Defective Pet Foods: New Litigation Theories Or Just the Same Old Chow? An Animal Law Attorney Argues for More Than Market Value Damages

One of the biggest stories in product liability in the past month has been the recall of tens of thousands of cans of food sold to consumers to feed to their companion animals. The news has attracted public attention because it is a tragedy of potentially epic proportion: Somewhere between 20 (according to the FDA) and 20,000-plus (by extrapolating statisticians) of the nation's nonhuman family members have developed serious illnesses and/or died from eating food containing something very toxic that has caused renal failure (still being debated). Furthermore, in the litigation arena, plaintiffs' attorneys ranging from sole practitioners to the large class action law firms most often in the headlines have all filed actions representing both individual clients and broad-ranging classes of thousands of individuals affected by the poisoned food. (At the time of this writing, more than 30 cases had supposedly been filed across the country.)

The next-in-line Multidistrict Litigation Panel case, called something like 'In re Tainted Pet Food Litigation,' may be in the works. The facts and the human-interest stories have all the excitement and energy of one of those infrequent headline-grabbing disasters of the last few decades. In many ways, this story resembles one of those class actions, with thousands of unnamed individuals represented by lawyers seeking substantial compensation from a company or companies that allegedly ignored the potential fatal harm caused by their conduct. As usual, the offending conduct has been alleged to be something between simply negligent at best, to knowingly reckless and fraudulent at worst.

In significant ways, these cases are unique; however, even when you factor in the dog-and-cat-food angle, it is not quite a first of its kind. A class action filed against a different pet food manufacturer by plaintiffs who had alleged their companion animals had gotten sick and died from eating defendant's food was recently settled. While the scope of the problem and number of plaintiffs was smaller than in the current circumstances, the issues were more or less the same. Furthermore, there had been an intervening recall and rash of deaths caused by some pet food on the East Coast.

Although I am not a class action lawyer, my participation in these cases was requested because of my long-term involvement with particular issues that have no parallel in more traditional class actions. Animal lawyers have been litigating, discussing, briefing, and opining on these legal issues for many years. Those different concerns are, specifically, how courts and juries should deal with damages issues in actions in which animals have been injured or killed. The question is a vital one for our society as it continues to grapple with its relationship to, and treatment of, the millions of sentient beings with whom we share our space on the planet. A simple characterization of the question is this: How do we reconcile the fact that companion animals are considered personal, disposable property in the eyes of the law of every state, with the fact that they are treated by many to be members of the family, 'nonhuman children.' They are deemed by both legal and nonlegal standards to be entitled to some greater protection than a toaster or laptop. They are recognized as both medically and psychologically beneficial to human health, and the significance of the bond between humans and their companion animals is evidenced by both the amount of money Americans spend on their animals, and animals' repeated presence in popular literature and the media. Even people who do not live with companion animals know that many of those who do value those animals in very high regard.

Yet by some arcane set of legal principles still hanging on in many jurisdictions that utilize the animals-are-property doctrine, companion animals ' abandoned in and then rescued from shelters ' are worth some amount less than the minimal fees paid to bring them into someone's home and life. Fifty dollars for a laptop, and $10 for the 'antibreed' dog who has lived as part of the family for years. That disconnect ' between the obvious value just described and the $10 the law would provide ' is the hallmark issue for companion animal guardians faced with a tortious act resulting in the death or illness of their dogs and cats. Thus, for years the question for the judiciary and for society, posed by animal law lawyers, has been how to assess damages when one of those animals is injured or killed.

To clarify, we are not talking about damages to be awarded to the animals themselves, or to their guardians for their wrongful death. Rather, because of their legal status as property, these cases involve two areas of the law with which the courts and litigators are very familiar ' property damage and product liability.

Property Damage

Most cases involving injuries to or the death of animals involve a single alleged wrongdoer who has injured an animal ' the neighbor who kills your dog, veterinarian malpractice, or mishaps at a groomer or boarding kennel. The defendant's conduct results in an injury to the plaintiff's animal, who ' despite being a living, breathing, feeling being ' is property in the eyes of the law. The legal reality is that, in contrast to the $10-dog theory, there is a well-established legal doctrine for this unique form of property, based on the value of the animal to the particular plaintiff at bar. It is addressed in the Restatements and in the civil codes of many states, and is referred to alternately as 'peculiar value,' 'special value,' 'value to the owner,' and 'actual value to the owner.' In considering a form of property that is also a family member, think about this ' like personal human family members, personal companion animals mean far more to their owners than they would mean to anyone else in society. Thus, they should be valued as such. Market value is simply antithetical to the notion of a close personal relationship. More appropriately, the familiar canon of 'heirloom value' presents a distinct but similar comparison ' that is, the assessment of damages for a piece of plaintiff's personal property, where a defendant has destroyed that property, which plaintiff alleges is worth far more to the plaintiff than to any other human.

