High-profile cases are putting plenty of bite into the lively field of animal law
Posted Nov 1, 2007 2:48 PM CDT
By Terry Carter
Web Extra: Animal Legal & Historical Web Center
Atlanta business litigator Walter Bush was working pro bono outside his usual track and should have expected what was coming. Moments after winning a preliminary injunction in March to stop the use of gas chambers in Georgia for putting down dogs and cats, Bush told the Atlanta Journal-Constitution, “I’ve been a lawyer for 32 years. I’ve never gotten this emotional over a case.”
The news story noted “his eyes brimming with tears.”
And soon his ears were buzzing with calls from general counsel for some of his longtime corporate clients. “They were merciless,” says Bush, a partner at Schiff Hardin. “They were saying, ‘You never cried over our cases.’ ”
Thus went one lawyer’s initial foray into one of the legal profession’s fastest-growing—and more emotional—niches, animal law. What began with a look over the shoulder of an associate on loan for a pro bono effort has quickly become a passionate cause for this former member of the board of directors of the Georgia Chamber of Commerce.
Steeped in product liability defense and complex business litigation, Bush found himself working closely with the activist group People for the Ethical Treatment of Animals. PETA has recently put on a softer, more strategic face. That means more picketing and leafleting, and no more running ads like the one some years ago that showed Ronald McDonald as a mass murderer, or splashing red paint on fur coats and their owners.
“I don’t like to put myself in a political pigeonhole, but I consider myself pretty conservative,” says Bush. “And I found myself working with animal rights groups and in effect joining hands with PETA. But this particular cause is very strong.” Morton v. Georgia Department of Agriculture, No. 2007CV130839 (Fulton County Superior Court).
And that case is but one little-known example in one small corner of a wide-ranging, burgeoning field of law concerning the status and treatment of animals. Significant change has been coming fast in matters such as anti-cruelty laws, custody disputes, estate planning and even noneconomic standing for challenges to the treatment of elephants and other captive animals.
Thus far, however, animal-protection activists have made only small gains in changing tort law to get noneconomic damages for what the law and the courts still view as “property” rather than the activists’ preference for other terms such as companion animals, special property or even sentient property.
Many lawyers in the field speak of an incremental approach, and seemingly small advances create buzz among the cognoscenti. Such as in April, when apparently for the first time in the U.S., a judge in Tennessee appointed a guardian ad litem to look out for the interests of a dog that is the subject of a highly emotional battle between a divorced couple. In re Estate of Ronald W. Callan Jr., No. D-2252, (Shelby County Probate Court).
“There are a lot of parallels to the environmental movement of the late 1960s and early 1970s,” says David Favre, who teaches animal law at Michigan State University College of Law. “That movement seemed to reach a critical mass of general awareness and just exploded as people paid more attention.” Favre maintains a comprehensive Web site (animallaw.info) on developments in animal law.
Judges, legislators and other policy-makers around the country—federal, state and local—have been hearing more and more in recent years about how animals should and should not be treated, especially in the past 10 years, and even more so in the past five.
Public sentiment can be a significant force for changing law and policy, though here it has far outpaced the law, largely because the courts feel bound by longtime precedents concerning animals as property and because legislatures always listen to powerful interests. The public’s perceptions, for example, became more sharply focused after:
-- Stories, pictures and videos showed the plight of pets stranded or dead in New Orleans after Hurricane Katrina.
-- Saturation news coverage detailed the investigation, indictment and slow-motion lead-up to a guilty plea for football star Michael Vick over his illegal dogfighting hobby.
-- Thousands of pet owners told the U.S. Food and Drug Administration they believed their dogs and cats were killed earlier this year by contaminated pet food.
-- An eyebrow-raising $12 million trust was left to a dog named Trouble. It was bequeathed in August by the late hotel magnate Leona Helmsley.
-- In the 43 states where anti-cruelty laws are felonies, 29 were enacted in the past 10 years.
