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.