Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 1 of 18

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1 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 1 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI GREENVILLE DIVISION NEAL HALEY AND SHERRY HALEY, ET AL VS. MERIAL LIMITED, MERIAL LLC, AND MERIAL, INC. PLAINTIFFS CIVIL ACTION NO. 4:09-CV-094-P-S DEFENDANTS MERIAL LLC S (MERIAL LIMITED) ANSWER AND DEFENSES TO PLAINTIFFS AMENDED COMPLAINT COMES NOW Merial LLC/Merial Limited, (referred to as Merial hereinafter), incorrectly identified in the plaintiffs Amended Complaint as separate legal entities, through its counsel and pursuant to the Federal Rules of Civil Procedure, and responds to the plaintiffs Amended Complaint as follows: INTRODUCTORY STATEMENT Merial Limited and Merial LLC are the same entity. Merial Limited is a company limited by shares registered in England and Wales (registered number ) with a registered office at P.O. Box 327, Sandringham House, Sandringham Avenue, Harlow Business Park, Harlow, Essex CM19 5QA, England, and domesticated in Delaware, as Merial LLC, and having a place of business at 3239 Satellite Boulevard, Bldg. 500, Duluth, Georgia USA. FIRST DEFENSE The plaintiffs Amended Complaint fails to state a claim against Merial upon which relief can be granted in whole or in part.

2 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 2 of 18 SECOND DEFENSE ANSWER Subject to the above listed defense, Merial responds to the allegations of the plaintiffs Amended Complaint, paragraph by paragraph as follows: 1. Merial denies that the plaintiffs satisfy the requirements of Fed. R. Civ. P. 23 and denies that the plaintiffs can assert any claims on behalf of the proposed plaintiff class. Merial is without sufficient knowledge or information to form a belief about the truth of the remaining allegations contained in Paragraph Merial admits the allegations contained in Paragraph Merial admits the allegations contained in Paragraph 3. By way of further information, Merial LLC is the domesticated counterpart of Merial Limited and is domesticated in the State of Delaware pursuant to Del. Code Ann. tit and Merial LLC s principal place of business is located in the State of Georgia. 4. Merial admits that Merial, Inc. is a corporation existing under the laws of the State of Georgia with its principal place of business in Georgia. Merial denies the remaining allegations contained in Paragraph Denied as stated. Merial does not contest that this Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C and 1332(d) based on the plaintiffs allegations pursuant to 18 U.S.C. 1961, et seq., and on the plaintiffs allegation that they seek in excess of $5,000, exclusive of interest and costs. Merial denies the remaining allegation contained in Paragraph Merial denies that it engaged in any improper conduct in the Northern District of Mississippi at any time relevant to plaintiffs Amended Complaint and, therefore, denies the allegations contained in Paragraph 6. 2

3 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 3 of Denied as stated. Merial admits that it is in the animal health business globally, and that it markets and sells a product known as HEARTGARD Plus (ivermectin/pyrantel) as a heartworm preventive. Merial denies that Merial, Inc. is involved in the production, sale, or marketing of any of the HEARTGARD Brand Products and that Merial, Inc. has any connection to the claims asserted by the plaintiffs. Merial denies any remaining allegations contained in Paragraph Merial admits that HEARTGARD Plus is a beef flavored chewable containing the active ingredients ivermectin and pyrantel, and admits that it has been approved by the Federal Food and Drug Administration ( FDA ) to be marketed in accordance with its FDA-approved labeling, which speaks for itself. Merial denies any remaining allegations contained in Paragraph Merial admits that HEARTGARD Plus was marketed using language to the effect that it was 100% effective against heartworms following its approval as a heartworm preventive by the FDA and based upon numerous efficacy studies demonstrating 100% efficacy when used according to label directions. Merial denies that it made any false or fraudulent claims regarding the HEARTGARD Brand Products and further denies the remaining allegations contained in Paragraph Upon information and belief, Merial admits only that the FDA reviewed certain promotional materials related to the HEARTGARD Brand Products. Merial denies that the FDA found as a fact that the claims of 100% effectiveness were false and misleading, causing the drugs to be misbranded under the act, and, therefore, denies the remaining allegations contained in Paragraph 10, including the allegations contained in footnote 1. 3