From increasing debate and challenges over noneconomic damages for injury to pets to force-feeding geese so their livers become diseased and subsequently fatty for the delicacy foie gras; from shutting down slaughterhouses sending horse meat to cultures not sharing America’s equine sentimentalities to trying to ban elephants from circuses, animal law advocates have developed the bite and tenacity of a pack of pit bulls—a breed they’re quick to claim has been unfairly profiled.
In Katrina’s aftermath, Congress passed the bipartisan Pets Evacuation and Transportation Standards Act of 2006. The law requires state and local governments to prepare for the needs of pets and service animals for the disabled in disasters or emergencies.
Americans spent an estimated $40.8 billion on their pets in 2007, according to the American Pet Products Manufacturers Association. That is greater than the gross domestic product in more than two-thirds of all nations. A survey by the association found that 63 percent of the nation’s households—71.1 million homes—have pets.
Quick on the heels of the Vick investigation and before his indictment, the federal Animal Fighting Prohibition Enforcement Act of 2007 was signed in May, applying felony provisions to various interstate commerce aspects of dogfighting and cockfighting. An animal-protection group sued Amazon.com earlier this year for trafficking in magazines about the gruesome competitions. The magazines are replete with ads touting various products and procedures, including blades to strap onto fighting cocks’ feet, ways to make fighting pits and how to treat a dog’s wounds. The Humane Society of the United States v. Amazon.com, No. 07-0623 (District of Columbia Superior Court).
Perhaps the most significant development, though, is what has happened since the death and injury to thousands of cats and dogs earlier this year after they ate contaminated pet food. The scent of possible mass-tort/class-action litigation has attracted a new pack of lawyers into animal law.
Up until now, for the most part these legal issues were pressed by animal-activist lawyers or by animal-loving attorneys helping out pro bono. Now two teams of sophisticated and well-funded class-action lawyers are vying to become lead counsel in federal multidistrict litigation over the tainted pet food. Competing recently were the class action specialists Wexler Toriseva Wallace in Chicago and the San Francisco firm Audet & Partners.
Thirteen class actions from eight federal districts have been put into the MDL thus far, and as many as 100 more cases could be added, according to lawyers involved. In re Pet Food Products Liability Litigation, MDL Docket No. 1850, Master Docket in New Jersey: 07CV2867.
The pet food was sold under more than 100 brand names and manufactured by Streetsville, Ontario-based Menu Foods, which has plants in New Jersey and Kansas. The complaints allege, among other things, that Menu Foods failed to promptly announce there was a problem, and thus more animals were harmed.
Thousands of cases, which may eventually be grouped in subsets based on widely varying state laws and other factors, now will spotlight a number of issues that thus far have arisen mostly in sporadic and isolated fashion around the country. Some state laws and court decisions allow only fair market value for injury to animals, others go by intrinsic value, and some are undecided. Tennessee and Illinois have laws permitting noneconomic damages for death or injury to pets, though the damages are limited.
One of the more enterprising class action lawyers, William Audet of Audet & Partners, filed an additional suit this summer in state court against the Chinese manufacturer of additives for the pet food in question. Considering the bad press China has received over lead paint in toys, some believe Audet might have a chance of collecting on a judgment—should the Chinese government be more interested in saving face overall than in saving just one domestic corporation. Quintana v. Binzhou Futian Biological Technology Co., No. CGC-07-465924 (San Francisco Superior Court).
Animal-protection advocates are especially interested in the MDL’s potential for advancing the use of noneconomic damages. They have been pushing the issue hard for a number of years and, as might be expected, the American Veterinary Medical Association and a group of pharmaceutical and pet food manufacturers have pushed back.
“The federal multidistrict litigation brings a unique legal synchronicity to many of the big issues,” says Adam Karp, a full-time animal law practitioner in Bellingham, Wash. “They’re going to have to look nationwide at how the law values companion animals and whether to consider emotional distress from negligent or reckless or intentional conduct.”
Karp has some clients in the multidistrict litigation, and he is working with one group of class action specialists involved. “I’m in it to remind everyone that, while there are grieving guardians, we’re here for the animals, and this is a unique opportunity to evolve the law,” he says.
