                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0467n.06

                                        Case No. 18-3813

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


JANE MILLER, on behalf of herself and all           )                        FILED
others similarly situated,                          )                  Sep 04, 2019
                                                    )              DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,
                                                    )
                                                    )
v.
                                                    )
                                                    )       ON APPEAL FROM THE UNITED
KENT NUTRITION GROUP, INC.; GRAIN
                                                    )       STATES DISTRICT COURT FOR
PROCESSING CORPORATION; NSF
                                                    )       THE NORTHERN DISTRICT OF
INTERNATIONAL,
                                                    )       OHIO
       Defendants,                                  )
                                                    )
KENT PET GROUP, INC.,                               )
       Defendant-Appellee.                          )



BEFORE: KETHLEDGE, WHITE, and BUSH, Circuit Judges.

       JOHN K. BUSH, Circuit Judge. Cat litter flushed down the toilet has spilled into our

court. The product at issue bore the brand World’s Best Cat Litter™ (“WBCL”), but Jane Miller

claims it was hardly the pick of the litter. She contends its maker, Kent Pet Group, Inc. (“Kent”),

marketed WBCL as flushable when, in fact, it was not. Miller maintains it clogged her home

sewage system. Though there is little disagreement that Miller experienced sewage backups, she

has produced insufficient evidence for a reasonable jury to find that Kent made any false

representation in marketing WBCL as flushable. We therefore AFFIRM the district court’s grant

of summary judgment in favor of Kent.
Case No. 18-3813, Miller v. Kent


       In the background of this fight purrs a cat named Toby, adopted by Miller in 2005. Toby’s

preference for WBCL dates back to a previous owner, who purchased it for the cat. Miller also

preferred the product because it was marketed as “flushable” and “septic and sewer safe.” Miller

alleges that she relied on Kent’s marketing to use and flush WBCL for many years. After almost

a decade with WBCL, Toby would do business with no other brand, so Miller was stuck with

buying it.

        For many years Kent’s marketing claims regarding WBCL were substantiated by only

Kent’s own internal testing procedures. In 2006 Kent bolstered its boasts with findings of a third-

party laboratory that WBCL was indeed flushable as well as biodegradable. However, in 2011 a

competitor cast doubts on Kent’s claims, prompting the Federal Trade Commission to determine

that WBCL may not have been the cat’s meow that Kent claimed it was. So, Kent removed

labelling from the package that proclaimed WBCL to be “flushable” and committed to more

rigorous product testing. When this testing concluded in 2014, Kent resumed marketing WBCL

as flushable, although it was no longer advertised as biodegradable.

       That same year, Miller’s concerns with WBCL began. After she experienced a clog and

backup of sewage into her home, Miller stopped flushing WBCL, hoping that would fix the

problem. But an unmaintained sewage system, unlike a mythical cat, does not have nine lives. A

year after the first incident, Miller experienced another sewage backup, worse than the first, and

this time her plumber discovered that her drains were seriously clogged with cat waste and litter.

       In September 2015 the cat’s owner brought her claims in Ohio state court, and Kent

dragged them into federal court through removal. Miller alleged common law claims of breach of

implied warranty, unjust enrichment, and negligent misrepresentation as well as a claim under

Iowa’s consumer fraud statute. Kent is located in Iowa, and the district court held that Miller had




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Case No. 18-3813, Miller v. Kent


standing under Iowa’s consumer fraud statute, which holding neither party disputes on appeal.

The district court dismissed the common law claims, leaving only the Iowa statutory count. In

support of this cause of action, Miller asserts that Kent’s misleading representations about

flushability not only led to the damage to her plumbing, but also caused her to pay a higher price

for the litter than she would have paid otherwise. The district court granted summary judgment to

Kent as to the statutory claim, which is the only issue in this appeal.

       The relevant statutory provision, Iowa Code § 714H, allows consumers a private right of

action for damages in certain circumstances:

       A consumer who suffers an ascertainable loss of money or property as the result of
       a prohibited practice or act in violation of this chapter may bring an action at law
       to recover actual damages. The court may order such equitable relief as it deems
       necessary to protect the public from further violations, including temporary and
       permanent injunctive relief.

Iowa Code § 714H.5(1). A “prohibited practice” is defined as

       an unfair practice, deception, fraud, false pretense, or false promise, or the
       misrepresentation, concealment, suppression, or omission of a material fact, with
       the intent that others rely upon the unfair practice, deception, fraud, false pretense,
       false promise, misrepresentation, concealment, suppression, or omission in
       connection with the advertisement, sale, or lease of consumer merchandise, or the
       solicitation of contributions for charitable purposes.

Id. § 714H.3(1).

       The parties disagree over the statutory elements, but the district court focused on only one,

causation, which that court found to be “naturally read” from the words “as the result of” appearing

in the statute. R. 73, PageID 3509 (quoting Brown v. La.-Pac. Corp., 820 F.3d 339, 348–49 (8th

Cir. 2016)). The district court explained that Iowa courts use a but-for test of causality that has a

negative element: “[i]f the plaintiff would have suffered the same harm had the defendant not acted

negligently, the defendant’s conduct is not a cause in fact of the harm.” Id. (quoting Garr v. City

of Ottumwa, 846 N.W.2d 865, 869 (Iowa 2014)). According to the court, this requirement meant



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Case No. 18-3813, Miller v. Kent


that if Miller would have purchased WBCL even without Kent’s alleged misrepresentations, Miller

could not prove causality.