4 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 4 of Merial admits that the FDA s Center for Veterinary Medicine ( CVM ) sent Merial a letter dated January 2, 2002, directed to Rosalind S. Dunn but states that the letter speaks for itself. Footnote 2 contains no allegations to which a response is required. However, to the extent a response is required, Merial admits only that the plaintiffs have incorporated by reference into their Amended Complaint [Doc. 81] the exhibits attached to the plaintiffs original Complaint [Doc. 1]. Merial denies any remaining allegations contained in Paragraph 11, including any allegations contained in footnote Merial admits that the FDA s CVM sent Merial a letter dated October 9, 2002, directed to Rosalind S. Dunn but states that the letter speaks for itself. Merial denies any remaining allegations contained in Paragraph Denied as stated and particularly with regard to the false and malicious allegation set forth in the first sentence of Paragraph 13. Merial admits that it disseminated the promotional piece titled HeartGard Plus Provides 100% Protection Against Heartworm Disease attached as Exhibit 3 to the plaintiffs original Complaint [Doc. 1] but states that the promotional piece speaks for itself. Merial is without sufficient knowledge or information to form a belief about the truth of any remaining allegations contained in Paragraph Merial admits that the FDA s CVM sent a letter dated January 12, 2004 to Merial but states that the letter speaks for itself. Merial also admits that the January 12, 2004 letter is related to IVOMEC Pour-On for Cattle and admits that IVOMEC and HEARTGARD Plus share ivermectin as an active ingredient. By way of further response, Merial states that IVOMEC is an FDA-approved product indicated to control numerous cattle-related parasites; however, it is wholly unrelated to the prevention of heartworm disease in dogs or any 4

5 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 5 of 18 HEARTGARD Brand Product for that matter. Merial denies any remaining allegations contained in Paragraph Merial admits that the FDA s CVM sent Merial a letter dated August 24, 2005, directed to Liubov Skibo but states that the letter speak for itself. Merial denies the plaintiffs allegation that they do not have a copy of the August 24, 2005 letter from the FDA to Merial; a copy of same was attached as Exhibit A to Merial LLC s (Merial Limited) Answer and Defenses to Plaintiffs Complaint [Doc. 11]. Merial denies that it engaged in any fraudulent activities and, therefore, denies any remaining allegations contained in Paragraph 15, including the allegations contained in footnote Merial admits that the FDA s CVM sent Merial a letter dated August 14, 2006, and admits that it sent letters to FDA s CVM dated September 30, 2005, and May 5, 2006, but states that all such letters speak for themselves. Merial denies any remaining allegations contained in Paragraph Merial admits only that the FDA s CVM sent Merial a letter dated August 14, 2006, directed to Merial s Liubov Skibo, but states that the letter speaks for itself. Merial denies any remaining allegations contained in Paragraph Merial admits only that the FDA s CVM sent Merial a letter dated August 14, 2006, directed to Merial s Liubov Skibo, but states that the letter speaks for itself. Merial denies any remaining allegations contained in Paragraph 18, including subparts (a), (b), (c), and (d). 19. Merial denies that it ever received the letter attached as Exhibit 6 to the plaintiffs original Complaint [Doc. 1], and denies that any of the websites referenced in such letter were maintained, created, or in any way associated with Merial. By way of further response, Merial is not associated in any way with George Luntz or any business known as Native Remedies. 5

6 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 6 of 18 Merial is without sufficient knowledge or information to form a belief about the truth of the allegations contained in Paragraph Merial admits that, at the FDA s request, it voluntarily agreed to remove certain language from promotional material regarding the 100% efficacy of the HEARTGARD Brand Products. Merial denies the remaining allegations contained in Paragraph Merial denies the allegations contained in the first sentence of Paragraph 21 and specifically denies that it engaged in any fraudulent advertising and that any of the websites referenced in Paragraph 21 are in any way associated with Merial. Merial is without sufficient knowledge or information to form a belief about the truth of the remaining allegations contained in Paragraph Merial denies the allegations contained in Paragraph 22 and specifically denies that it made any false or fraudulent claims regarding the HEARTGARD Brand Products, that it supplied any other persons with information to advertise or promote the HEARTGARD Brand Products, and that any of the websites referenced in Paragraph 22 are in any way associated with Merial. 23. Merial admits that it produced the promotional piece titled Protect Your Pet Against Dangerous Internal Parasites, attached to the plaintiffs original Complaint [Doc. 1] as Exhibit 20, but states that the promotional piece speaks for itself. Merial denies that it engaged in any fraudulent activity related to the HEARTGARD Brand Products and, therefore, denies the remaining allegations contained in Paragraph Merial admits that the FDA s CVM sent Merial a letter dated June 21, 2007, directed to Liubov Skibo but states that the letter speaks for itself. Merial denies any remaining allegations contained in Paragraph 24. 6

