Case Involving Thousands of Dead Cattle Goes Forward.

 The plaintiffs operate commercial cattle operations and bought vaccines that were designed and manufactured by the defendant.  After vaccinating their cattle, the cattle suffered symptoms of endotoxemia which lead to the  death of several thousand cattle and the reduced performance of the balance.  The plaintiffs sued in state court for breach of contract warranties, negligent design and manufacture, failure to warn, failure to comply with the Viruses, Serums, Toxins, and anti-Toxins Act (VSTAA) and unfair and deceptive trade practices.  The defendant removed the case to federal court and motioned for dismissal.  The defendant claimed that the plaintiffs’ claims were preempted by regulations of Animal and Plant Health Inspection Service (APHIS) (the regulatory body that tested the vaccines).  The court disagreed, noting that the VSTAA does not contain any express attempt to preempt state law, and that the U.S. Supreme Court’s decision in Wyeth v. Levine, 555 U.S. 555 (2009) which held that a government agency’s intent to preempt is insufficient.  The plaintiff failed to engage in any Wyeth analysis and the court denied the plaintiff’s motion to dismiss.  The court also refused to dismiss the plaintiff’s failure to comply claim and held that the negligence and unfair and deceptive trade practices claims should likewise go forward.  The court extended the discovery deadline.  Franklin Livestock, Inc., et al. v. Boehringer Ingelheim Vetmedica, Inc., No. 5:15-CV-63-BO, 2015 U.S. Dist. LEXIS 80440 (E.D. N.C. Jun. 22, 2015). 

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