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Putting a price on pet grief Some states revamping laws that view animals as property

CHICAGO -- Whether purring around his owner or playing chase with the dogs, Phoenix, a tangerine-colored male cat, was a beloved family member, Dawn Majerczyk said.

She argues that his death, which Majerczyk attributes to tainted cat food, is a loss much greater than the cost of a new cat or the $300 veterinarian bill.

The Chicago woman said she also should be compensated for the grief experienced by her husband, Sam, and their children, Stuart, 17, and Sahra, 14.

"When I saw how hard they cried and how devastated they were, it ripped my heart apart," said Majerczyk, a medical assistant.

Majerczyk filed one of the first federal class-action lawsuits seeking compensation from Menu Foods, the Ontario, Canada-based pet food manufacturer that has recalled millions of cans and pouches of potentially contaminated products.

Her lawsuit and others filed across the United States and Canada are coming at a time when laws and court decisions in some states are beginning to allow pet owners to be compensated for their grief or the loss of their relationship -- in the same way that people can be compensated for the loss of a spouse or a child.

In 2002, a jury in Oregon awarded $135,000 to a family whose two dogs had been intentionally poisoned. It was a sizable award, but less than what might be expected in a human wrongful-death lawsuit.

"Non-humans will never be on complete parity with humans, and that may be good or bad. But I certainly think they should be considered much more on parity than they currently are," said Amy Breyer, a Chicago attorney who specializes in animal law.

This month, Breyer expects to go to trial on behalf of a Chicago woman seeking $100,000 for the loss of her cat, which was killed by a Rottweiler in 2002, while both were in an animal hospital and boarding facility.

The owner, a single woman without children, picked up the cat as a stray but considered it family.

A Cook County judge had dismissed the litigation, ruling that the emotional-loss allegations were insufficient. But the Illinois Appellate Court reinstated the lawsuit on appeal after Breyer argued that the trial judge quibbled with the amount rather than accepting that there was a valid claim for damages.

State laws across the nation treat pets as property. In most, a wrongful death or a botched treatment at the vet typically would get the owner no more than the price of a new animal or the cost of the services.

That has been changing in the last decade, although advocates contend that changes are moving too slowly in the United Staets, where 80 million households now include a cat or dog -- more than households with children.

But proving an emotional link between human and animal is an evolving field of law, legal experts say.

"There's no certainty here that pain and suffering or emotional distress can be recovered -- unless there's a statute on the books," said Adrian Hochstadt, a lawyer with the American Veterinary Medical Association.

State laws are important because there are no federal statutes that define how claims of personal injury are to be compensated.

In the federal class-action lawsuits filed against Menu Foods, a judge eventually will have to decide which underlying state law applies. Most of the contaminated food was made in Menu's plant in Emporia, Kan., according to the federal Food and Drug Administration.

Some states define a pet's worth by its fair-market value, but 17 states have allowed courts to add to that value by considering the pet's qualities or pedigree.

Only Illinois and Tennessee have statutes that allow for damages -- with caps and exceptions -- to compensate for emotional loss, Hochstadt said. In some other states, such as Oregon, courts have allowed for emotional loss.

A trash-hauler recently settled a lawsuit with one of the highest payouts in Illinois, agreeing to pay an 81-year-old woman $9,500 for running over and killing her dog four years ago, Breyer said.

Last year, an Oregon jury awarded a family $50,000 in punitive damages and $6,000 for emotional distress for the loss of their dog, Grizz, who was intentionally run over by a neighbor. The jury determined the dog was worth $400.

The higher damages are a sign of society's changing regard for pets, said Geordie Duckler, an Oregon attorney who represented the family and specializes in animal law.

"Five years ago, they would not have been able to sue for those emotional damages," Duckler said. "The case would have been dismissed, or the jury wouldn't have awarded them anything."

Some courts also have allowed another type of claim, known as "loss of companionship," which recognizes that wrongful conduct damages not only the pet or the owner, but also their relationship.

Legislation is pending in Oregon, New York, Florida and Vermont that would address such claims, Duckler said.

In 2005, the Veterinary Association studied the legal status of animals and reaffirmed its position that animals should be considered as property.

"If we expand these damages, animals won't be helped. A few owners will be enriched, and their attorneys -- everyone else will suffer," Hochstadt said. "We're just concerned about fees, costs going up all over the system. The last thing we want to see is a duplication of the human health-care crisis."

On March 16, Menu Foods recalled more than 60 million cans and pouches of "cuts and gravy" style pet food. The company later expanded the recall.

The FDA confirms that 16 pets have died of suspected food poisoning, but the agency has gotten more than 8,000 complaints from owners.

Federal officials said Friday that the recalled foods contained a chemical used to make plastics.

On Saturday, Nestle Purina PetCare Co. said it was recalling all sizes and varieties of its Alpo Prime Cuts in Gravy wet dog food with specific date codes, the Associated Press reported. Purina said a limited amount of the food contained a contaminated wheat gluten from China. The same U.S. supplier also provided wheat gluten, a protein source, to Menu Foods.

Last week, scientists at the New York State Food Laboratory identified a rat poison and cancer drug called aminopterin as the likely culprit in the pet food. The FDA said it could not confirm the New York finding.

Since Chicago attorney Jay Edelson filed the class-action complaint March 21 on behalf of Majerczyk, he said more than 1,500 people, mostly owners of deceased pets, have contacted his office.

The suit alleges that Menu Foods acted recklessly by delaying the recall until after it had gotten consumer complaints and after its own testing had resulted in the deaths of nine cats.

Menu spokeswoman Sarah Tuite declined to comment.

"I do think it's going to change the laws in a lot of states," Edelson said. "If a law really recognizes a family pet being less valuable than an old sofa, there's a problem with the law."

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