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But the industry’s interests were larger than just defending a single veterinarian with a dead patient. They don’t want wronged pet owners to collect damages for emotional distress caused by the loss of their animal companions. They fear a repeat of, for example, a 1981 Hawaii case in which a dog died after a pet hospital locked it in an unventilated van on a hot day; the court held that the owner had suffered emotional distress based on negligence. The state’s supreme court said that the pet hospital should have known that its actions would suffocate the dog. It took a quarter of a century for corporate interests to get the Hawaii legislature to ban future recovery of such damages in similar cases.
In a 1978 Florida case, a pet owner was allowed to sue for emotional distress after a pet hospital left her dog attached to a heating pad for more than 24 hours. The dog roasted to death. The court found the vet’s actions amounted “to great indifference to the property of the plaintiffs.”
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.
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.
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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.”