In the McMahon case, the pet industry took an aggressive, multipronged approach. It argued that emotional-distress damages were banned because Tootsie was nothing more than personal property—like a tractor, dining-room table or rare books—and California bans such awards based on the loss of property. Plus, McMahon didn’t personally witness her dog dying; if she did suffer distress, it wasn’t “severe” enough to warrant damages; she wasn’t humanly related to the pet; she didn’t prove Tootsie was “unique”; Craig never expressly guaranteed the dog would receive excellent care—declarations of excellent services on her veterinary practice’s website were generic and unenforceable; and the vets’ actions, even if in error, weren’t “reckless” enough to amount to gross negligence.

“There must be something more, something beyond [McMahon’s] subjective affection for or devotion to an animal,” wrote Victor E. Schwartz and Philip S. Goldberg, Washington, D.C., attorneys representing groups such as the California Veterinary Medical Association and the American Pet Products Association. “There must be the equivalent of a direct promise on [Craig’s] part not only to render professional services in the care of [McMahon’s] property in a non-negligent fashion, but also to take precautions against [McMahon] experiencing a negative emotional reaction if [Craig’s] negligence results in injury or loss of that property.”

In line with such thinking, pet-industry officials applauded a 1994 New York state decision. The court there banned a family from collecting emotional-distress damages after their golden retriever died while locked in a non-temperature-controlled baggage compartment of an American Airlines jet stuck on a runway for more than an hour in 115-degree heat. In that decision, the court ruled that because the family had not physically witnessed the dog suffocating, their distress was limited and thus not worthy of compensation.

Would compensating Tootsie's owner for loss of companionship result in an animal-world Armageddon, as the pet industry claims?
Courtesy Gail McMahon
Would compensating Tootsie's owner for loss of companionship result in an animal-world Armageddon, as the pet industry claims?
Dr. Craig (pictured) says she gave Tootsie excellent care
Courtesy Dr. Diane Craig
Dr. Craig (pictured) says she gave Tootsie excellent care

There’s also a practical reason for the pet industry to dislike emotional-distress claims. Using the current animals-are-property definition helps limit the potential veterinary costs when pet patients die by negligence. In general, vets only have to compensate the pet owner for the market value of the animal. That price is rarely more than a few thousand dollars.

But McMahon’s view on damages has won supporters, too. Officials at the Animal Legal Defense Fund argue that treating pets solely as property is misguided and antiquated.

“Courts across the country are increasingly finding that market value is not the appropriate measure of damages in cases involving the loss of a companion animal,” attorney Bruce A. Wagman, on behalf of the San Francisco-based organization, wrote in documents filed in this case. “These courts recognize that longtime animal companions, like Tootsie, are a special kind of property, in that they cannot be readily replaced in the marketplace. Indeed, Tootsie cannot be truly replaced at all. . . . [McMahon] should be compensated for her loss.”

Pet-industry lobbyists argue that such talk is part of a nefarious national campaign to require courts to consider emotional-distress claims. In documents filed in Tootsie’s case, attorneys Schwartz and Goldberg alleged that animal-rights activists are plotting ways to recast animals, especially pets, as more than personal property. They believe their opposition’s ultimate goal is to legally equate pets with human children, an assertion that has won repeated outrage on the Fox News Channel and in Wall Street Journal editorials. The pet-industry lawyers wondered in writing if a California court would be swayed by what they called “pro-animal” sentiments.

*     *     *

McMahon, who relocated to San Francisco after Tootsie’s death, wasn’t thinking about conspiracy theories or pet-industry profit margins. She wanted Craig held responsible for her “outrageous” conduct. Her dog—the last female in a line of pedigree Maltese, had been “killed,” she concluded. To help prove her point, she hired a veterinarian who was, according to court records, prepared to testify that “Tootsie McMahon more probably than not died as a result of the treatment, care and/or lack thereof.”

But McMahon lost without a chance to present her case to a jury in Orange County Superior Court. Last year, Judge David T. McEachen agreed with Wallace, Craig’s lawyer, who had argued that McMahon wasn’t legally entitled to seek damages for either the intentional infliction of emotional distress or the loss of companionship. The judge based his decision on the observation that dogs are personal property.

To expedite a higher-court review of McEachen’s decision, both parties agreed to a stipulated judgment that favored Craig. In April 2008, Tootsie’s case landed at the Santa Ana-based state Court of Appeal. Schwartz and Goldberg filed an amici curiae brief alleging that exposing Craig to the possibility of paying emotional-distress damages for Tootsie’s death would lead to the deaths of tens of thousands—if not millions—of pets across the nation.

Indeed, according to Schwartz and Goldberg, a McMahon victory would result in a rapid, slippery slope of dire, unintended consequences, an animal-world Armageddon of sorts: pet-insurance rates would dramatically rise; vets would stop offering free spaying and neutering; dog-walking and boarding fees would rise, or the services would become unavailable; friends of pet owners wouldn’t pet-sit for fear of being sued; pet owners would avoid seeking preventive care from vets, meaning more ill and dead pets; more pets would be abandoned; fewer people would buy pets; public health would suffer because of the massive number of abandoned, ill pets; pet-litigation cases would flood courts; auto-insurance rates would “rise across the board” because of the number of abandoned animals running in the streets; police would be afraid to kill animals when appropriate for fear of lawsuits; the cost of human food would rise because farmers wouldn’t protect their livestock from roaming ex-pets for fear of the legal consequences.

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