The tort reform lobby already has been working the issues from the other side. In 2005, Washington, D.C., tort reform advocate Victor Schwartz registered as a lobbyist for the Animal Health Institute. AHI’s membership includes the animal-product divisions of major pharmaceutical companies such as Abbott, Bayer, Novartis, Pfizer and Schering-Plough.
“Concerns whether criminal laws are sufficient in penalty or description to protect animals is a good issue,” says Schwartz. “But tinkering in tort law to make it work in animal protection is not good.”
If tort law were changed to include, for example, the loss of companionship of a pet, Schwartz says, joint and several liability laws could be used to bring pharmaceutical companies into cases based on the most remote reasons because they have deep pockets.
“Hail Mary passes are much more frequent in tort litigation than in football,” Schwartz says.
Noneconomic damages in animal cases also are opposed by the American Veterinary Medical Association. But the group has no trouble with punitive damages being applied, where allowed, to punish outrageous conduct, according to a spokesman.
“We don’t want veterinarians tempted to do more procedures than necessary, using preventive medicine in an adversarial relationship, at the expense of good communications and cooperation,” says Adrian Hochstadt, the AVMA’s assistant director for legislative and regulatory affairs.
Hochstadt says veterinary medical-malpractice rates would go up and result in higher costs as well as a lower “breaking point” in pet owners’ willingness or ability to pay for the medical care to keep their pets healthy, thus harming the pets themselves.
Animal law activist Christopher Green, who has written extensively on pet valuation and veterinary medical-malpractice rates, disagrees. He argues that most small-animal veterinarians pay $182 annually for policies through an AVMA affiliate, which, adjusted for inflation, is 24 percent lower than rates of 18 years ago. The amount has been kept artificially low, he argues, because laws and courts keep damage awards so low that malpractice suits are not economically practical for lawyers to bring.
Occasionally a case concerning noneconomic damages gives animal advocates hope, but they are extremely rare and often don’t hold up. In 2004, a California jury awarded $39,000 in damages in a veterinary medical-malpractice case, with $30,000 of that for market and “special value” to its owner. A total payment of $75,000, which included costs, was made to the plaintiff. Bluestone v. Bergstrom, No. 00CC00796 (Orange County Superior Court).
Using the AVMA’s own studies, Green has argued that from 1991 to 2001, the cost of a veterinarian office visit doubled, the amount spent on pet medical care per household doubled and the incomes of companion-animal veterinarians increased 71 percent—all while premiums for malpractice insurance were, in effect, going down. The numbers for all four measurements, he says, have increased proportionally since then.
Green, who splits most of his time working in the music business in New York City and running his family’s 167-year-old farm in southern Illinois, wrote a lengthy and oft-cited law-and-economics-style law review article on this in 2004, just as he was graduating from Harvard Law School. “The Future of Veterinary Malpractice Liability in the Care of Companion Animals” ran in the journal Animal Law.
Green’s only legal work these days comes via keeping a hand in animal law issues. He chairs the Veterinary Malpractice subcommittee for the ABA Tort Trial and Insurance Practice Section’s Animal Law Committee.
Green argues that to correct the market, pet owners should pay about 13 cents more per household annually for veterinary services to cover the additional $52 per year a veterinarian would pay for greater coverage, enough to insure for higher payouts of more than just the fair market value of a pet.
Despite the huge increases in the number of pets and demand for their medical care, there is a shortage of veterinarians, and their professional schools need to expand capacity, according to a 2006 report by the Association of American Veterinary Medical Colleges.
At the same time, the legal profession has been gearing up in animal law exponentially. The numbers are stunning:
The first animal law course was taught at Pace University School of Law in 1986. By 2000, 12 law schools taught animal law. Now there are 89, with the expectation of more coming soon.
One-million-dollar grants for animal law courses, workshops, scholarships and related work have gone to seven law schools since 2001, beginning with Harvard. The funds come from a foundation started by Bob Barker, the former host of television’s The Price Is Right. The other schools are Columbia, Duke, Georgetown, Northwestern, Stanford and UCLA. Those targets suggest that Barker wants to create an influential animal law community of legal professionals.
