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Tort Travesty »
May 9, 2007
By Steve Malanga
This piece originally appeared in the Wall Street Journal, 5-09-07
In the wake of the tainted pet-food scandal, some pet owners, aided by trial lawyers and advocacy groups, are trying to achieve human-like status for their animals in our civil courts. If they succeed, it may become much more costly—and risky—to own a pet in America.
Many of America's estimated 65 million dog and cat owners are justifiably outraged at the news that popular brands of pet food were contaminated by the chemical melamine. Although the Food and Drug Administration has attributed only 16 dog and cat deaths to the contamination, veterinarians have reported thousands of cases of renal distress and failure since shortly after a large maker of pet foods began importing wheat gluten and rice concentrate from China. FDA inspectors are now investigating whether Chinese importers purposely spiked the food with melamine because the chemical shows up as protein on nutritional tests.
The crisis has prompted some 50 class action lawsuits against domestic pet-food brands by trial lawyers who are recruiting owners of stricken pets as clients. Under traditional legal precedent, the damages in these cases are limited to what you paid for your pet and what you've spent in food and vet care, plus any additional bills for having your pet treated for food poisoning. But trial lawyers and some animal-rights activists are hoping to persuade legislators and the courts to allow judgments for noneconomic damages, including awards that take into account the pain and suffering of owners.
As the owner of two dogs that have been conferred full citizenship in my own household, I can sympathize with those who have been victimized. But I also know that if these efforts succeed, suits involving pets will soon come to resemble the rest of our civil justice system, benefiting lawyers and a few litigants at the expense of the rest of us. Owners, trainers, rescue groups and humane societies that do valuable work will all be vulnerable to potentially enormous liability and forced to pay more for everything from vet care to insurance.
The biggest losers will certainly be pet owners. The vast majority of injuries and accidental deaths to pets are not attributable to negligent food companies or incompetent vets. Many are caused by other pets. The pages of training manuals are filled with shocking and unpredictable cases which remind us that aggression is a fact of life on our animal planet, like the Labrador Retriever in the hands of an experienced handler who abruptly turned and attacked a toy poodle, instantaneously breaking its neck.
Such cases would wind up in court more often if trial lawyers have their way. Indeed, pet aggression has been the underlying cause of several cases in which courts have already broken with precedent, as when a Washington State court granted a man $75,000 after a neighbor's dog killed his cat.
Judgments like that would almost certainly exacerbate what is already an insurance crisis. Dog bites of humans now account for 15% of claims paid under homeowners insurance in America—more than $300 million annually. Many insurance companies have stopped writing coverage for certain breeds, and most companies have a zero tolerance policy: If your dog bites once, your insurer will cancel your policy unless you get rid of the animal—which almost certainly means euthanizing it. Since pet-on-pet aggression is at least as common as attacks on humans, big awards would sharply increase insurance company liabilities and force homeowners to choose more often between their insurance and their pets.
Pain and suffering awards would also boost malpractice suits against vets, making care more expensive and less accessible, just as big lawsuit awards have done to our own health care. American doctors, burdened by nearly $30 billion a year in malpractice insurance premiums, practice "defensive" medicine that involves ordering more tests, referrals and procedures than they might otherwise. Individual vets, by contrast, spend no more than a few thousand dollars a year on malpractice insurance and rarely have to worry about defensive procedures, which in part explains why procedures for pets like hip replacement surgery often cost far less than comparable surgery for humans, though the underlying technology is often the same. Despite technological advances that have dramatically expanded the scope of pet care, the cost of basic veterinary services have risen little compared to our own skyrocketing medical costs. And though tort lawyers argue that we need big court judgments to prod doctors to be more diligent, there's no evidence that without such judgments veterinary care in America is inadequate or slipshod.
In the end, just about everyone would potentially bear more liability. Run over your neighbor's cat as you pull out of your driveway and you could suddenly find yourself in court facing hundreds of thousands of dollars in damages if your neighbor made the case that Tabby was an irreplaceable member of the family. Actuaries probably haven't even contemplated what cases like that would do to our insurance premiums.
The pet food scare has prompted an overdue scrutiny of our imported pet and human food sources, and it should prod China, a major exporter, to impose higher standards on its farmers and wholesalers. But opening up our court system to pet pain-and-suffering awards will do little to address that problem.
Steven Malanga, a senior editor at City Journal, is the author of "The New New Left" (Ivan R. Dee, 2005).