Richard G. Nadler, an accomplished attorney with over 30 years of trial and appellate experience, looks at the issue from a legal perspective:
There has been no information as to whether the manufacturers and distributors of this contaminated pet food will offer to pay anything more than a refund for the cost of the pet food. While the safety of pet foods is regulated by U.S Food and Drug Administration, most cases hold there is no private right of action under that federal law. However, the right of recovery is generally governed by state law.
There are several legal grounds for recovery beyond the retail price of the contaminated pet food. Under the Uniform Commercial Code, which has been adopted by all 50 states, the sale of the pet food is subject to the implied warranties of merchantability and fitness for purpose. The sale of contaminated pet food is a breach of those warranties. The Uniform Commercial Code provides for actual and consequential damages as the remedy for breach of implied warranties.
In addition, where there is fraud, the customer may recover punitive damages. Thus, under the Uniform Commercial Code, the customer in Jane Mundy's article could recover as consequential at least $850 for the loss of the dog and $800 for the Veterinary care.
The Uniform Commercial Code is not the only remedy. Other remedies available under state law supplement recovery available under the Uniform Commercial Code. Another ground for recovery is damages for tort, product liability, or negligence. Reported cases reveal:
$3,000 recovery where a pet owner suffered emotional distress after her dog died from ingesting moldy pet food (1994 WL 931533);This type of widespread breach of warranty and tort action affecting hundreds and thousands of pet owners is also right for class action resolution. A class action would be a superior method of investigation and adjudication of the rights of individual pet owners. A class action would avoid inconsistent decisions in different courts and provide a uniform method of compensation to injured victims.
$56,000 recovery where the family suffered emotional distress because the defendant drove over the plaintiff's dog three times which killed the dog (2006 WL 4013399);
$990,000 award where the police shot and killed two dogs (2006 WL 625659).
While the recoveries to each individual may depend on different factors, all of these injuries concern common questions of fact and law. Thus, a class action would be a superior method for resolving the matter.
Richard G. Nadler has represented over 250,000 individuals in civil, criminal, and class action cases.
