Goodby v. Vetpharm, Inc.

• Decision Date: 08 May 2009
• Docket Number: No. 08-030.,08-030.
• Citation: 2009 VT 52,974 A.2d 1269
• Parties: Susan GOODBY and Robert Goodby v. VETPHARM, INC. d/b/a BCP Veterinary Pharmacy, Valerie Yankauskas, D.V.M., Paula Yankauskas, D.V.M., Cynthia Pratt, D.V.M., and Charles Powell, D.V.M.
• Court: Vermont Supreme Court

974 A.2d 1269

2009 VT 52

Susan GOODBY and Robert Goodby v. VETPHARM, INC. d/b/a BCP Veterinary Pharmacy, Valerie Yankauskas, D.V.M., Paula Yankauskas, D.V.M., Cynthia Pratt, D.V.M., and Charles Powell, D.V.M.

No. 08-030.

Supreme Court of Vermont.

May 8, 2009.

Pamela L. Dein, Bridgewater, and Steven M. Wise, Coral Springs, FL, for Plaintiffs-Appellants.

Thomas P. Simon of McCormick, Fitzpatrick, Kasper & Burchard, P.C., Burlington, for Defendant-Appellee Vetpharm, Inc.

Samuel Hoar, Jr. of Dinse, Knapp & McAndrew, P.C., Burlington, for Defendants-Appellees Yankauskas and Pratt.

Vincent Illuzzi, Orleans, and James E. Burns and Nicole A. Roth of Orrick, Herrington & Sutcliffe, LLP, San Francisco, CA, for Amicus Curiae Animal Legal Defense Fund.

Elizabeth H. Miller of Spink & Miller, PLC, Burlington, for Amici Curiae American Veterinary Medical Association and Vermont Veterinary Medical Association.

Michael Marks of Tarrant, Marks and Gillies, Montpelier, for Amici Curiae Vermont Federation of Dog Clubs, Animal Health Institute, American Kennel Club and Pet Industry Joint Advisory Council.

Present: REIBER, C.J., JOHNSON, SKOGLUND and BURGESS, JJ., and TOOR, Supr. J., Specially Assigned.

¶ 1. BURGESS, J.

This case presents two questions: first, whether noneconomic damages are available when a pet dies due to negligent or wanton acts of veterinarians and a pharmaceutical company; second, whether a claim for negligent infliction of emotional distress lies for the death of a pet when its human companion was not within any so-called zone of danger at the time of the mishap. We answer both questions in the negative and affirm the superior court's order of dismissal.

¶ 2. Plaintiffs, the owners of two cats who allegedly died from treatment and medication supplied by defendants, appeal from the superior court's grant of partial judgment on the pleadings for defendants. The trial court's order dismissed plaintiffs' claims for loss of companionship and society and severe emotional distress, as well as their complaint for negligent infliction of emotional distress. The first two counts are for noneconomic damages claimed by plaintiffs as part of their causes of action for breach of implied warranty of merchantability, breach of express warranty of merchantability, breach of implied warranty of merchantability for a particular purpose, negligence and wantonness, breach of the Vermont Consumer Fraud Act, and breach of contract. Initially, plaintiffs received the superior court's permission to take an interlocutory appeal from the order, but defendants opposed the appeal, and this Court dismissed it as improvidently granted. Plaintiffs then voluntarily dismissed their remaining claims for economic damages so that they could proceed with a direct appeal of the superior court's partial judgment on the pleadings.^*

¶ 3. When reviewing a grant of judgment on the pleadings, we take as true "all well-pleaded factual allegations in the nonmovant's pleadings," including "all reasonable inferences to be drawn from them." Knight v. Rower, 170 Vt. 96, 98, 742 A.2d 1237, 1239 (1999). Any "contravening assertions in the movant's pleadings" are considered false. Id. Where defendants move for judgment on the pleadings, they "may not secure a judgment" if the "plaintiff's pleadings contain allegations that, if proved, would permit recovery." Thayer v. Herdt, 155 Vt. 448, 456, 586 A.2d 1122, 1126 (1990). In the present case, after taking all of plaintiffs' allegations as true, we affirm the trial court's judgment on the pleadings dismissing the claims for noneconomic damages and NIED.

