May 15, 2008

 

 Vermont's high court considers pets' special value - May 15, 2008

 

Suit seeks compensation for emotional pain and loss of companionship

posted May 1, 2008

 

Vermont's Supreme Court will hear a case about whether a pet owner has the right to compensation for the emotional pain and loss of companionship when the animal dies as a result of negligence.

Sensing the importance of the case, veterinary associations—including the AVMA—animal rights groups, and other interested parties are weighing in. Although limited to the state of Vermont, the court's decision has the potential to reshape animal jurisprudence in this country as well as the practice of veterinary medicine.

The plaintiffs, Robert and Susan Goodby, were having their two cats treated for hypertension in December 2002. The veterinarians had prescribed 1.25 mg amlodopine chew tabs, which had been dispensed by a veterinary pharmacy to treat the condition. The concentration of the drug dispensed was allegedly much higher than the labeled dosage, which the plaintiffs claim caused their pets to become ill and die within days of one another.

In 2005, the Goodbys filed suit against the veterinarians and the compounding pharmacy, citing breach of contract and negligence as well as loss of companionship and society, severe emotional distress, and negligent infliction of emotional distress.

Claims for noneconomic damages over the wrongful death or injury of a pet are rare but on the rise. These suits are almost always dismissed, however, because animals are considered property for the purpose of determining compensatory value. Tort laws allow owners to recover an animal's market value, associated medical expenses, and, at times, other economic damages, such as breeding status, pedigree, and special training. The exceptions are Tennessee and Illinois, where the state legislatures have allowed noneconomic rewards in companion animal cases in very limited circumstances, excluding veterinary negligence cases.

Animal rights lawyers have been working to change decades of legal precedent by asking courts to recognize the human-animal bond by allowing plaintiffs to collect enhanced damages. They argue that most pet-owning Americans think of their cats and dogs not as property but as family members. Therefore, they say, compensation that fails to account for a pet's emotional value to the owner is out of touch with societal norms.

The Goodby case took a number of unusual turns before finally arriving at the state Supreme Court. Initially, the trial court dismissed their loss of companionship and emotional distress claims. The Goodbys appealed and eventually dropped all economic claims from their suit. They then requested that the state Supreme Court decide one single issue: whether they could, in fact, recover noneconomic damages for the deaths of their cats.

 

"Might an individual who negligently hits a dog with an automobile face potentially huge liability in the form of emotional distress and loss of companionship damages by the owner, for example?"

— AVMA AND VERMONT VMA

According to the Goodbys' attorney, Steven Wise, the time has come for courts to allow noneconomic rewards when a pet dies or is injured as a result of negligence. "I've been waiting for a case like this for a long time," said Wise, who teaches animal rights law at Vermont Law School.

"The only reason we're filing this suit is to get noneconomic damages. We're not interested in winning a hundred dollars just because that's what the cats are worth," he said.

 

The Animal Legal Defense Fund filed an amicus brief on behalf of the Goodbys in which it argued that pets are a special kind of property, not disposable items readily replaced in the marketplace. "It follows that courts should determine damages for loss of property, such as a companion animal, by properly assessing the animal's true value to his or her guardian," the group wrote.

What the Goodbys are asking the court to do, explained Samuel Hoar, the veterinarians' attorney, in his brief to the state Supreme Court, is to "effect a dramatic revolution" in animal law. Their arguments are little more than an invitation for the court to make a new cause of action for the wrongful death of a pet, which only the state legislature has the authority to do, he said.

The AVMA and Vermont VMA filed a joint amicus brief on behalf of the veterinarians. Among the reasons they cite for the court to deny the Goodbys' appeal is noneconomic awards would result in higher liability insurance premiums for practicing veterinarians. Additionally, veterinarians would be forced to practice "defensive medicine," by which they recommend a range of procedures and treatments to decrease the chance of being sued by clients.

Both scenarios lead to higher costs that would be passed on to pet owners, meaning some may visit the veterinarian less or not at all, ultimately harming the animals, the AVMA and Vermont VMA argue.

"(C)ourts should determine damages for loss of property, such as a companion animal, by properly assessing the animal's true value to his or her guardian."

— ANIMAL LEGAL DEFENSE FUND

Besides veterinary medicine, a range of industries and individuals would also face increased liability, the associations continued. "Might an individual who negligently hits a dog with an automobile face potentially huge liability in the form of emotional distress and loss of companionship damages by the owner, for example? Nothing in the Goodbys' claim would prevent such an outcome," they state.
 

In a brief urging denial of the Goodbys' appeal, the Animal Health Institute and American Kennel Club noted how the courts won't allow a person to collect emotional loss damages for wrongful injuries to friends, siblings, and other important relatives. "We have asked the Vermont Supreme Court to stick with traditional law," said Dr. Kent McClure, AHI general counsel.

As of press time in late April, a trial date had not been set.

The AVMA's position opposing noneconomic damages—"Compensatory values for animals beyond their property value"—is posted on the Association's Web site (www.avma.org) under Policy in the Reference section.