Much of the discussion of the legal theories in these companion animal food cases focuses on this damages issue. Certainly the law in many states supports this evaluation. At the same time, the courts have often balked ' for a variety of reasons ' at making this simple connection and resulting calculation. That is, if companion animals are unlike any other form of property, and there is an accepted method of evaluating the real worth of special property, courts should be doing so. Certainly it is appropriate, given the public recognition of the value of companion animals and the appreciation of the tragedy striking home in thousands of American households.

There is no danger of opening the proverbial 'floodgates.' We all know that no judge or jury is going to award Mrs. Jones damages for the death of her dog Fido that are anywhere near the damages she would get for the death of her husband Joe. Individual animal injury/death cases will never be routinely worthwhile cases (in the terms of resources and economics) for lawyers or plaintiffs. The opportunity here, however, with tens of thousands of victims (of three species), is for the courts to adopt the clear and present message that has come from multiple sectors: Companion animals may be property, but they are something much more, and the law should recognize this. Perhaps most importantly, the courts simply need to apply the doctrine that already exists. (If plaintiffs in these cases can prove an intentional tort, like fraud, emotional distress damages should be available as a matter of law, without concern that because only their property was injured, plaintiffs would be barred from that recovery.)

Product Liability

Although the foregoing straightforward property claims ' and correlated damages assessment ' have nevertheless been the subject of contentious litigation for years, the contemporary toxic food cases present the courts with a different scenario. Courts may take a compelling, direct path to a result that will provide companion animal guardians with the property-plus damages that more accurately reflect the loss suffered, when their nonhuman family members are killed or injured by culpable conduct. To understand this alternative set of claims, we must move from the 'injury-to-property' angle and into the familiar product liability world.

Remember that plaintiffs in the pet food cases claim the defendants sold the plaintiffs a defective product ' bad food. If this were a case involving tainted human food, it would present an easy, traditional claim. Plaintiffs would allege defendants' defective product caused the plaintiffs physical injury, and if causation were proven, the defendants would be liable for all damages caused by that product, which would, without question, include compensation for the physical injury and the emotional distress related to those physical injuries.

The difference here is that the plaintiffs in these cases are individuals whose dogs and cats suffered, and sometimes died, after they ingested the allegedly tainted food. In the property paradigm, these are plaintiffs whose property was injured or destroyed by the defendants' conduct. Unfortunately, these cases present a distinction society is increasingly understanding ' the plaintiffs watched that process; many of them probably spent long, sleepless, teary nights in the wake of their companions' illness and death. They spent thousands of dollars at veterinarians' offices trying to help their animals. Stories already abound describing individuals who, seeing their animals sick and not hungry, carefully nursed them, urging them to eat the very poisonous food that was killing them, unbeknownst to the plaintiffs. Any court or jury will recognize that these plaintiffs experienced stress and anxiety of an extreme nature. There is certainly significant medical evidence at this point that the stress they experienced is indeed 'physical injury.' That is, the biochemical, physiological, externally manifested problems of stress represent actionable injuries. (There is some irony that these maladies are exactly those that life with a companion animal serves to treat or reduce.)

So we have a defective product. (It is hard to dispute that food that kills, or threatens death, is not defective.) We have a physical injury caused by that defective product. Strict product liability law should apply. If it does not, a negligence theory will also suffice. Under either theory, plaintiffs are thus entitled to recover damages against the tort-feasor, damages that include the emotional distress caused by watching one's companion animal endure this suffering. We do not have to deal with the property status of animals, or the courts' reticence to award special value damages to companion animal guardians when their animals are killed, in order to reach this result.

If strict product liability law is applied, it would also mean that one of the important policy reasons for having strict product liability ' to encourage manufacturers to act appropriately to ensure safe products ' would be well served. Other theories related to consumer/products issues may also be valid alternatives here (such as breach of contract, breach of warranty), but at the same time they raise other potential defenses as well, such as lack of privity. Moreover, these theories do not address the central problem plaintiffs (and their lawyers) currently face ' establishing a case for the courts to recognize the human-animal bond through the damages awarded in these cases.

Bruce Wagman is a partner at Schiff Hardin LLP and chief outside litigation counsel for the Animal Legal Defense Fund. His practice is almost exclusively in the animal law field, and he represents a variety of private and institutional clients. He is a coeditor of Animal Law, the first casebook for animal law courses (now in its third edition), and teaches animal law at multiple law schools.

