The Pet Food Fiasco

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Fido lovers have been checking and re-checking their cabinets after the slew of deaths related to the pet poisoning fiasco.

If you’ve ever owned a pet, the current disaster over contaminated cans and pouches of chow makes you want to cook homemade food for man’s best friend. When I was growing up, even though my brother would taunt and tease our little cat Kiwi, she was still a member of the family. And sometimes, Kiwi was the only member of the family we all mutually loved.

Now, pet owners are on red alert, trying to protect their precious family members, after listening to these daily reports — and many may soon be heading to court.

Lauri Osborne of Plymouth, Conn. feared the worst when she learned of the national recall. One of her beloved cats had already died from kidney failure, and two had become seriously ill. All three of her cats had been eating Iams' canned food, made by Menu Foods of Canada. Alarm bells went off when the brands and codes on the food matched the recalled products. Then, word spread that rat poison, and most recently, melamin — a thermostat plastic from China, may be involved in the tainted food.

“I went out to the car on my lunch break and cried my eyes out,” said Osborne. She and others retained Bruce Newman, a Connecticut attorney, and filed a federal class action lawsuit against Menu Foods. According to Newman, the suit is, “on behalf of Lauri and all of the similarly situated pet owners. There has got to be a lot of good people out there affected.” The lawsuit seeks an unspecified amount of damages.

Judy McGuriman of Hatfield, Pa. has also filed suit. Four weeks ago, her 6-year-old bichon frise, Kirby, began to show signs of kidney failure, including extreme thirst and frequent urination. According to legal documents filed by her attorney, McGuriman fed Kirby Ol' Roy dog food, a brand manufactured by Menu Foods. Now, she blames the company for the dog's death and alleges that Menu Food was aware of the contamination well before the March 16 recall date, and failed to advise the public earlier.

McGuriman is seeking reimbursement for the purchase price of the pet food in question, vet fees, pet burial expenses, the cost of a replacement pet, and incidental expenses, such as travel. The suit also seeks punitive damages and an award for legal costs.

In the meantime, many grieving pet owners have been forced to swallow yet another piece of bad news: when it comes to providing remedies for poisoned pets, the laws in many states provide little more than cold comfort.

According to attorney and pet owner Allan Milstein of Pennsauken, N.J., a pet owner cannot sue for emotional distress, even though "a lot of people in this situation feel that a member of their family has been taken ill or lost.”

"Unfortunately, the law does not recognize that kind of relationship with a pet. It views the pet as property, therefore you can't get (paid for) pain and suffering or emotional distress," said Milstein.

You may be wondering if modern-day law only values pets as property. “Historically, animals have had all sorts of value in our society. At one time, horses were worth more than humans,” says attorney Eric Feinberg. But now, it seems, the law has gone too far in the other direction. In N.Y., for example, when pets suffer harm due to the negligence of others, an owner can only recover for the pet’s replacement value and health care bills.

But that sort of legal analysis overlooks something crucial, according Idaho veterinarian Marty Becker. “At one time, pets were animals. When the animal was sick, it was disposed of. Now, it’s a kid. For these owners, anything that puts their kid at risk, they’re going to panic,” said Becker.

Be that as it may, but to prevail in products liability suits, like the ones being filed in the tainted pet food cases, a plaintiff must prove several elements: 1) that the product itself caused the particular harm; 2) that the product was defective; and 3) that the defendant knew or should have known about the risk of harm.

In all likelihood, the Menu Foods’ cases will settle out of court. Generally speaking, trials produce much larger financial awards than settlements — but Menu Foods has a strong incentive to minimize the ongoing negative publicity to the company. Besides, it seems to me that no jury is going to embrace the argument that Menu Foods should not be held liable for allowing rat poison to taint their food supply.

Meanwhile, the devastating pet stories continue. Phoenix, Ariz. native Jeff Burnton’s two dogs suddenly stopped eating after being exposed to the tainted food a week ago. Only one survived. Beth and Mike Calhoun of Smithville, Mont. lost their dog, Angus, and their cat, Zoe, due to kidney failure caused by the recalled pet food.

Today, Menu Foods reassures the public that their pet food is now safe. The company also designated two hotlines that pet owners can call for updated information and “words of sympathy.” The hotline also explains that it delayed announcing the recall until it could confirm that the animals had eaten their product before dying.

But such efforts are too little and too late for people like Betsy Murner of Washington, Pa., whose 13-year-old shih tzu, Toby, had to be euthanized after suffering kidney failure as a result of eating the contaminated food. “He’s not there anymore, wagging his tail to greet you,” Murner said. “Its just not the same.”

Seeking justice for this fiasco isn’t just a pet peeve. Animal lovers are going to great lengths to demonstrate their undying loyalty to man’s best friend. And I wish them well.


• Lawsuit Filed Over Pet Deaths

Experts: More deaths from pet food are likely

Cause of pet deaths still unclear

US lawsuit over 'pet food death'

Owners watching pets closely after food recall

Connecticut lawyer files class action suit after pet deaths

Seattle LawyerRat poison found in recalled cat food

Pet Owners Report 241 Deaths from Food: Vet

• E-mail Lis With Your Legal Questions!

Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently a professor of law at the New York Law School. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. Lis is also the author of The 51% Minority — How Women Still Are Not Equal and What You Can Do About It. (Watch the Video) To read the rest of Lis's bio, click here.