Over at Concurring Opinions, Alfred Yen speculates about the oncoming litigation against pet food maker Menu Foods, with the food apparently tainted by rat poison.
While appreciating his thoughts on possible res ipsa or strict liability potentials in what may be uncharted waters for a mass pet case, there are issues aplenty to prevent easy resolution. Proving negligence will likely be the easiest part (especially with gov’t investigations), but that isn’t enough for the average owner facing this problem. Here are the big three that I see:
- The evidence is probably gone. The contents were consumed by the pet and the packaging was likely tossed away when empty (especially if they were single serving sizes); [Addendum: If the food was scanned at check-out at a major market and some type of store discount card was used, it might be possible to track the tainted food from store to home]
- The pet may be gone, or the evidence of injuries not well documented, making causation very difficult to prove. Pets, after all, get sick without tainted food; and
- The cost to prove causation may well exceed the value of the case. In New York, at least, the emotional distress of the owner is not compensable, meaning that even if one can prove a pet consumed the tainted food and that it was this food that made the animal sick, the recovery is likely limited to the vet fees and/or the cost of the pet. How much will the veterinary expert set you back as compared to what you may recover?
This may be one high profile case where the efforts of creating new law and proving damages vastly exceed that which may be recovered. While I certainly see aggrieved owners insisting on suit — as this may be their only means of justice for the loss of a beloved pet — I think any attorney taking such a case must appreciate it will likely be similar to pro bono work.
[Addendum: A class action simply for the cost of the food is an altogether different issue, but one that is likely to leave very unhappy clients due to the emotional attachment to their pets and the minimal amounts likely to be recovered by any given owner.]
And if the eye is on punitive damages, the road ahead is completely uncharted in light of Philip Morris v. Williams, and the court’s admonition that harm to others cannot be considered as part of a jury’s determination.
(Eric Turkewitz is a personal injury attorney in New York)