One of the biggest stories in product liability in the past month has been the recall of tens of thousands of cans of food sold to consumers to feed to their companion animals. The news has attracted public attention because it is a tragedy of potentially epic proportion: Somewhere between 20 (according to the FDA) and 20,000-plus (by extrapolating statisticians) of the nation's nonhuman family members have developed serious illnesses and/or died from eating food containing something very toxic that has caused renal failure (still being debated). Furthermore, in the litigation arena, plaintiffs' attorneys ranging from sole practitioners to the large class action law firms most often in the headlines have all filed actions representing both individual clients and broad-ranging classes of thousands of individuals affected by the poisoned food. (At the time of this writing, more than 30 cases had supposedly been filed across the country.)

The next-in-line Multidistrict Litigation Panel case, called something like 'In re Tainted Pet Food Litigation,' may be in the works. The facts and the human-interest stories have all the excitement and energy of one of those infrequent headline-grabbing disasters of the last few decades. In many ways, this story resembles one of those class actions, with thousands of unnamed individuals represented by lawyers seeking substantial compensation from a company or companies that allegedly ignored the potential fatal harm caused by their conduct. As usual, the offending conduct has been alleged to be something between simply negligent at best, to knowingly reckless and fraudulent at worst.

In significant ways, these cases are unique; however, even when you factor in the dog-and-cat-food angle, it is not quite a first of its kind. A class action filed against a different pet food manufacturer by plaintiffs who had alleged their companion animals had gotten sick and died from eating defendant's food was recently settled. While the scope of the problem and number of plaintiffs was smaller than in the current circumstances, the issues were more or less the same. Furthermore, there had been an intervening recall and rash of deaths caused by some pet food on the East Coast.

Although I am not a class action lawyer, my participation in these cases was requested because of my long-term involvement with particular issues that have no parallel in more traditional class actions. Animal lawyers have been litigating, discussing, briefing, and opining on these legal issues for many years. Those different concerns are, specifically, how courts and juries should deal with damages issues in actions in which animals have been injured or killed. The question is a vital one for our society as it continues to grapple with its relationship to, and treatment of, the millions of sentient beings with whom we share our space on the planet. A simple characterization of the question is this: How do we reconcile the fact that companion animals are considered personal, disposable property in the eyes of the law of every state, with the fact that they are treated by many to be members of the family, 'nonhuman children.' They are deemed by both legal and nonlegal standards to be entitled to some greater protection than a toaster or laptop. They are recognized as both medically and psychologically beneficial to human health, and the significance of the bond between humans and their companion animals is evidenced by both the amount of money Americans spend on their animals, and animals' repeated presence in popular literature and the media. Even people who do not live with companion animals know that many of those who do value those animals in very high regard.

Yet by some arcane set of legal principles still hanging on in many jurisdictions that utilize the animals-are-property doctrine, companion animals ' abandoned in and then rescued from shelters ' are worth some amount less than the minimal fees paid to bring them into someone's home and life. Fifty dollars for a laptop, and $10 for the 'antibreed' dog who has lived as part of the family for years. That disconnect ' between the obvious value just described and the $10 the law would provide ' is the hallmark issue for companion animal guardians faced with a tortious act resulting in the death or illness of their dogs and cats. Thus, for years the question for the judiciary and for society, posed by animal law lawyers, has been how to assess damages when one of those animals is injured or killed.

To clarify, we are not talking about damages to be awarded to the animals themselves, or to their guardians for their wrongful death. Rather, because of their legal status as property, these cases involve two areas of the law with which the courts and litigators are very familiar ' property damage and product liability.

Property Damage

Most cases involving injuries to or the death of animals involve a single alleged wrongdoer who has injured an animal ' the neighbor who kills your dog, veterinarian malpractice, or mishaps at a groomer or boarding kennel. The defendant's conduct results in an injury to the plaintiff's animal, who ' despite being a living, breathing, feeling being ' is property in the eyes of the law. The legal reality is that, in contrast to the $10-dog theory, there is a well-established legal doctrine for this unique form of property, based on the value of the animal to the particular plaintiff at bar. It is addressed in the Restatements and in the civil codes of many states, and is referred to alternately as 'peculiar value,' 'special value,' 'value to the owner,' and 'actual value to the owner.' In considering a form of property that is also a family member, think about this ' like personal human family members, personal companion animals mean far more to their owners than they would mean to anyone else in society. Thus, they should be valued as such. Market value is simply antithetical to the notion of a close personal relationship. More appropriately, the familiar canon of 'heirloom value' presents a distinct but similar comparison ' that is, the assessment of damages for a piece of plaintiff's personal property, where a defendant has destroyed that property, which plaintiff alleges is worth far more to the plaintiff than to any other human.

