Health Law Daily Wrap Up, VETERINARY DRUGS—S.D. Cal.: Horse ointment users’ reproductive injury claims survive motion to strike fraud allegations and request for definite statement, (May 15, 2026)

By Pankhuri Bhatnagar, B.A. LL.B.

The complaint provided sufficient notice of the users’ claims despite grouping allegations against the remaining manufacturer and a dismissed co-defendant.

In a suit brought against the manufacturer of an antibacterial ointment for horses by four equestrians who alleged that exposure to the ointment caused their reproductive injuries, a federal district court in California denied the manufacturer’s motion to dismiss their purported “fraud-based claims” for lack of particularity and its motion for a more definite statement. The dismissal motion was denied because the complaint asserted negligence and strict liability claims, the fraudulent concealment allegations were only pleaded to invoke equitable tolling, and Rule 12(b)(6) permits dismissal of claims rather than isolated allegations (Pitzen v. Atlantic Animal Health, Inc., No. 25-cv-0196 (S.D. Cal. May 11, 2026)).

Background. Four women brought suit against Neogen Corporation (Neogen or manufacturer) and Atlantic Animal Health, Inc. d/b/a Squire Laboratories, Inc. (Squire) for developing, manufacturing, marketing, and distributing Fura-Zone—a topical antibacterial ointment used to treat wounds and joint conditions in horses. Its active ingredient is nitrofurazone (NFZ), an antimicrobial agent which is included as a reproductive toxicant in California’s Proposition 65 list. The women were horse owners or groomers who routinely handled the product from childhood or adolescence through adulthood and later developed infertility and other reproductive disorders. They pointed out that NFZ has been linked to mammary and ovarian tumors in animal studies since the 1960s, is known to accelerate cancer progress by spurring cell proliferation, and its topical use has been banned on food-producing animals due to carcinogenic residue found in their milk and tissue. Although Fura-Zone was only intended to be used on horses, equestrians commonly mixed it with dimethyl sulfoxide (DMSO), which enhances skin absorption and increased their exposure to the toxic compound. The complaint asserted that Neogen marketed Fura-Zone without adequate warnings about safe handling or wearing protective equipment, and the women did not suspect it to be the source of their injuries until June 2024, when one claimant posted on Facebook asking whether other women who worked with horses had experienced similar reproductive problems after using the product. Squire was voluntarily dismissed from the suit. Neogen moved to dismiss their fraud-based claims and alternatively sought a more definite statement.

Dismissal motion. The manufacturer argued that allegations concerning fraudulent concealment failed to satisfy Federal Rule of Civil Procedure 9(b), which requires fraud to be pleaded with particularity. It added that the court’s earlier order had already held that the fraud allegations must be dismissed and the second amended complaint failed to rectify those deficiencies. The court rejected the premise of the motion and explained that the claimants did not assert any fraud claims. Rather, they asserted negligence and strict liability claims under a failure-to-warn theory and alleged fraudulent concealment as a tolling theory to avoid a statute-of-limitations defense. The prior ruling merely held that the first complaint did not adequately plead fraudulent concealment as a basis for tolling.

Neogen requested the court to dismiss all allegations related to concealment for lack of particularity. But Rule 12(b)(6) authorizes dismissal of claims, not isolated factual allegations. Where a complaint contains allegations of fraud embedded within non-fraud claims, the proper course is to disregard any inadequately pleaded fraud allegations and determine whether the remaining allegations state a claim per Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1104-05 (9th Cir. 2003). Moreover, tolling questions are generally ill-suited for resolution at the pleading stage because they often depend on matters outside the pleadings per Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995). The users could pursue their substantive claims without proving fraudulent concealment or intentional misrepresentation. Accordingly, Neogen’s request to dismiss the fraud-based facts was declined.

Definitiveness. The manufacturer alternatively sought a more definite statement under Rule 12(e), arguing that the complaint impermissibly lumped together Neogen and Squire even though Squire had been voluntarily dismissed. Rule 12(e) applies only when a pleading is so vague or ambiguous that a party cannot reasonably prepare a response or ascertain the claims being raised per Adobe Sys. Inc. v. A & S Elecs., Inc., 153 F. Supp. 3d 1136, 1147 (N.D. Cal. 2015). Such motions are disfavored and attack unintelligibility rather than lack of detail. The court found that the complaint was sufficiently clear. It plainly alleged that both companies participated in the development, manufacture, testing, marketing, and sale of Fura-Zone. Group pleading is permissible when defendants are alleged to have engaged in the same conduct and the complaint still provides fair notice of the claims per United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1184 (9th Cir. 2016). References to Squire did not need to be removed simply because it was no longer a party. Allegations involving dismissed defendants may remain as factual background when they help explain the events underlying the dispute per United Food & Com. Workers v. SDC Inv., Inc., 631 F. Supp. 1001, 1012 n.6 (E.D. Cal. 1986). The court also remarked that the manufacturer’s own “two cogent motions to dismiss” undermined its claim that the complaint was too vague for it to answer. Finding that the complaint adequately notified the manufacturer of the factual basis for the claims, the court denied the second motion as well.

The case is No. 25-cv-196-ABJ-DEB.

Judge: Battaglia, A.

Attorneys: Ashlea G. Schwarz (Paul LLP) for Joanna Pitzen. Hector James Montalvo (Montalvo Law, P.A.) for Atlantic Animal Health, Inc.

Companies: Atlantic Animal Health, Inc.

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