury to its consumers or with a knowing disregard of the rights or safety of those consumers, including Plaintiffs. 49. Thus, Western Milling acted with reckless disregard of the probability that Plaintiffs would suffer emotional distress, knowing that Plaintiffs would be present to witness the suffering of their horses. 50. As a result of this reckless disregard, Plaintiffs were forced to witness the horrible illness and/or deaths of their horses, and in many occasions directly deal with their horses including holding their horses as they suffered and/or died. This directly caused Plaintiffs to suffer serious emotional distress, including suffering, anguish, horror, grief, anxiety, worry, and shock. Western Milling?s reckless conduct was a substantial factor causing this serious emotional distress. FOURTH CAUSE OF ACTION (FRAUD) 51. The Plaintiffs incorporate by reference paragraphs 1 through 50 as if ?illy set forth herein and further allege as follows: 52. Through its marketing materials, Western Milling represented to consumers, including Plaintiffs, that its horse feed was ?wholesome? and ?nutritional? and manufactured using ?consistent formulas.? Western Milling further promised that it used ?the right ingredients for the right nutrition made right each and every time.? With respect to the Contaminated Feed manufactured by Western Milling and sold to Plaintiffs, Western Milling?s representations were false. 53. Further, Western Milling knew that these representations were false because it had previously and repeatedly been warned by regulatory authorities of monensin contamination in its horse feed. Upon receiving these reports and warnings, Western Milling knowingly failed to take appropriate corrective measures to avoid monensin contamination. Further, its executives repeatedly lied to the authorities about taking corrective action. I COMPLAINT 54. Western Milling intended that consumers, including Plaintiffs, would rely on its representations that its horse feed was nutritious by purchasing Western Milling horse feed and giving that feed to their horses. And, Plaintiffs did, in fact, rely on these representations as intended. 55. As a direct and proximate result of Plaintiffs? reliance on the misrepresentations of Western Milling and purchase of the Contaminated Feed, Plaintiffs were injured and have in the past and will in the future suffer the damages alleged below. FIFTH CAUSE OF ACTION (STRICT LIABILITY- DEFECTIVE DESIGN) 56. The Plaintiffs incorporate by reference paragraphs 1 through 55 as if ?rlly set forth herein and ?irther alleges as follows: 57. Western Milling is the manufacturer, distributor, marketer, promoter, supplier and seller of the Contaminated Feed, which is defective and unreasonably dangerous both in terms of its process and the product itself. 58. Because it includes monensin, the Contaminated Feed has a defect in its formulation such that it is unreasonably dangerous to consumers, including Plaintiffs. 59. Because of this defect, the Contaminated Feed does not perform as safely as an ordinary consumer would expect and the risk of the dangers of the product outweighs its bene?t. 60. The defect in Contaminated Feed existed when it left the possession and control of Western Milling. 61. As a direct and proximate result of the defective design of the Contaminated Feed, Plaintiffs have in the past and will in the ?rture suffer the damages alleged below. SIXTH CAUSE OF ACTION (STRICT LIABILITY- DEFECTIVE MANUFACTURE) 62. The Plaintiffs incorporate by reference paragraphs 1 through 61 as if ?Jlly set forth herein and timber allege as follows: 12 COMPLAINT 63. Western Milling is the researcher, developer, manufacturer, distributor, marketer, promoter, supplier and seller of the Contaminated Feed, which was defective and unreasonably dangerous. 64. The Contaminated Feed was the result of an improper or incorrect manufacturing process that resulted in the feed deviating from its intended composition. 65. As a result of these manufacturing defects, the Contaminated Feed that was fed to Plaintiffs? horses, was injurious to Plaintiffs? horses, sickening and killing some of them. 66. The defects in the Contaminated Feed existed when it left the possession and control of Western Milling. 67. As a direct and proximate result of the defective manufacture of the Contaminated Feed, Plaintiffs have in the past and will in the ?iture suffer the damages alleged below. SEVENTH CAUSE OF ACTION (STRICT LIABILITY - FAILURE TO WARN) 68. The Plaintiffs incorporate by reference paragraphs 1 through 67 as if fully set forth herein and timber alleges as follows: 69. Western Milling never provided adequate warning or information to Plaintiffs of the risks that the Contaminated Feed posed. 70. The Contaminated Feed that was fed to Plaintiffs? horses was defective by reason of Western Milling?s failure to provide these adequate warnings or instructions regarding the feed. 71. Westem Milling researched, develOped, tested, manufactured, sacked, inspected, labeled, distributed, marketed, promoted, sold and otherwise released into the stream of commerce the Contaminated Feed with ?Jll knowledge of the contamination problems that had existed for some time. In connection with the distribution and sale of the Contaminated Feed, Western Milling had a duty to warn of the risks associated with the use of it. 72. Western Milling failed to provide such warning or instruction that a manufacturer exercising reasonable care would have provided to horse owners who used the Contaminated 3 COMPLAINT Feed, concerning the following risks, of which Western Milling had actual or constructive knowledge at the time the Contaminated Feed left Western Milling?s control: the high likelihood that the feed was contaminated; and the high rate of illness and death likely to be caused by the Contaminated Feed; and 73. After receiving notice of injuries resulting from use of the Contaminated Feed, Western Milling failed to provide appropriate warnings or instructions that a manufacturer exercising reasonable care should have provided to horse owners, including the Plaintiffs. For example, Western Milling failed to provide warnings or instructions that the Contaminated Feed would cause an unreasonably high rate of illness or sudden death. 