Much of the discussion of the legal theories in these companion animal food cases focuses on this damages issue. Certainly the law in many states supports this evaluation. At the same time, the courts have often balked ' for a variety of reasons ' at making this simple connection and resulting calculation. That is, if companion animals are unlike any other form of property, and there is an accepted method of evaluating the real worth of special property, courts should be doing so. Certainly it is appropriate, given the public recognition of the value of companion animals and the appreciation of the tragedy striking home in thousands of American households.

There is no danger of opening the proverbial 'floodgates.' We all know that no judge or jury is going to award Mrs. Jones damages for the death of her dog Fido that are anywhere near the damages she would get for the death of her husband Joe. Individual animal injury/death cases will never be routinely worthwhile cases (in the terms of resources and economics) for lawyers or plaintiffs. The opportunity here, however, with tens of thousands of victims (of three species), is for the courts to adopt the clear and present message that has come from multiple sectors: Companion animals may be property, but they are something much more, and the law should recognize this. Perhaps most importantly, the courts simply need to apply the doctrine that already exists. (If plaintiffs in these cases can prove an intentional tort, like fraud, emotional distress damages should be available as a matter of law, without concern that because only their property was injured, plaintiffs would be barred from that recovery.)

Product Liability

Although the foregoing straightforward property claims ' and correlated damages assessment ' have nevertheless been the subject of contentious litigation for years, the contemporary toxic food cases present the courts with a different scenario. Courts may take a compelling, direct path to a result that will provide companion animal guardians with the property-plus damages that more accurately reflect the loss suffered, when their nonhuman family members are killed or injured by culpable conduct. To understand this alternative set of claims, we must move from the 'injury-to-property' angle and into the familiar product liability world.

Remember that plaintiffs in the pet food cases claim the defendants sold the plaintiffs a defective product ' bad food. If this were a case involving tainted human food, it would present an easy, traditional claim. Plaintiffs would allege defendants' defective product caused the plaintiffs physical injury, and if causation were proven, the defendants would be liable for all damages caused by that product, which would, without question, include compensation for the physical injury and the emotional distress related to those physical injuries.

The difference here is that the plaintiffs in these cases are individuals whose dogs and cats suffered, and sometimes died, after they ingested the allegedly tainted food. In the property paradigm, these are plaintiffs whose property was injured or destroyed by the defendants' conduct. Unfortunately, these cases present a distinction society is increasingly understanding ' the plaintiffs watched that process; many of them probably spent long, sleepless, teary nights in the wake of their companions' illness and death. They spent thousands of dollars at veterinarians' offices trying to help their animals. Stories already abound describing individuals who, seeing their animals sick and not hungry, carefully nursed them, urging them to eat the very poisonous food that was killing them, unbeknownst to the plaintiffs. Any court or jury will recognize that these plaintiffs experienced stress and anxiety of an extreme nature. There is certainly significant medical evidence at this point that the stress they experienced is indeed 'physical injury.' That is, the biochemical, physiological, externally manifested problems of stress represent actionable injuries. (There is some irony that these maladies are exactly those that life with a companion animal serves to treat or reduce.)

So we have a defective product. (It is hard to dispute that food that kills, or threatens death, is not defective.) We have a physical injury caused by that defective product. Strict product liability law should apply. If it does not, a negligence theory will also suffice. Under either theory, plaintiffs are thus entitled to recover damages against the tort-feasor, damages that include the emotional distress caused by watching one's companion animal endure this suffering. We do not have to deal with the property status of animals, or the courts' reticence to award special value damages to companion animal guardians when their animals are killed, in order to reach this result.

If strict product liability law is applied, it would also mean that one of the important policy reasons for having strict product liability ' to encourage manufacturers to act appropriately to ensure safe products ' would be well served. Other theories related to consumer/products issues may also be valid alternatives here (such as breach of contract, breach of warranty), but at the same time they raise other potential defenses as well, such as lack of privity. Moreover, these theories do not address the central problem plaintiffs (and their lawyers) currently face ' establishing a case for the courts to recognize the human-animal bond through the damages awarded in these cases.

Bruce Wagman is a partner at Schiff Hardin LLP and chief outside litigation counsel for the Animal Legal Defense Fund. His practice is almost exclusively in the animal law field, and he represents a variety of private and institutional clients. He is a coeditor of Animal Law, the first casebook for animal law courses (now in its third edition), and teaches animal law at multiple law schools.