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.

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

The appellate court, dominated by conservative, Republican-appointed justices, probably didn’t need such doomsday scenarios to prompt them to find in Craig’s favor. Even accepting McMahon’s assertions of veterinary negligence as true for the sake of discussion, a three-justice panel was unsympathetic. “[Craig’s] care of Tootsie did not directly impact McMahon’s health,” wrote Justice Richard M. Aronson, with concurrences from justices Kathleen O’Leary and Richard D. Fybel. “Although a veterinarian is hired by the owner of a pet, the veterinarian’s medical care is directed only to the pet. Thus, a veterinarian’s malpractice does not directly harm the owner in a manner creating liability for emotional distress.”

Aronson and his colleagues also ruled that Craig had no duty to try to avoid causing McMahon emotional distress and noted that a bystander would have a better stress claim having witnessed the killing than McMahon because she didn’t observe her pet’s demise with her own eyes. They fretted that “expansion” of liability in this area of the law would strain an already-overburdened court system.

“Is every family member residing with a pet a human companion and potential plaintiff?” Aronson asked in his decision. “Moreover, what pets would qualify as companion animals? Few would dispute the longstanding bond between humans and dogs, but limiting emotional-distress damages to dog owner would affront those who love cats.”

The justices slapped McMahon a second time, saying that court resources should be reserved for the resolution of “serious tort claims.”

On the final page of the 19-page opinion, the court softened slightly, claiming they appreciated the “love and loyalty” a pet can inspire. But they still observed that California law “does not allow parents to recover for the loss of companionship of their children, [so] we are constrained not to allow a pet owner to recover for loss of companionship of a pet.”

*     *     *

Four years after Tootsie’s death, McMahon continues to mourn her loss. Her nerves remain frayed. She wrote in one document that she still feels “immense grief, guilt and rage.”

Despite the setbacks, McMahon refuses to concede in the courthouse. From her perspective, she thinks the precedent of Tootsie’s case is that “veterinarians have carte blanche to do whatever they wish with the pets under their care.”

In mid-August, McMahon filed a petition in Orange County seeking a rehearing of the Court of Appeal decision. If the appellate justices had been curt with her, she returned the sentiment. She says their opinion “misstates the facts,” “misapplies the law” and is, in at least one spot, “nonsensical.”

For their part, Wallace and Craig say they remain sympathetic to McMahon’s loss of Tootsie. “What happened is sad and unfortunate,” said Wallace. “We acknowledge her pain. Tootsie died a very sudden and unexpected death. But Dr. Craig—who is a reputable, established veterinarian—followed all acceptable standards of professional conduct.”

Said Craig, “I really don’t want people to think that I’m a monster because of this lawsuit. I did nothing to contribute to that dog’s death. Part of me wishes there had been a trial so that my reputation would have been restored by all of the facts that would have come out.”

On Aug. 31, the appellate court refused to reopen the matter.

McMahon says she will now take Tootsie’s case to the California Supreme Court.

rscottmoxley@ocweekly.com

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