74. As a direct and proximate result of the inadequate warning and instructions by Western Milling, Plaintiff has in the past and will in the future suffer economic and non- economic injuries. EIGHTH CAUSE OF ACTION (BREACH OF EXPRESS WARRANTY) 75. The Plaintiffs incorporate by reference paragraphs 1 through 74 as if ?Jlly set forth herein and ?nther allege as follows: 76. In advertising, labeling, marketing and promoting horse feed, including the Contaminated Feed that was sold to Black Fence Farm and Ross Equestrian, Western Milling represented that the feed was nutritious and safe for consumption by horses, thereby making an express warranty. 77. Plaintiffs relied upon Western Milling? representations in feeding the Contaminated Feed to their horses in the manner intended by Western Milling. 78. Westem Milling knew or should have known that the Contaminated Feed would be used by Plaintiffs to feed their horses and that Western Milling?s representations would be relied upon. 14 COMPLAINT 79. The Contaminated Feed fed to Plaintiffs? horses was adulterated with monensin and caused the horses to die or suffer severe adverse health consequences. Accordingly, the Contaminated Feed did not conform to Western Milling? representations. 80. Because the Contaminated Feed failed to conform to Western Milling?s representations and was not suitable for the purpose for which it was sold or used, Western Milling have breached their express warranty. 81. As a direct and proximate result of Western Milling? breach of express warranty, Plaintiffs have in the past and will in the future suffer the damages alleged below. NINTH CAUSE OF ACTION (BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY) 82. The Plaintiffs incorporate by reference paragraphs 1 through 81 as if fully set forth herein and ?rrther allege as follows: 83. Western Milling knowingly sold the Contaminated Feed to Black Fence Farm and Ross Equestrian for the purpose of consumption by horses, including those owned by Plaintiffs. 84. At the time of the purchase, Western Milling was in the business of selling horse feed and held itself out of having special knowledge regarding the manufacture of such feed. 85. In fact, Plaintiffs purchased the Contaminated Feed and fed it to their horses in reliance on the expertise, judgment and public representations of Western Milling. 86. The Contaminated Feed was fed to the Plaintiffs? horses and used by the Plaintiffs for the purpose and in the manner intended by Western Milling. 87. The Contaminated Feed was not reasonably ?t for its purpose and did not meet the expectations for the performance of the product when used in the customary, usual and intended manner. Nor was the product minimally safe for its intended purpose. 88. Plaintiffs took reasonable steps to notify Western Milling within a reasonable time that the Contaminated Feed was contaminated. 15 COMPLAINT 89. As a direct and proximate result of Western Milling? breach of the implied warranty of merchantability, Plaintiffs have in the past and will in the ?rture suffer the damages alleged below. CLAIM FOR DAMAGES COMMON TO ALL COUNTS CLAIM BY ALL PLAINTIFFS 90. As a result of the conduct of the Defendants as alleged and the consumption of the Contaminated Feed, Plaintiffs have suffered the following injuries: a. emotional and physical distress caused by witnessing and caring for the horses as they suffered and died; b. medical and veterinary care and expenses associated with caring for ailing horses; c. replacement costs associated with purchasing and training new horses; d. loss of equipment; e. other associated expenses to care for and keep the surviving horses pain- free; damages as listed in the life care plan and associated costs for each of the surviving horses until they are euthanized or die; 3. costs associated to euthanize and haul the horses when they deteriorate to the point that they can no longer be pain-free; and h. possible breeding. 91. In addition to these damages, based on the numerous warnings of monensin contamination, Western Milling will?rlly continued to manufacture feed contaminated with monensin, with the intent that it be fed to horses while continuing to promise and represent the safety of this product. In doing so, Western Milling acted with the intent to cause injury to its consumers or with a knowing and conscious disregard of the rights or safety of those consumers, including Plaintiffs, and therefore the Plaintiffs are entitled to punitive damages on account of the malice, oppression, and fraud perpetrated by Western Milling and its of?cers and directors in the marketing, manufacture and sale of the Contaminated Feed, as alleged 16 COMPLAINT above. CLAIM BY FLANIGAN d/b/a BLACK FENCE FARM 92. As a result of the conduct of the Defendants as alleged and the consumption of the Contaminated Feed, and in addition to those injuries alleged above suffered by all Plaintiffs, Plaintiff Flanigan, in the operation of Black Fence Farm, has suffered lost business income, including for boarding, lessons, lost sales commissions, training, hauling, showing, breeding and damage to her reputation both in the past and in the future. CLAIM BY CAMBRIA ROSS d/b/a ROSS EQUESTRIAN 93. As a result of the conduct of the Defendants as alleged and the consumption of the Contaminated Feed, and in addition to those injuries alleged above suffered by all Plaintiffs, Plaintiff Cambria Ross, in the operation of Ross Equestrian, has suffered lost business income including for lessons, lost sales commissions, and the damage to her reputation both in the past and in the ?rture. PRAYER FOR RELIEF WHEREFORE, Plaintiff requests judgment against Western Milling, LLC and DOES 1 through 20 inclusive, as follows: 1. For General Damages according to proof; 2 For Special Damages according to proof; 3 For Punitive or Exemplary according to proof; 4. For Costs of Suit herein incurred; and For such other and further relief as the court may deem just and proper. If! 17 COMPLAINT DEMAND FOR JURY TRIAL FUTHERMORE, The Plaintiffs demand a trial by jury on all issues triable as of right. DATED: February 24, 2016 Respect?illy submitted, GROSSMAN ROTH YAFF A COHEN BY: impson, Esq. Andrew B. Yaffa, Esq. (ProHacVice-Pending) Attorneys for the Plaintiffs I 8 COMPLAINT