Emotional damages: Will pet-food lawsuits fuel a fight?

NATIONAL REPORT –– The wave of lawsuits filed over the pet-food recall leaves officials uncertain if the precedent for disallowing emotional distress damages will be followed or overturned — a move that could create new liability for DVMs facing malpractice claims.

Deemed personal property, pets hold no more value under the law than items like electronics or a piece of furniture. Market value, a combination of purchase, spay/neuter, vaccination and deworming costs, is typical compensation awarded to owners whose pets have died or been injured, with the exception of particularly egregious cases. The Menu Foods recall has seen a slew of lawsuits filed in its wake, but whether legal challenges demand new interpretations of existing law or uphold current statutes remains to be seen.

If trends follow the views reported in a recent Gallup Poll (Table 1), law will continue to bar pet owners from seeking what are legally deemed "emotional distress damages," designed to compensate someone for emotional loss caused by the wrongdoing of another. Gathered March 26 through 29, survey results show 63 percent of Americans believe pet owners should only be entitled to actual damages — not emotional losses — for the death or injury of their pet.

The Animal Health Institute (AHI) also voiced its support of the existing legal system, which fully and fairly compensates pet owners and generally allows for recovery of veterinary bills and other costs incurred as a result of the event, says Kent McClure, AHI general counsel. "There is a legal structure in place that has worked well and continues to not only protect owners and animals, but keeps veterinary care affordable to everyone," McClure says. Citing an Oregon case in which a family received $50,000 in punitive damages after a neighbor was found to have intentionally killed their dog with his car, McClure argues the legal system allows pet owners, when necessary, to claim more than economic damages when egregious conduct is involved.

Those using the current pet-food recall and media attention to immediately demand a dramatic expansion of the law are likely either personal-injury lawyers looking for profit or activists with the broader agenda of trying to erase the legal distinction between humans and animals, McClure says.

Rather than focus on emotional distress damages before even knowing what occurred, animal owners and industry professionals should be focused on ensuring the safety of pet-food products.

"The first course of action should be to figure out what happened. How did this happen and how do we prevent it from happening again? This should be the focus of our energy. There is a time later for lawsuits, if necessary," says McClure.

A class-action lawsuit filed against Menu Foods on behalf of California pet owners seeks compensatory damages — covering out-of-pocket costs such as veterinary bills or burial costs for those pets that died — and punitive damages, designed to punish Menu Foods for egregious or harmful behavior. These are the only damages currently applicable through state law. But these limitations may one day change, says Gregory Helmer, a Los Angeles attorney retained by the plaintiffs.

"Laws are not always subject to the status quo. Right now, there is a contradiction between the law and reality. On one hand, we view dogs and cats as man's best friend. On the other hand, the law currently views pets as personal property, something along the lines of a car, computer or desk. When people lose those types of personal property, they are not entitled to emotional distress damages," Helmer says. "It is possible that some day, and perhaps even in the near future, the law could change regarding the availability of emotional distress damages."

But with limited professional support from the veterinary industry, the right to seek unlimited emotional damages may never be granted.

"No one in the profession supports the right of pet owners to seek emotional distress damages for pet loss," says James F. Wilson, DVM, JD of Yardley, Pa. "After all, such damages are available only under narrow circumstances for the loss of human life."

The state of Illinois does have a 2001 law that allows for emotional distress damages against individuals who have committed acts of aggravated cruelty or torture against pets. Providing damages linked to this type of behavior can help deter malicious animal cruelty while limiting damages for these acts of intentional infliction of emotional distress to tightly circumscribed situations, Wilson says. This would rarely apply to veterinarians and other animal caregivers, except in the presence of egregious conduct that these professionals typically would never condone.

"Something the profession probably could live with, however, is the expansion of economic damages for negligent actions," Wilson says. A Maryland law takes that approach. It allows for up to $7,500 for pet loss, irrespective of a pet's market or replacement value. Without such statutory expansion of damages, the application of traditional property law principles requires that a court "total out" a pet as soon as damages exceed its market value.

Table 1

"Owners tolerate having their cars totaled out," Wilson says. "They are really irked, though, when someone argues that a beloved pet should be totaled out because the costs for veterinary care were more than simply acquiring a replacement pet."

This legal principle can be met with resistance by owners, especially when they have just spent thousands of dollars for veterinary care to treat medical ailments, such as the kidney failure seen through the pet food recall.

Recall backlash

"For the law to succeed with the expansion of 'capped' economic damages for pet loss, as Maryland has done, state or local governments would have to draft and pass new legislation," Wilson says. "It is likely that that would be slow in coming."