7 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 7 of Merial denies that it furnished or continues to furnish veterinarians and other pet care professionals with these false promotional materials. Merial is without sufficient knowledge or information to form a belief about the truth of the allegations contained in Paragraph 25 that [these promotional materials] remain on display in veterinarians[ ] offices for consumers to review to this day. Merial denies any remaining allegations contained in Paragraph Upon information obtained through discovery, Merial denies the allegation that in February 2006 HEARTGARD Plus was more expensive than the previous medication [Interceptor]. Upon information obtained through discovery, Merial does not contest that a heartworm test administered to Mack in August 2006 was negative. Merial is without sufficient knowledge or information to form a belief about the truth of the remaining allegations contained in Paragraph Upon information obtained through discovery, Merial denies the allegations contained in the second sentence of Paragraph 27. Merial is without sufficient knowledge or information to form a belief about the truth of the remaining allegations contained in Paragraph Upon information obtained through discovery, Merial denies the allegations contained in the first sentence of Paragraph 28. Merial is without sufficient knowledge or information to form a belief about the truth of the remaining allegations contained in Paragraph Merial is without sufficient knowledge or information to form a belief about the truth of the allegations contained in Paragraph 29. 7

8 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 8 of Merial is without sufficient knowledge or information to form a belief about the truth of the allegations contained in Paragraph Upon information obtained through discovery, Merial denies the allegations contained in the first and last sentences of Paragraph 31. Merial is without sufficient knowledge or information to form a belief about the truth of the allegations contained in Paragraph Merial is without sufficient knowledge or information to form a belief about the truth of the allegations contained in Paragraph Merial is without sufficient knowledge or information to form a belief about the truth of the allegations contained in Paragraph Upon information obtained through discovery, Merial denies the allegations contained in Paragraph Merial is without sufficient knowledge or information to form a belief about the truth of the allegations contained in Paragraph Merial is without sufficient knowledge or information to form a belief about the truth of the allegations contained in Paragraph Merial is without sufficient knowledge or information to form a belief about the truth of the allegations contained in Paragraph Merial is without sufficient knowledge or information to form a belief about the truth of the allegations contained in Paragraph Merial denies that it made any false or fraudulent claims regarding the HEARTGARD Brand Products, denies that plaintiff Clayton Davis had his dogs on a strict regimen of HEARTGARD Plus in accordance with its FDA-approved labeling and, therefore, denies all allegations contained in Paragraph 39. 8

9 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 9 of Merial objects to Paragraph 40 of the Amended Complaint to the extent it calls for Court. However, to the extent a response is required, Merial denies the allegations contained in Paragraph Merial objects to Paragraph 41 of the Amended Complaint to the extent it calls for Court. However, to the extent a response is required, Merial denies the allegations contained in Paragraph Merial objects to Paragraph 42 of the Amended Complaint to the extent it calls for Court. However, to the extent a response is required, Merial denies the allegations contained in Paragraph Merial objects to Paragraph 43 of the Amended Complaint to the extent it calls for Court. However, to the extent a response is required, Merial denies the allegations contained in Paragraph 43 and specifically denies that it had any relationship with the online distributors listed in Paragraph 43 of the Amended Complaint. 44. Merial denies that it engaged in or conspired to engage in any conduct to defraud veterinarians, pet care professionals, American pet owners, or the plaintiffs. Merial is without sufficient knowledge or information to form a belief about the truth of any remaining allegations contained in Paragraph Merial denies that it engaged in or conspired to engage in any conduct to defraud veterinarians, pet care professionals, American pet owners, or the plaintiffs. Merial is without 9