The Animal Legal Defense Fund had 12 law school chapters in 2000 and now has 106.
The ALDF had 70 law firm lawyers doing pro bono work in 2000 and now there are 640.
The Humane Society of the United States opened its own legal shop in 2005 with three lawyers. That practice has grown to 12 lawyers and 40 active cases, with about 200 lawyers helping out pro bono, including members of six of the 10 biggest law firms in the country, according to Jonathan Lovvorn, the society’s vice president for animal-protection litigation.
An animal law casebook, Animal Law: Cases and Materials, was first published in 2000 and is in its third edition at Carolina Academic Press, but its editors say a fourth is already needed. Favre of Michigan State put together another casebook, Animal Law: Welfare Interests and Rights, a second edition of which is being published by Aspen Press.
Bruce Wagman. Photo by Melissa Barnes
For now, career opportunities in animal law are about as limited as causes of action. About 100 lawyers have full-time jobs with various animal-protection groups. There are a few small law firms devoted almost entirely to animal law, as well as a network of dozens of practitioners around the country. Another hundred or so dabble in it, says Karp.
Most importantly, say those who teach or practice in the field, some students taking animal law courses and some lawyers working pro bono will become judges and policy-makers in the future. That surely will help the cause.
Thus the incremental approach of Bruce Wagman, who calls himself an “ethical opportunist.” Wagman looks for cases and issues that might advance animal law. He started growing this niche in the mid-1990s with a 30-lawyer business-oriented firm in San Francisco, Morgenstein & Jubelirer. He did products liability and employment law defense, but had started taking on some animal law cases after an epiphany in 1992, just as he was entering private practice.
Wagman was finishing a clerkship with a federal judge and went to hear William Kunstler speak at an ABA Annual Meeting panel discussion on animal law. Kunstler had recently been persuaded that animals were as put upon as some of his politically infamous and unpopular human clients.
“That was my one and only epiphany,” says Wagman. “I’m not like some guy walking around having epiphanies all the time.” He went vegetarian that day—and later vegan—based on how moved he was by Kunstler.
The late Kunstler’s partner, Ron Kuby, who has continued the radical politics practice, says his mentor indeed developed an interest in animal law just two years before he died in 1995. “It captured his imagination, but he still had Labor Day barbecues and wore leather,” says Kuby. “Had he lived longer, that may well have changed.”
By the time Wagman’s firm merged in January to become the San Francisco office of Chicago’s 400-lawyer Schiff Hardin, his practice had become devoted entirely to animal law.
“I thought they’d be looking at my office just to see who they might put in here,” he says of Schiff Hardin’s leadership. They probably did a double take in a duly diligent look at the Morgenstein & Jubelirer Web site photo of Wagman (a ringer for late rocker Frank Zappa) and his bona fides as a specialist in animal law.
“But they have an understanding that this is something that people appreciate, and the firm had welcoming arms,” says Wagman, co-author of an animal law casebook. He teaches animal law at four Bay Area law schools: Boalt Hall, Hastings, University of San Francisco and Stanford.
The Schiff Hardin leaders probably also noticed that he has a number of paying clients, such as the Animal Legal Defense Fund.
It was Wagman’s work and contacts that brought in the case in which Bush, in the firm’s Atlanta office, won the preliminary injunction to close Georgia’s gas chambers for dogs and cats. Wagman also got Schiff Hardin lawyers in Chicago to work a case to shut down the country’s last slaughterhouse for horses.
These kinds of cases pose some novel issues for litigators in training, and even for seen-it-all litigators like Bush, who finally shed tears in the courtroom.
“In most of my cases there is a living, feeling being at the center of it, or a number of them we are trying to save, and then there’s the legal issue as well,” says Wagman. “There are always two tracks, and sometimes they cause some interesting problems: Do you go for the legal issue or save the animal? And if you do both, where do you draw the line on how you make these decisions?”
Those are no small questions in this fast-evolving area of the law.