On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-348-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Gilroy and Baxter.
Plaintiffs Janice Wendling and Holly Candia appeal from the summary judgment dismissal of their complaint against defendant Pfizer, Inc. for common law negligent misrepresentation and violation of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. These claims essentially allege that the advertisement for defendant's veterinary product, Strongid C, was false and misleading because it stated that it would "prevent and control parasites every day," but it did not prevent or control tapeworms, a type of parasite, that infested and eventually killed their horse. Defendant cross-appeals, contending the court erred as a matter of law in ruling that plaintiffs' claims are not barred by the New Jersey Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11. We affirm in all respects.
We consider the evidence of record in the light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Wendling began raising and racing horses in 1977. She and her husband bought the Charter Acres horse farm in 1981 and by 2002, there were approximately twelve to eighteen horses on the farm, including a race-horse named "Always Special." Wendling and Candia, who worked at the farm as an exercise rider, each owned a one-half interest in "Always Special."
On August 11, 2002, "Always Special" exhibited signs of colic. The horse, however, did not respond to the routine treatment for colic, and was immediately transferred to the New Bolton Center at the University of Pennsylvania School of Veterinary Medicine. It was euthanized the next day, August 12, 2002. A post-mortem examination revealed that it had an obstruction at the ileocecal orifice, which was infested with over 100 tapeworms.
Plaintiff Wendling had no formal education or training in the care and treatment of horses, and instead acquired any knowledge from "years and years and years of taking care of them." She made all decisions as to what deworming products to use in order to prevent and treat parasites. At the time of the horse's death in 2002, there was no drug approved by the federal Food and Drug Administration (FDA) for the control and treatment of tapeworms in horses*fn1, although there were such products in development. Consequently, plaintiffs were using a rotation of three different drugs to control parasites in their horses: Strongid C, a product of defendant Pfizer, Inc.; Panacur, a product of Hoechst Ag.*fn2; and Zimecterin, a product of Farnam Companies, Inc. According to Wendling, she used Strongid C because "that's what the breeding farm used where he came from," and her veterinarian also suggested the product as part of a drug rotation regimen for the horses at the farm.
The Pfizer print advertisement for Strongid C 2X*fn3 shows a "ghosted" or fading horse and rider, accompanied by the following text:
He's got strength, talent and heart. But without Strongid C 2X, parasites could erase it all.
Your horse may look great on the outside, but inside parasites could be erasing his good health and performance potential. That's why for the past 11 years, the trainers and owners of millions of horses have trusted Strongid C 2X to prevent and control parasites every day. [(emphasis added).]
The label for Strongid C listed in both English and Latin the four specific types of parasites the drug would treat:
For control of the following parasites in horses:
Large Strongyles (adults): S. vulgaris, S. edentatus
Small Strongyles (adults and 4th-stage larvae): Cyathostomum spp., Cylicocyclus spp., Cylicostephanus spp., Cylicodontophorus spp., Poteriostomum spp., Triodontophorus spp.
Pinworms (adults and 4th-stage larvae): Oxyuris equi
Ascarids (adults and 4th-stage larvae): ...