10 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 10 of 18 sufficient knowledge or information to form a belief about the truth of any remaining allegations contained in Paragraph 45, including the allegations contained in footnote Merial objects to Paragraph 46 of the Amended Complaint to the extent it calls for Court. However, to the extent a response is required, Merial denies that it engaged in any scheme to defraud veterinarians, pet care professionals, American consumers, or the plaintiffs and, therefore, denies all allegations contained in Paragraph Merial objects to Paragraph 47 of the Amended Complaint to the extent it calls for Court. However, to the extent a response is required, Merial denies that it disseminated false and misleading information to veterinarians, denies that it engaged in any fraudulent activity and, therefore, denies all allegations contained in Paragraph Merial objects to Paragraph 48 of the Amended Complaint to the extent it calls for Court. However, to the extent a response is required, Merial denies that any of its HEARTGARD Brand Products were advertised in a false or misleading manner, denies that it had any relationship with the online distributors referenced in Paragraph 48 of the Amended Complaint and, therefore, denies the allegations contained in Paragraph 48. By way of further response, Merial states that all HEARTGARD Brand Products are available by prescription only and, therefore, Merial does not sell the products to any online distributors. 49. Merial objects to Paragraph 49 of the Amended Complaint including all subparts (a), (b), (c), (d), and (e), to the extent it calls for a legal conclusion to which no response is required. Merial refers all questions of law to the Court. However, to the extent a response is 10

11 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 11 of 18 required, Merial denies that it committed any acts in violation of 18 U.S.C. 1961, et seq. Merial specifically denies that it made any false, fraudulent or misleading representations with respect to any of the HEARTGARD Brand Products, denies that it engaged in a scheme to defraud and, therefore, denies the allegations contained in Paragraph 49, including all subparts (a) through (e). 50. Merial denies that it committed any wrongful act in violation of RICO, denies that it disseminated false and misleading advertisements and promotional materials and, therefore, denies all of the allegations contained in Paragraph Merial objects to Paragraph 51 of the Amended Complaint to the extent it calls for Court. However, to the extent a response is required, Merial denies that it committed any acts in violation of 18 U.S.C. 1962(a) and, therefore, denies all allegations contained in Paragraph Merial objects to Paragraph 52 of the Amended Complaint to the extent it calls for Court. However, to the extent a response is required, Merial denies that it committed any acts in violation of 18 U.S.C. 1962(b) and, therefore, denies all allegations contained in Paragraph Merial objects to Paragraph 53 of the Amended Complaint to the extent it calls for Court. However, to the extent a response is required, Merial denies that it committed any acts in violation of 18 U.S.C. 1962(c) and, therefore, denies all allegations contained in Paragraph Merial objects to Paragraph 54 of the Amended Complaint to the extent it calls for Court. However, to the extent a response is required, Merial denies that it committed any acts in violation of 18 U.S.C. 1962(d) and, therefore, denies all allegations contained in Paragraph

12 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 12 of Merial objects to Paragraph 55 of the Amended Complaint to the extent it calls for Court. However, to the extent a response is required, Merial denies the allegations contained in Paragraph Merial denies the allegations contained in Paragraph Merial denies the allegations contained in Paragraph Merial denies the allegations contained in Paragraph 58 and expressly states that the plaintiffs and their claims do not satisfy the requirements of Fed. R. Civ. P. 23(a)-(b). 59. Merial objects to Paragraph 59 of the Amended Complaint to the extent it calls for Court. However, to the extent a response is required, Merial denies the allegations contained in Paragraph 59 and expressly states that the plaintiffs and their claims do not satisfy the requirements of Fed. R. Civ. P. 23(a)-(b) and that creating issue classes or subclasses pursuant to Fed. R. Civ. P. 23(c) will not cure the Fed. R. Civ. P. 23(a)-(b) deficiencies. Alternatively, to the extent that this Court determines the plaintiffs and their claims satisfy the requirements of Fed. R. Civ. P. 23(a)-(b), Merial admits that subclassing will be necessary but denies that only one subclass will be sufficient. 60. Merial denies the allegations contained in Paragraph 60 and expressly states that the plaintiffs and their claims do not satisfy the requirements of Fed. R. Civ. P. 23(a)-(b) and that creating issue classes or subclasses pursuant to Fed. R. Civ. P. 23(c) will not cure the Fed. R. Civ. P. 23(a)-(b) deficiencies. 61. Merial denies the allegations contained in Paragraph 61 and expressly states that the plaintiffs and their claims do not satisfy the requirements of Fed. R. Civ. P. 23(a)-(b) and that 12

