Written by Robert Justin Lipkin on April 8th, 2007

Several cats and dogs have died and others are sick from eating contaminated, gourmet pet food. No one knows how many unreported deaths or sicknesses there are. The original report laid the blame on Aminopterin, a drug used in treating cancer in the United States and for exterminating rats in other countries. Subsequent reports blamed wheat gluten produced in China, more specifically, the latest report contends that the cause of death is melamine combined with wheat gluten. More frightening is the speculation that the poison, whatever it is, has entered food intended for human consumption. At this time, no on knows for certain just what the cause(s) is. The poisoned food was put on the market between December 3, 2006 and March 6, 2007.

The kitten you see above right–Kaelin–is approximately fifteen months old. At fourteen months, he was diagnosed with severe kidney disease. The ultra sound of his kidneys showed that Kaelin’s kidneys looked like the normal kidneys of a fourteen year old cat. When asked about Kaelin’s prognosis, the veterinarian replied “Think weeks or maybe months, not years.” Kaelin’s younger brother–Hendrix, pictured below–is eight months old and also has elevated kidney levels. Both kittens were placed on prescription food for cats with kidney disease. I suspect the tough-minded among you are probably ready to scream, “Ok, Bobby, so pet lovers are saddened, but what does this have to do with law. Please, Bobby, stay on point.”

Here’s the point. How do I prove that the kidney disease killing both kittens, from different breeders, was caused by Eukanabu, one of the gourmet foods listed as contaminated and at the time my kittens’ daily feast? Without receipts, or the actual products, what counts as evidence that the disease was caused by the tainted food? Yes, I have diagnoses that both kittens suffer from kidney disease. And yes, both kittens ate the poisoned foods daily. But how do I tie their kidney disease with the product in question? Tort law–or the law of civil liability–speaks of “proximate cause,” one of those contested terms that lawyers use in conclusory tirades for their side. And even if I can prove proximate cause, what kind of damages can I claim? Do “pain and suffering” count for the loss of a feline friend? The common law and the laws of several states lump animals, even pets, in the same category as tables and chairs, and other pieces of property. As property, the liability consists of the price of the animal (if deceased) and veterinary bills. Accordingly, the category of “pain and suffering” does not apply. But maybe it should.

CNN had a piece on the current slaughter including some vague reference to changing the common law. But that will be a hard sell. Imagine the litigation–fraudulent and even honest–if pain and suffering applied to animals. How much will the pain and suffering be in a settlement for your cute little “doggie in the window” that your neighbor just ran over? The common law has an overwhelming penchant for resisting change. Nevertheless, the common law’s resistance to change co-exists with its ability to develop, sometimes in revolutionary ways, to accommodate changing times and different sensibilities.

Kidney disease is a common killer of cats, but it afflicts mostly older cat, not kittens. By contrast, can one reasonably pass off as coincidental that both kittens developed kidney disease during the same period in which they feasted on contaminated food, and yet the food was not the cause of their disease? If not the food, what other conceivable explanation is available? Maybe, I need a good lawyer.

This is an updated version of virtually the same post at Ratio Juris on Tuesday, March 27, 2007.


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