July 15, 2007

 

 Adulterated pet food could lead to loss-of-companionship suits in N.J. - July l5, 2007

 

posted July 1, 2007
 

The New Jersey legislature is considering legislation granting owners of pets harmed by contaminated pet food the right to sue for the loss of companionship and claim damages of up to $15,000.

The measure, passed unanimously by the Assembly Agriculture and Natural Resources Committee in late May, is the latest effort to let aggrieved pet owners sue for noneconomic damages when a pet is hurt or killed.

If the bill were enacted, New Jersey would join Illinois and Tennessee as the only states allowing such lawsuits, in limited circumstances.

Assembly Deputy Speaker Neil Cohen introduced the legislation (A.B. 4217) in the wake of the massive recall of adulterated pet food begun by Menu Foods Inc., a Canadian-based manufacturer. More than 100 brands were found to have been adulterated by melamine, which is associated with kidney problems in cats and dogs. At least 50 class action lawsuits have been filed against Menu Foods.

Under U.S. law, animals are classified as property. Although animal abuse or theft of pets can result in criminal charges with fines and even jail time, civil law allows plaintiffs to recover only economic damages when a pet is hurt or killed.

Few pet owners understand their rights to compensation when a pet is harmed, but the recall has brought national attention to a legal standard that's seeing more challenges in state legislatures, said Joyce Tischler, executive director of the Animal Legal Defense Fund.

"Animal lives are valued so low at this point that many pet owners are deprived of the opportunity to protect their animals, as they presume they can. That's why a lot of this legislation is occurring—pet owners are incensed that when something happens to a pet and then they attempt to sue, they realize, 'My pet was worth nothing in the eyes of the law,'" Tischler said.

Cohen's bill would clear the way for suits against the manufacturer, producer, and distributor of adulterated pet food, or any other person who caused or contributed to the contamination that resulted in a pet's illness or death. Persons who had a "duty" to act to prevent illness, injury, or death of a pet from adulterated pet food could likewise be sued.

In addition to compensation for loss of companionship, plaintiffs may recoup expenses related to veterinary care and training, and any unique or special value of the pet, such as a service or show animal, with total damages not exceeding $15,000.

The assemblyman was prompted to introduce the legislation after he saw that many stores still stocked brands of recalled pet food, according to Gleshia Givens, Cohen's director of legislative service. "He started going to all these different stores, just buying the food so other people wouldn't purchase them for their pets," Givens explained, adding that Cohen is himself a pet owner.

Veterinary associations such as the AVMA and New Jersey VMA oppose noneconomic rewards for pet injury or death, saying they will drive up the cost of veterinary care and lead to frivolous lawsuits (see the AVMA Policy on Compensatory Values for Animals Beyond Their Property Value).

"Although the bill is specific to animals that were harmed or died as a result of contaminated pet food, it'd be an easy jump to go from that to loss of companionship of an animal from other causes, such as a vaccine reaction or a surgery that did not go well and the patient died," explained Richard Alampi, NJVMA executive director.

Originally, the bill set no limit on damages. But after the NJVMA and AVMA expressed reservations about the legislation, Cohen amended the proposal by capping damages at $15,000 and removing language referring to emotional distress suffered by the pet owner or immediate family.

The Pet Food Institute, representing manufacturers, also opposes the bill because it singles out pet food with respect to liability and introduces the legal question of the value of a pet, explained PFI President Duane Ekedahl. The PFI board has not taken a position on the economic value of a pet in civil suits, he said, but it is currently evaluating the unintended consequences of litigation that includes personal loss and suffering when a pet is harmed.

"We need to better understand the effect of such potential penalties on pet owners, the pet community, and veterinarians with respect to malpractice insurance," Ekedahl said.

Alampi is pleased that Cohen is willing to work with the NJVMA but worries the bill could be pushed through the Assembly. "Because of the concerns the veterinary profession has expressed, I would certainly hope that this bill is not fast-tracked to a point where we cannot try to reason with (Cohen)," he said.

At press time in June, the bill was not scheduled for a vote in the Assembly, nor was there a companion bill in the state senate. Alampi wondered how much attention the measure would receive, given the legislature's current focus on passing a state budget and the coming November elections, along with a traditionally slow summer session.

If New Jersey were to sanction noneconomic damages for pets, Tischler of the ALDF doesn't expect a flurry of similar bills in other state legislatures. But when U.S. consumers are spending billions of dollars on their pets annually, it shouldn't be all that surprising when some pet owners believe their companion is worth more than the law allows.

"What veterinarians are not looking at is Americans do value their animals more highly than they used to, and because of that, the veterinary community has seen an increase in income," Tischler said. "But these noneconomic lawsuits are the other side of that double-edged sword."

To access AVMA resource specific to the pet food recall and noneconomic damages, visit www.avma.org/advocacy/state/issues/default.asp#ned_recall.