Three articles in the press about pets and lawsuits. The first two are about lawsuits against Menu Foods. The last is about that currently rare (but soon to flourish) species, the malpractice suit against a veterinarian.
“Pet Owners Likely to Get Little in Suits”
The AP suggests class-action lawsuits might be the better option for pet owners affected by the pet-food recall. Unfortunately, the AP doesn’t do a good job explaining why this is so (or even whether the title of the story refers to class action or individual suits). The story accurately notes that in most states pets are legally considered personal property.
That means that even for the loss of a faithful family companion, a successful civil lawsuit would not likely produce much reward, said Carl Tobias, a law professor at the University of Richmond.
“With animals, all you get is the value of the property,” he said. “There are no emotional damages.”
Okay. So why then would banding together in a class action produce a better outcome for pet owners? The AP never says. Catmanager’s opinion (note: although I worked for two years in the law library of a major New York law firm, I have no legal training) is that while a class action would almost certainly benefit attorneys (who would take 30–50 percent of any monetary judgment), the benefits to plaintiffs are possible but far from guarranteed. First, the cost-benefit analysis. The cost of participating in a class action will likely be lower for individual pet owners than filing individual lawsuits. If awards are limited to the replacement value of the pet, which will be negligible for most non-pedigree animals, plus (possibly) the cost of veterinary care, then pet owners in a class action that reaches a verdict might see anywhere from $25 (if only replacement value of the pet is awarded) to $2500 (if veterinary bills are reimbursed, assuming vet bills of $5000, which is probably a high figure). However, as the emphasis in the previous sentence is meant to suggest, pet owners need to consider the possibility that a class action will result not in a jury verdict and award but instead a negotiated settlement. Attorneys often have more incentive to settle than to see a trial through to verdict. By settling, they get paid for sure (filing a class action doesn’t mean you’ll win). They get paid sooner rather than (possibly much) later. They incur far less risk for still significant gain. (Imagine 1000 pet owners with average vet bills of $5000 sign on to a class action. Assume that a successful trial would only recover the vet bills. That’s $5 million. The attorneys take 50 percent or $2.5 million. What incentive do they have to go through the expense and uncertainty of a full trial, however, if they can settle for $4 million or even $3 million? So they make a million less: $1.5 million in hand is better than $2.5 million in the bush.) Still, the cost of an individual hiring a lawyer to sue a large corporation would almost certainly far exceed any likely monetary award. In some states, the replacement cost of a pet and its associated vet bills might not even rise about a small-claims action. Oddly, some pet owners might be more successful filing small-claims actions. Doing so does not necessarily require a lawyer (court clerks will often walk you through the process) and is therefore usually far less expensive. And the prospect of having to respond to thousands of small-claims actions across North America might drive Menu Foods and the other responsible parties to offer a settlement directly to pet owners.
Two factors (at least) complicate my analysis. One is the possibility that some pet owners will be motivated to sue not by the possibility of monetary awards but because they wish to send a message and do something to help prevent similar problems from occuring in the future. The other is the possibility that judges and/or juries will decide that pets do deserve to be treated as more than personal property. If this happens (currently only Illinois and Tennessee have laws allowing judges and juries to award damages for emotional loss in cases involving pets), all bets are off.
“Putting a Price on Pet Grief”
A story in yesterday’s Chicago Tribune discusses the prospects of the Menu Foods lawsuits in light of the trend toward greater state recognition of the emotional links between pets and pet owners. One issue the article points out is that of jurisdiction in the Menu Foods lawsuits:
State laws are important because there are no federal statutes that define how claims of personal injury are to be compensated.
In the federal class-action lawsuits filed against Menu Foods, a judge eventually will have to decide which underlying state law applies. Most of the contaminated food was made in Menu’s plant in Emporia, Kan., according to the federal Food and Drug Administration.
Another type of claim that we might be hearing more about is the “loss of companionship” claim.
Some courts also have allowed another type of claim, known as “loss of companionship,” which recognizes that wrongful conduct damages not only the pet or the owner, but also their relationship.
Legislation is pending in Oregon, New York, Florida and Vermont that would address such claims.
This concept seems to catmanager to be a more happy medium. Clearly, laws that equate pets with inanimate property such as sofas and baseball bats are outdated. Giving animals the same rights as people is also problematic. Acknowledging the special relationships that do exist between people and pets (special, at least, to us; obviously we can’t ask our dogs and cats whether they find their relationships with us to be special, indifferent, or annoying) seems to me to be a reasonable compromise.
“Rare Veterinary Malpractice Suit Goes to Trial
The Record, a New Jersey paper, reports on a malpractice suit against a veterinarian. The case involves a cat that died under anesthesia. The plaintiffs argue that the defendants improperly intubated the cat, causing it to suffocate. The plaintiffs signed a consent form prior to the anesthesia.
Veterinary malpractice cases are rare. Only about 100 cases are filed nationally each year and hardly any make it to trial, according to the plaintiffs and their attorney, Gina Calogero, a member of the Animal Law Committee of the New Jersey State Bar.
“Usually, the expenses are too great and the damages are too low to justify going to trial,” Calogero said outside court. New Jersey law does not allow pet owners to sue for emotional distress in veterinary malpractice cases such as this, she said.
In this case, Calogero tried to sue for the “intrinsic value” of the cat, which she defines as “‘something more than fair market replacement value and less than sentimental value.'” The judge in the case decided that only replacement value could be awarded if the jury found negligence.