       The district court determined that there was at least one other reason, besides Kent’s

marketing, that inspired Miller to purchase WBCL—namely, Toby the cat. The feline was finicky,

and no brand but WBCL would do. Additionally, the court found that Miller’s sewage system

would have clogged even without Kent’s allegedly false claims because the sewage system needed

repairs. Therefore, the court found as a matter of law that, even though “World’s Best could have

contributed to the clogs in the septic system[,] . . . World’s Best was not the cause of the clogs.”

R. 73, PageID 3511. The district court, having found that Miller could not prove that WBCL had

caused her harm, granted Kent’s motion for summary judgment and denied Kent’s motions to

exclude as moot.

       Although the district court focused on causation, we may affirm “on any grounds supported

by the record even if different from the reasons of the district court.” Dixon v. Clem, 492 F.3d

665, 673 (6th Cir. 2007) (internal quotation marks omitted). It is not clear under Iowa law whether

the district court is correct that Toby’s preference for WBCL and the independent problems with

the sewage system required summary judgment for Kent on causation, given that the Iowa

Supreme Court has adopted the causal requirements of Restatement (Third) of Torts, see State v.

Tyler, 873 N.W.2d 741, 749 (Iowa 2016). Section 27 of this Restatement recognizes that there

may be several legal causes of a harm, see Restatement (Third) of Torts § 27 (Am. Law Inst. 2010).

Applying § 27, the Iowa Supreme Court has recognized that the but-for test

       operates to identify factual causation in each instance, but requires further
       assistance when multiple acts occur, each of which alone would have been a factual
       cause in the absence of the other act or acts. This assistance now comes in the form
       of a legal principle to govern the outcome. When such multiple causes are present,
       our law declares each act to be a factual cause of the harm.




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Case No. 18-3813, Miller v. Kent


State v. Tribble, 790 N.W.2d 121, 127 (Iowa 2010) (citing Restatement (Third) of Torts § 27 at

376).

          However, a deep dive into the causal nature of Miller’s harms is unnecessary to resolve

this appeal. That is because, to prevail, Miller must show as an initial matter that Kent committed

a “prohibited practice or act in violation of this chapter,” Iowa Code § 714H.5(1). The only

conduct of Kent that Miller identifies as falling into this category are Kent’s alleged

misrepresentations that WBCL is flushable, and Kent’s failure to warn that WBCL is flushable

only in well-maintained systems. Therefore, if WBCL is flushable and Kent’s claim is not

misleading, then Kent could not have deceived Miller (or anyone else) under Miller’s theory of

liability.

          Kent cites to its experts’ opinions that WBCL is flushable “under normal usage

conditions.” Appellee Br. at 39; R. 44, PageID 337. In light of this proof, the burden is on Miller

to “come forward with specific facts showing” that there is a triable issue that would allow a

reasonable jury to find that WBCL is not flushable under such typical circumstances. Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations and internal

quotation marks omitted). To meet this burden Miller must present more than a mere “scintilla of

evidence” in support of her position. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986).

          Accordingly, we must consider not only Kent’s expert testimony but also the expert

testimony presented by Miller, and do so in the light most favorable to Miller. See United States

v. Diebold, 369 U.S. 654, 655 (1962) (noting that material in the record must be examined in “the

light most favorable to the party opposing the motion”). The problem for Miller, however, is that

her expert (Drew McAvoy) equivocated. McAvoy never directly opined that WBCL is not




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Case No. 18-3813, Miller v. Kent


flushable. Instead, when asked at his deposition whether he could “say one way or the other . . .

that World’s Best Cat Litter is not flushable and septic safe,” McAvoy only responded that “I

haven’t seen anything that shows that it is.” R. 43-2, PageID 949. McAvoy repeatedly stated that

he simply did not have enough information based on available testing to determine whether WBCL

is flushable or not. And while he agreed with the characterization that “the testing that was done

on [WBCL] was insufficient to establish that [WBCL] can be claimed to be flushable and septic

safe,” id. at PageID 954–55, he also acknowledged that “[t]here’s nothing there that demonstrates

that [WBCL is] not [flushable],” id. at PageID 950. In short, on the central question of whether or

not WBCL is flushable, the cat got the tongue of Miller’s expert.

       In addition to asserting that Kent misrepresented that WBCL is flushable, Miller argues

that Kent was required to “warn purchasers of WBCL not to flush it unless the homeowners know,

for a fact, that there are no latent maintenance issues with their plumbing. Otherwise, the latent

maintenance issues will go from latency to an ugly reality once they use [WBCL].” Appellant Br.

at 11. In short, Miller contends that Kent violated the Iowa statute by selling a product that only

works in certain situations—and not warning consumers about that limitation. Once again,

however, Miller’s own expert undercuts the factual predicate. The evidence Miller produced for

summary judgment tends to show that consumers knew or ought to have known that WBCL works

only in a properly maintained septic system.

