Large Recoveries for Pet Owners Unlikely in Pet Food Suits

By Mark Johnson
April 3, 2007

Pet owners are not likely to get much compensation if they individually sue pet food-maker Menu Foods over the death of a dog or cat, although they might fare better if they joined forces in a class action suit, legal experts say.

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Most state laws consider animals — even beloved pets — to be only personal property. That means that even for the loss of a faithful family companion, a successful civil lawsuit would not likely produce much reward, said Carl Tobias, a law professor at the University of Richmond.

"With animals, all you get is the value of the property,'' he said. "There are no emotional damages.''

In early March, Menu Foods recalled 60 million containers of its "cuts and gravy'' style wet pet foods, sold under nearly 100 store labels and major brands across North America. It did so after cats fell sick and died during routine company taste tests.

It is not clear how many pets may have been poisoned by the apparently contaminated food, although anecdotal reports suggest hundreds if not thousands have died. The U.S. Food and Drug Administration has received more than 8,000 complaints while the company has fielded 300,000 calls from consumers. The company has only confirmed the deaths of 15 cats and one dog. There is no central database tracking pet deaths in the United States.

Numerous pet owners around the country have sued or are considering legal action against Menu Foods. Some are seeking class action status.

"I would love to find an attorney to take on this company,'' said Brenda Hitchcock of Tampa, Fla. Hitchcock said she racked up $4,000 in veterinarian bills trying to save her 5-year-old cat "S.S.'' to no avail. She said she still has two pouches of the recalled food to prove her case.

In Connecticut, attorney Bruce Newman said he has filed a federal class-action lawsuit against Menu Foods on behalf of Lauri Osborne of Plymouth, who says one of her cats died from kidney failure and two others became ill after eating canned food that has since been recalled. The suit seeks an unspecified amount of damages.

Ontario-based Menu Foods has taken a low-key approach to the recall, expressing concern for people who have lost pets and offering to pay veterinary bills if a pet's illness or death can be directly linked to the food, but admitting no wrongdoing.

Jack Hall, a product liability lawyer from Pittsburgh, said the owner of a dog or cat used for breeding or of a specially trained animal could argue for higher compensation on the basis of lost potential earnings.

Hall said pet owners would fare better if they joined in a class action suit.

"I would think this kind of case would allow itself to a class action. That could work for somebody here,'' he said.

Still, Tobias said even a class-action suit could be tricky.

"The factual variations in the cases will make it very difficult to form a class action,'' he said. "Will people have the proof they need to trace the harm done to the animal back to Menu Foods?''

Dog and cat food sales in the United States reached over $14.3 billion in 2005, according to the Pet Food Institute that represents manufacturers of commercial pet food.

On Friday, the U.S. Food and Drug Administration said recalled pet foods contained melamine, a chemical used to make plastics, but that its tests failed to confirm the presence of a rat poison, aminopterin, reported by the New York State Food Laboratory. The FDA said it also found melamine in wheat gluten used as an ingredient in the wet-style products. Still, it was not immediately clear whether the melamine was the culprit in the deaths.

"We are angered that a source outside the company has adulterated our product,'' Menu Foods Chief Executive Paul Henderson said Friday.

Nestle Purina PetCare Co. said Saturday it was recalling all sizes and varieties of its Alpo Prime Cuts in Gravy wet dog food with specific date codes. Purina said a limited amount of the food contained a contaminated wheat gluten from China.

Also on Saturday, Del Monte Pet Products announced it was voluntarily recalling some of its dog and cat treats with certain date codes. The affected brands are Jerky Treats Beef Flavor Dog Snacks, Gravy Train Beef Sticks Dog Snacks and Pounce Meaty Morsels Moist Chicken Flavor Cat Treats. The company said two other products sold under private labels also are affected: Ol' Roy Beef Flavor Jerky Strips Dog Treats and Ol' Roy Beef Flavor Snack Stick Dog Treats.

Del Monte said it was recalling the food after learning that the wheat gluten supplied to it from a Chinese plant contained melamine.

Henderson insisted his company's products are safe and undergo the "highest levels'' of testing.

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On the Net:

Menu Foods recall: http://www.menufoods.com/recall/index.html