Court of Appeals Rejects Consumer Fraud Class Action for Pet Medication

The First Circuit affirmed last week the lower court's dismissal of a putative consumer fraud class action involving a re-called heartworm medication for dogs. Rule v. Ford Dodge Animal Health Inc., 2010 WL 2179794 (1st Cir. 6/2/10).

Plaintiff, Rule, purchased two doses of ProHeart 6, a medicine for preventing heartworm in dogs, and had them administered to her dog Luke. She later filed a putative class action against Wyeth, alleging that defendant had sold ProHeart 6 without disclosing safety concerns revealed in initial testing and in subsequent use.  She alleged these concerns ultimately led Wyeth to recall the product at the FDA's request. According to plaintiff, adverse reactions were suffered by dogs after receiving ProHeart 6 during trials and in general use after the product was released. Importantly, the class representative conceded that Luke had not suffered any harm from the drug, and that Luke had not developed heartworm while using the drug.

Plaintiff's first cause of action was based on breach of the implied warranty of merchantability and the other based on the state consumer fraud statute, Mass. Gen. Laws ch. 93A. For damages on these two counts, Rule asserted that she and others similarly situated were entitled to the difference between the price they actually paid for ProHeart 6 and what it would have been worth had safety risks been adequately disclosed; for the chapter 93A count, she sought statutory damages if greater than actual damages and also trebling of damages. 

On the warranty count, the alleged unmerchantability (unfitness for ordinary use) of ProHeart 6 lay in its potential for causing harm to a dog. Rule conceded, however, that neither of the two doses injured Luke. So, while the sale to Rule may have been of an "unfit" drug, its unfitness did not give rise to any injury to Rule against which the warranty was designed to guard. Nor did she suggest that Luke became more susceptible to injury, as might be the case where one bought and installed a defective car tire that has not yet run its life. Recovery generally is not available under the warranty of merchantability where the defect that made the product unfit caused no injury to the claimant, the threat is gone, and nothing now possessed by the claimant has been lessened in value.

On the consumer fraud count, the act provides a cause of action for a plaintiff who has been injured by unfair or deceptive acts or practices. In Rule's view, she purchased Proheart 6 because of a deception (failure to disclose the risk), the product was “in reality” worth less than she paid for it (because of that undisclosed risk), and so she suffered damage measured by the difference between what she paid and what she would have paid if the risk had been disclosed. One problem with plaintiff's scenario was that she also alleged that had the risks been known, ProHeart 6 could not be sold at all, given FDA requirements.

But even assuming otherwise, Rule's suit was brought after her purchases and use of the drug, and she admitted that she got both the protection and convenience she sought and that the risk did not manifest itself in injury to her or her dog. Nor was she still holding a product that was worth less than she paid for it; she used the product up entirely and in fact suffered no economic injury at all. Indeed, her theory would not be adopted by deceived buyers whose dogs were actually injured or killed; they could seek not some modest reduction in price but the full cost of added veterinary bills and, if the dog died, its value.

So to the extent chapter 93A injury requires that a plaintiff who seeks to recover show “real” economic damages, Rule did not qualify. If, instead, a different notion of injury had sufficed - such as injury as a violation of some abstract “right” like the right not to be subject to a deceptive act that happened to cause no economic harm - then she would arguably have had a claim under chapter 93A and perhaps could obtain statutory damages.  The First Circuit observed some "tension" in the language used as between the earlier and the later state SJC decisions on the statute and especially where deception and risk are involved. However, said the court of appeals, the most recent SJC cases on point appear to have reaffirmed the notion that injury under chapter 93A means economic injury in the traditional sense.

Finally, the First Circuit addressed plaintiffs' typical policy-based argument that deceptive conduct needs to be deterred through a class action. While the alleged conduct such as that attributed to defendant needs to be deterred, that need not necessarily come from those who bought the product but were not injured.  It could be deterred by those with actual injury.

Cats Are Not People Too: Products Claims For Companion Animals

Defendants who doggedly fend off product liability claims, facing ever expanding claims including from people who aren’t hurt (CFA claims) or were merely exposed to the product (medical monitoring), may have avoided being bitten by a new class of plaintiffs: cats and dogs. In Goodby v. Vet Pharm Inc., 2009 WL 1262406 (Vt. May 8, 2009), the Vermont Supreme Court considered two questions: first, whether non-economic damages are available when a pet dies due to negligent or wanton acts of veterinarians and/or a pharmaceutical company; second, whether a claim for negligent infliction of emotional distress lies for the death of a pet when its human companion was not within any so-called zone of danger at the time of the mishap. The Court answered both questions in the negative.

According to plaintiffs' allegations, their two cats were being treated for hypertension by defendant veterinarians. The day after plaintiffs began administering a medication to their cats, they noticed that the cats seemed ill. The next day, plaintiffs brought one of the cats to the veterinary clinic, and eventually the other cat as well. Both died within a few days. Plaintiffs allege that the deaths of their pets were due in part to the fact that the refill tablets contained at least twenty times the labeled dose of the drug, causing severe toxicity in plaintiffs' cats. Plaintiffs further alleged that the defendant veterinarians negligently or wantonly failed to diagnose the toxicity in the cats.

The general rule is that animals are merely personal property. Plaintiffs asserted that the time has come to allow pet owners to sue for non-economic damages when their pets are killed by the negligent acts of others, citing those cases that recognize the special characteristics of companion animals. Plaintiffs reasoned that those same characteristics make it illogical to continue to categorize pets in the same class of personal property as agriculturally useful animals or inanimate objects. Plaintiffs and amicus the Animal Legal Defense Fund urged the Court to adopt the view that such pets are more properly considered as family members than personal property, so that recovery for non-economic damage occasioned by their loss should be similarly available as for the wrongful death of next of kin.

Reviewing the wrongful death statute, the Court pounced on the anomaly that plaintiffs were requesting a judicial expansion of law to recover for loss of a pet when that law does not allow for loss of a broad variety of critically loved human beings (such as grandparents). Whether the alleged familial quality of companionship between humans and their pets is relatively new or ancient, plaintiffs sought a dramatic alteration to the law. Such changes as plaintiffs requested were better presented to the legislature.

Regarding plaintiffs’ attempt to scratch out an emotional distress claim, the Court assumed, without deciding, that the pets qualified as “someone” close to plaintiffs who faced physical peril by virtue of defendants' negligence. After this threshold showing, where plaintiffs did not themselves suffer an actual “physical impact from an external force,” the remaining elements of an a negligent infliction of emotional distress claim require that: (1) plaintiffs must have been within the “zone of danger” of the acts imperiling their cats; (2) plaintiffs were subjected to “a reasonable fear of immediate personal injury;” and (3) as a result of such imminent danger to their persons, plaintiffs “suffered substantial bodily injury or illness.” Even if plaintiffs in this case could show that they suffered an emotional injury with physical manifestations as a result of their cats' deaths, they cannot establish either of the first two elements necessary for such a claim.

The Vermont Supreme Court affirmed the lower court's decision dismissing the two cat owners' emotional distress claims against their veterinarians and against animal drug distributor Vet Pharm Inc.  Defendants have enough issues dealing with alleged injuries to human plaintiffs.