13 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 13 of 18 creating issues classes or subclasses pursuant to Fed. R. Civ. P. 23(c) will not cure the Fed. R. Civ. P. 23(a)-(b) deficiencies. 62. Merial denies the allegations contained in Paragraph 62 and expressly states that the plaintiffs and their claims do not satisfy the requirements of Fed. R. Civ. P. 23(a)-(b) and that creating issue classes or subclasses pursuant to Fed. R. Civ. P. 23(c) will not cure the Fed. R. Civ. P. 23(a)-(b) deficiencies. Alternatively, to the extent that this Court determines the plaintiffs and their claims satisfy the requirements of Fed. R. Civ. P. 23(a)-(b), Merial admits that the individuals and entities listed in Paragraph 62 should be excluded from any class or subclass. 63. Merial denies the allegations contained in Paragraph 63 and expressly states that the plaintiffs and their claims do not satisfy the requirements of Fed. R. Civ. P. 23(a)-(b) and that creating issue classes or subclasses pursuant to Fed. R. Civ. P. 23(c) will not cure the Fed. R. Civ. P. 23(a)-(b) deficiencies. 64. Merial is without sufficient knowledge or information to form a belief about the allegations contained in the second sentence of Paragraph 64. Merial denies the remaining allegations contained in Paragraph 64 and expressly states that the plaintiffs and their claims do not satisfy the requirements of Fed. R. Civ. P. 23(a)-(b) and that creating issue classes or subclasses pursuant to Fed. R. Civ. P. 23(c) will not cure the Fed. R. Civ. P. 23(a)-(b) deficiencies. 65. Merial denies the allegations contained in Paragraph 65, including subparts (a) and (b), and expressly states that the plaintiffs and their claims do not satisfy the requirements of Fed. R. Civ. P. 23(a)-(b) and that creating issue classes or subclasses pursuant to Fed. R. Civ. P. 23(c) will not cure the Fed. R. Civ. P. 23(a)-(b) deficiencies. 13

14 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 14 of Merial denies the allegations contained in Paragraph 66 and expressly states that the plaintiffs and their claims do not satisfy the requirements of Fed. R. Civ. P. 23(a)-(b) and that creating issue classes or subclasses pursuant to Fed. R. Civ. P. 23(c) will not cure the Fed. R. Civ. P. 23(a)-(b) deficiencies. 67. Merial denies the allegations contained in Paragraph 67, including all subparts (a), (b), (c), and (d), and expressly states that the plaintiffs and their claims do not satisfy the requirements of Fed. R. Civ. P. 23(a)-(b), that creating issue classes or subclasses pursuant to Fed. R. Civ. P. 23(c) will not cure the Fed. R. Civ. P. 23(a)-(b) deficiencies, and that the common legal and factual issues, if any, do not predominate over the individual legal and factual issues. 68. Merial denies the allegations contained in the unnumbered paragraph that appears after Paragraph 67 and begins with the word WHEREFORE and ends with the word circumstances, including subparts 1., 2., 3., 4., 5., 6., and 7. THIRD DEFENSE The plaintiffs claims against Merial may be prescribed or otherwise barred in whole or in part by applicable statutes of limitation. FOURTH DEFENSE Merial affirmatively pleads Mississippi Code Ann for an allocation of fault, if any, to all individuals or entities whose acts or omissions may have contributed to cause the incidents described in the Amended Complaint and/or the plaintiffs alleged injuries, whether the same be parties or non-parties. To the extent the plaintiffs own acts or omissions caused or contributed to the circumstances and injuries alleged in the Amended Complaint, Merial invokes the provisions of Miss. Code Ann

15 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 15 of 18 FIFTH DEFENSE The injuries and damages allegedly suffered by the plaintiffs in this action, if any, were not proximately caused by the use of the HEARTGARD Brand Products or by any acts or omissions on the part of Merial. SIXTH DEFENSE The injuries and damages allegedly suffered by the plaintiffs in this action, if any, were not proximately caused by the use of the HEARTGARD Brand Products or by any acts or omissions on the part of Merial. SEVENTH DEFENSE The plaintiffs claims against Merial should be dismissed or, alternatively, the claims for alleged damages should be reduced for any failures by the plaintiffs in the proper administration of the HEARTGARD Brand Products in accordance with its specific labeled directions and instructions. EIGHTH DEFENSE The plaintiffs have failed to comply with Rule 9(b) of the Federal Rules of Civil Procedure, as certain matters have not been pled with the requisite particularity. Accordingly, they are barred from recovering any such damages. NINTH DEFENSE Some or all of the plaintiffs claims are barred due to preemption by federal law, including federal statutes and regulations. 15