¶ 4. According to plaintiffs' allegations, their two cats were being treated for hypertension by defendant veterinarians Paula Yankauskas, Valerie Yankauskas, Cynthia Pratt, and Charles Powell at Lamoille Valley Veterinary Services. The prescribed treatment for the cats' hypertension was the administration of one 1.25 milligram tablet of amlodipine per cat per day. Plaintiffs followed this treatment plan, and purchased a refill of the amlodipine from the veterinary clinic in early December 2002. The clinic dispensed the amlodipine from a stock bottle of the drug manufactured by defendant Vetpharm, a Texas corporation whose primary business is selling compounded veterinary drugs. According to plaintiffs, this refill batch of the amlodipine initiated a series of events culminating in their cats' deaths.

¶ 5. The day after plaintiffs began administering the refill amlodipine to their cats, they noticed that the cats seemed ill. The next day, plaintiffs brought one of the cats to the veterinary clinic, where one of the defendant veterinarians diagnosed it with a respiratory illness, and treated it with an antibiotic. On the following day, plaintiffs informed another of the defendant veterinarians that their cats' conditions were worsening and that both cats were resisting taking the amlodipine. The defendant advised plaintiffs to continue administering the hypertension drug. On the fourth day after the refill of Vetpharm amlodipine, plaintiffs rushed one of the cats to the clinic, where it died hours later. That same evening, after realizing the seriousness of the first cat's condition, plaintiffs brought their other cat to the clinic. One of the defendant veterinarians treated the second cat with fluids and another drug for two or three days, but the second cat also died.

¶ 6. Plaintiffs allege that the deaths of their pets were due in part to the fact that the refill amlodipine tablets manufactured by Vetpharm contained at least twenty times the labeled dose of the drug, causing severe toxicity in plaintiffs' cats. Plaintiffs further allege that the defendant veterinarians negligently or wantonly failed to diagnose the toxicity in the cats, and that defendants improperly treated both cats after the onset of the cats' toxic responses to the amlodipine. Plaintiffs seek compensation for the lost companionship and society of their animals, and for emotional distress at having been made the unwitting agents of their pets' demise.

¶ 7. Plaintiffs recognize that the common law generally treats animals as personal property. McDerment v. Taft, 83 Vt. 249, 249, 75 A. 276, 276 (1910). We have said that the measure governing damages to personal property is the property's "fair market value before the injury less fair market value after the injury." Turgeon v. Schneider, 150 Vt. 268, 273, 553 A.2d 548, 551 (1988) (quotation omitted) (addressing damages and replacement costs to inanimate farm equipment in particular). That there may be a different or more appropriate measure of damages for the tangible loss of pets due to the negligence of others — a measure based on the particular pet's value to its owner, not simply its value to a stranger in the market — need not be considered here, since plaintiffs effectively waived that claim by dismissing all claims for general damages in favor of preserving only claims for their lost companionship and emotional distress resulting from the death of their pets.

¶ 8. We have acknowledged that pets have special characteristics as personal property. See, e.g., Lamare v. N. Country Animal League, 170 Vt. 115, 122, 743 A.2d 598, 602 (1999) (discussing the nature of dogs as "highly qualified" property subject to "limitation and control," but noting that the value of a dog "derives from [its] relationship with its human companions"); Morgan v. Kroupa, 167 Vt. 99, 103, 702 A.2d 630, 633 (1997) (stating that pets are a unique type of personal property due both to their emotional value to humans and because they are subject to a high degree of regulation). Plaintiffs argue that Morgan and Lamare depart from the general rule that animals are merely personal property. They contend that these cases set the stage to allow pet owners to sue for noneconomic damages when their pets are killed by the negligent acts of others. Since those cases recognize the special characteristics of companion animals, plaintiffs reason that those same characteristics make it illogical to continue to categorize pets in the same class of personal property as agriculturally useful animals or inanimate objects. In both Morgan and Lamare, however, the dogs at issue remained personal property despite their recognized human attachments, and their intangible value in monetary terms was never considered or addressed.

¶ 9. Plaintiffs and amicus Animal Legal Defense Fund urge us to adopt the view that companion animals are more properly considered as family members than personal property, so that recovery for noneconomic damage occasioned by their loss should be similarly available as for the wrongful death of next of kin. See 14 V.S.A. §§ 1491, 1492(b) (enabling recovery by parent for the "loss of love and companionship" of a deceased child and "for destruction of the parent-child relationship"); Dubaniewicz v. Houman, 2006 VT 99, ¶¶ 6-16, 180 Vt. 367, 910 A.2d 897 (allowing siblings to recover damages for loss of companionship under the wrongful-death ...