Pankey v. Petco Animal Supplies, Inc.
| Decision Date | 24 June 2020 |
| Docket Number | D072779 |
| Citation | 264 Cal.Rptr.3d 644,51 Cal.App.5th 61 |
| Parties | Andrew J. PANKEY, Plaintiff and Appellant, v. PETCO ANIMAL SUPPLIES, INC., Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
Gomez Trial Attorneys, John H. Gomez, Bibianne U. Fell, San Diego; Higgs Fletcher & Mack, John Morris, and Rachel E. Moffitt, San Diego, for Plaintiff and Appellant.
Horton, Oberrecht, Kirkpatrick & Martha, Kimberly S. Oberrecht, San Diego; Greines, Martin, Stein & Richland, Robert A. Olson, Cynthia E. Tobisman, San Diego and Eleanor A. Ruth for Defendant and Respondent.
Plaintiff Andrew J. Pankey (Andrew) filed a products liability claim against Petco Animal Supplies, Inc., after his son Aidan contracted a rare bacterial infection from a rat purchased at Petco. Aidan later died as a result of complications related to his infection. Andrew alleged, among other things, that Petco was strictly liable for injuries resulting from the sale of the pet rat, which he argued was a product for purposes of strict products liability. The trial court instructed the jury on negligence under ordinary negligence and negligent failure-to-warn theories, as well as three theories of strict products liability: (1) failure to warn, (2) manufacturing defect, and (3) design defect under a risk-benefit test. The jury returned verdicts in favor of Petco.
On appeal, Andrew contends the trial court erred by refusing to instruct the jury on an alternative strict liability design defect theory, the consumer expectations test. He argues there was sufficient evidence from which the jury could have concluded the pet rat purchased from Petco failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.
We conclude a live pet animal sold in its unaltered state is not a product subject to the design defect consumer expectations theory of strict products liability. Accordingly, we affirm. Because we affirm on this basis, we need not reach a conclusion regarding the applicability of the consumer expectations test or the prejudicial effect of its exclusion. Were we to do so, however, we would affirm.
In May 2013, 10-year-old Aidan Pankey and his grandmother visited a Petco store to purchase a companion for Aidan's female pet rat. They selected and purchased a male rat. Aidan kept his male rat in a vivarium at his grandmother's home, but he occasionally handled it outside the vivarium.
Two weeks after purchasing the male rat, Aidan developed a fever, grew increasingly lethargic, and at one point collapsed on the floor. Aidan's grandmother called an ambulance; Aidan passed away at the hospital shortly after he arrived.
The autopsy did not disclose a cause of death or any sign of a bite or scratch. However, analysis from Aidan's tissue samples revealed the presence of streptobacillus moniliformis, a bacteria carried by some rats. Analysis of blood and tissue samples taken from Aidan's rats revealed the bacteria was carried by the male rat, but not the female rat. The parties to this suit stipulated that Aidan's death resulted from rat bite fever
(RBF), an infection caused by streptobacillus moniliformis.
Andrew and Aidan's mother, individually and as administrators of Aidan's estate, sued Petco and Barney's Pets, the exclusive supplier of pet rats for Petco's California stores during the relevant time frame, alleging negligence and strict products liability.
Petco moved for summary adjudication of the strict products liability cause of action on the basis that a pet rat is not a product. The court denied the motion, concluding a pet rat is a product for purposes of California's strict products liability doctrine.
Aidan's mother settled and dismissed her claims against the defendants.
Andrew's case proceeded to a jury trial on four theories: (1) negligence, (2) strict liability based on a warning defect, (3) strict liability based on a manufacturing defect, and (4) strict liability based on design defect.
Plaintiff's infectious disease expert, Dr. Joseph Vinetz, testified that 10 to 100 percent of wild rats carry the bacteria streptobacillus moniliformis. The bacteria is a commensal organism that has adapted to live in rats, but it "doesn't have to be" present in rats. Rats that carry streptobacillus moniliformis appear healthy and for the most part are, but they can transmit the bacteria to one another through direct contact or their environments, and they can transmit the bacteria to humans through bites and scratches, or through their saliva, feces, and urine.