       It is undisputed here that Miller actually suffered from back-ups to her sewage system. She

asserts that this means that WBCL is “not flushable in fact.” Appellant Br. at 9. And she maintains

that she “knows that WBCL is not flushable . . . because of the clogs she experienced and the fact

that cat waste and WBCL litter was found in her drains long after she stopped flushing it.” Id. at

10. However, Kent’s expert witnesses explained that “flushability” refers to (and assumes) a




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Case No. 18-3813, Miller v. Kent


working, well-maintained sewage system: “World’s Best Cat Litter would not clog or stick within

a properly functioning residential sewer pipe. . . . [nor] clog or stick within a properly functioning

residential sewage ejector pump, pit, or attached piping.” R. 44-3, PageID 1212. And at his

deposition, McAvoy conceded that without proper maintenance of a septic system, including

“periodic inspection of the drain line by a professional,” an owner could expect reoccurring clogs

in her septic system. R. 43-2, PageID 922–23. Thus, even according to Miller’s own witness,

unless Miller’s septic system was properly maintained, she ran the risk of clogs.

       Miller does not contend that WBCL needed to be flushable under any conditions—that is,

regardless of whether the sewage system is well maintained or not. That would be a difficult

position for her to take, given that no product, except for perhaps a clog-busting solution, would

be flushable in an unmaintained sewage system.

       It is also undisputed that there was a cat’s cradle of issues with Miller’s septic system. In

fact, McAvoy identified an improper three to four feet dip in the run of the drain line, the presence

of tree roots, and corrosion in Miller’s pipe as outstanding issues with Miller’s septic system. Id.

at PageID 919–20. Further, Miller had not engaged in periodic maintenance and, as her expert

conceded, “[o]bviously she needed her drain line cleaned.” Id. at PageID 974. The evidence on

the record thus presents no genuine dispute that Miller did not have a properly maintained home

sewage system.

       Importantly, Miller experienced two incidents of sewage backups. The first was in March

2014, when her toilet clogged and she called a plumber to fix it. After this experience Miller

stopped flushing WBCL, though she continued to buy it for Toby. Then, in April 2015, Miller

experienced another backup, and she again had a plumber clean the system. On this occasion, the

plumber ran a camera through Miller’s sewage lines, and discovered WBCL in them. Miller argues




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Case No. 18-3813, Miller v. Kent


that the fact that there was still WBCL in the lines a year after she stopped flushing the product

shows that it must not be flushable. But it takes little curiosity to kill this argument. The record

clearly shows that the issues with her system predated the first clog, and therefore backups which

occurred after she stopped flushing WBCL (and before she undertook the necessary maintenance)

do not constitute proof that the product is unflushable. This conclusion is buttressed by the fact

that after she accomplished the necessary maintenance, Miller resumed flushing WBCL for a

period of approximately six weeks, during and after which she experienced no issues. R. 43-2,

PageID 924–25.

       Miller properly argues that it is not the place of a court to weigh the evidence before it at

the summary judgment stage. However, Miller has not placed any evidence on the record that a

jury could weigh to properly conclude that WBCL is not flushable. One expert, Kent’s, says that

WBCL is flushable. The other expert, Miller’s, says he is unsure whether WBCL is flushable, and

further that it is flushable only in a properly maintained septic system, which Miller undisputedly

did not have. The only conclusion that a reasonable jury could reach—based on the evidence in

the record at the time of the motion for summary judgment—is that WBCL is a flushable product

in a properly maintained septic system. That WBCL may have been found in the pipes of Miller’s

clogged home sewage system is insufficient to establish a triable issue as to whether Kent’s

representations about flushability were false, given the uncontroverted proof that Miller’s system

was improperly maintained. Because Miller has not adduced evidence which would allow a

reasonable jury to find in her favor, she cannot show a misrepresentation that could serve as the

basis for her claim for damage to the sewage system. Nor has she shown that the claim of

“flushable” without the additional language “in a properly maintained system” is misleading. A

reasonable consumer would not assume that the litter would be flushable no matter the condition




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Case No. 18-3813, Miller v. Kent


of the consumer’s pipes or septic system.

       Finally, Miller asserts that she suffered harm in the form of an unearned price premium

which Kent charged for WBCL. Miller’s theory is that by falsely claiming that WBCL was

flushable, Kent was able to charge more for it than it would have otherwise. According to Miller,

Kent’s advertising of WBCL as flushable was “deceptive, . . . a misrepresentation, and it omit[ted]

material facts,” and the windfall which Kent collected from this “could not have been incurred

but-for the representation that WBCL was flushable.” Appellant Br. at 26.

       This last attempt to bell a cat again requires Miller to show a misrepresentation on Kent’s

part when it marketed WBCL as flushable. For the same reasons that her sewage damage argument

does not succeed, this claim also fails. Miller did not submit evidence to create a genuine dispute

to allow a reasonable jury to find that WBCL is not flushable.

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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