16 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 16 of 18 TENTH DEFENSE The plaintiffs claims are barred, in whole or in part, because the advertisements with respect to HEARTGARD Brand Products were not false or misleading and, therefore, constitute protected commercial speech under the applicable provisions of the United States Constitution. ELEVENTH DEFENSE The plaintiffs claims for punitive damages are barred by Miss. Code Ann (1972), requiring that any suit for penalty be brought within one year from the date of the alleged offense. TWELFTH DEFENSE Merial affirmatively pleads all rights and defenses provided by Miss. Code Ann with respect to plaintiffs claim for punitive damages. THIRTEENTH DEFENSE Any award of punitive damages against Merial in this action would violate the constitutional rights of Merial under the United States Constitution and the Mississippi Constitution in at least the following respects: (a) (b) (c) (d) It would violate Merial s right to procedural due process under the Fourteenth Amendment of the United States Constitution and due process under Section Fourteen of the Mississippi Constitution; It would violate Merial s right to substantive due process under the Fifth and Fourteenth Amendments to the United States Constitution and under Section Fourteen of the Mississippi Constitution; It would violate federal and state due process unless the plaintiffs are required to prove every element of their claim for punitive damages beyond a reasonable doubt; Mississippi laws on punitive damages are unconstitutionally vague, not rationally related to any legitimate governmental interest, and establish no consistent, recognizable, or rational standard for submitting punitive damage issues to a jury or for appellate review; 16

17 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 17 of 18 (e) (f) (g) (h) (i) (j) It would violate Merial s right not to be subjected to an excessive award in violation of the Eighth Amendment to the United States Constitution and Section Twenty-Eight of the Mississippi Constitution; It would violate the prohibitions of the United States Constitution and the Mississippi Constitution on ex post facto laws; It would violate the right of Merial to equal protection under the law as guaranteed by the United States Constitution and the Mississippi Constitution; Being in the nature of a penal or criminal sanction, any award of punitive damages that does not provide Merial with the procedural and substantive safeguards applicable to criminal proceedings and would violate the United States Constitution and the Mississippi Constitution; Merial affirmatively pleads all rights and defenses provided by BMW of North America. Inc. v. Gore, 517 U.S. 559 (1996), and its progeny with respect to any claim the plaintiffs make for punitive damages, including, but not limited to, the prohibition against awarding punitive damages for alleged conduct of Merial outside the State of Mississippi; and Merial affirmatively pleads all rights and defenses provided by State Farm Mutual Automobile Insurance Co., v. Campbell, 538 U.S. 408 (2003), and its progeny. WHEREFORE, PREMISES CONSIDERED, Merial requests that the Court dismiss all claims against it with prejudice and provide Merial with such other relief to which it may be entitled. Respectfully submitted, this the 9th day of August, /s/:michael E. McWilliams Lee Davis Thames (MB #8061) Michael E. McWilliams (MB #8733) Kyle V. Miller (MB #102227) COUNSEL FOR MERIAL 17

18 Case 4:09-cv WAP-DAS Document 90 Filed 08/09/10 Page 18 of 18 OF COUNSEL: Lee Davis Thames (MB #8061) Michael E. McWilliams (MB #8733) Kyle V. Miller (MB #102227) Butler, Snow, O Mara, Stevens & Cannada, PLLC 1020 Highland Colony Parkway, Suite 1400 P.O. Box 6010 Ridgeland, MS Tel: Fax: CERTIFICATE OF SERVICE I, Michael E. McWilliams, one of the attorneys for Merial, do hereby certify that I have this day filed with the Court s ECF system a true and correct copy of the foregoing instrument and that a copy of same will be electronically delivered to the following: C. W. Walker, III, Esq. Heath S. Douglas, Esq. Lake Tindall, LLP 127 South Poplar Street P.O. Box 918 Greenville, MS Lawrence E. Abernathy, III, Esq. 420 North Sixth Avenue Laurel, MS SO CERTIFIED this the 9th day of August, /s/:michael E. McWilliams Michael E. McWilliams Jackson v1 18