In humans, streptobacillus moniliformis can cause RBF, which typically manifests itself in flu-like symptoms, a fever, a rash, and/or joint pain. Possible complications from RBF include endocarditis
(a heart valve infection), meningitis (an infection of the lining of the brain), septic arthritis, and for 7 to 13 percent of untreated patients, death. Sometimes, RBF resolves on its own.
Dr. Vinetz testified it is "fairly simple" to breed pathogen-free rats that do not carry streptobacillus moniliformis, and he testified at least two laboratories had done so.1 According to Dr. Vinetz, pathogen-free rats can be bred by (1) performing molecular testing to screen out carrier rats, (2) segregating noncarrier rats in a clean facility free from the bacteria where they are allowed to breed, (3) delivering the first-generation pups via caesarian section
(to avoid a minimal risk of transmission through the placenta), (4) using noncarrier rats to feed new pups, and (5) permitting future generations of the pathogen-free pups to interbreed and give birth naturally.
Randall Buck, the vice president of operations for Barney's (exclusive provider of rats to Petco), testified that he attempted to breed pathogen-free rats. He set up a clean facility free from the bacteria, and he purchased rats from labs that provided documentation the rats had tested negative for the streptobacillus moniliformis. He testified that once the rats left their original lab environments, some of them seemed to have compromised immune systems and became ill. Although the labs provided documentation that the rats tested negative for the streptobacillus moniliformis, he was unsuccessful at purchasing rats that were 100 percent free from the bacteria. He testified that the only way to be certain a rat did not carry the bacteria was to euthanize the animal and test brain samples. He also testified that even if rats were bred in a lab to be free from the bacteria, they might not fare well in a pet store environment because their immune systems would be compromised. He based this belief on his own experience in trying to do it.
Petco sells about 400,000 rats nationally every year. It makes periodic, unannounced visits to the facilities of its suppliers, including Barney's, to ensure that the animals are cared for, clean, and well-fed. Rats are not tested for streptobacillus moniliformis as part of these audits. However, Petco requests that its suppliers provide rats that do not carry the bacteria.
Rats can be tested for streptobacillus moniliformis through molecular testing, called a PCR (polymerase chain reaction
). Petco does not tell customers the test is available, but if a customer asks, Petco will segregate the rat, swab its mouth, and send the swab for testing at Petco's expense. It is not clear from the record how many customers have requested such testing, but Petco's vice president of veterinary medicine testified there were two instances he knew of when a customer had made such a request. Petco will also test a rat if it bites someone. Petco tested a total of 381 rats in 2013, the year Aidan died, and 196 of them, or 51.4 percent, tested positive for the bacteria.
If a rat bites someone and tests positive for streptobacillus moniliformis, Petco will euthanize the rat, inform the supplier about the test result, halt further sales of rats from the same batch (i.e., rats of the same size and gender as the carrier rat), and inform customers who have already purchased rats from the same batch about RBF and the positive test result.
Petco warns customers about streptobacillus moniliformis and the dangers of bacterial transmission in three ways. First, a sign near the rat habitats entitled "Safe Small Animal Handling" states: "All small animals can carry germs, which may infect humans." Second, Petco posts "Care Sheets" near its rat habitats, advising customers that "all rats are potential carriers of infectious diseases, such as Rat Bite Fever ...." Finally, at the point of sale it requires that customers who intend to buy animals sign a Companion Animal Purchase Card, which attests that the customer has reviewed caution statements on the backside of the card. One such caution statement advises customers of RBF, the means by which it can be transmitted to humans, and its flu-like symptoms.2
Andrew elicited testimony from Aidan's grandmother and several parents of children who contracted RBF from pet rats purchased from Petco over a period of more than a decade. Aidan's grandmother testified she expected the pet she purchased to be healthy and safe for her grandson. She was aware wild rats could carry disease, but she did not expect a pet she purchased from Petco to be carrying a deadly disease. Other parents testified they believed rats purchased from Petco would be "disease free" and that Petco would sell rats that were "safe for children and families." Parents also testified that they did not have any expectations about the biological makeup of the rat, that independent research about rats explained there was a chance of getting a disease or germs from rats, and that a few looked over the warnings, but "didn't exactly read all of them."
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