A Major Victory for Animal GuardiansPosted by Matthew Liebman, ALDF Staff Attorney on October 7, 2008
The Court of Appeals for the State of Washington just released a published opinion in an important case brought by ALDF member and animal lawyer Adam Karp, and in which ALDF attorneys filed an amicus brief. The case, Sherman v. Kissinger, No. 60137-7-1 (Wash. Ct. App. Sept. 29, 2008), stemmed from the death of Ruby, a toy poodle, following an unauthorized procedure by her veterinarian. Represented by Karp, Ruby’s guardian Arlene Sherman sued the vet and the hospital, bringing claims for professional negligence, breach of fiduciary duty, negligent misrepresentation, conversion, trespass to chattels, breach of bailment contract, and negligent infliction of emotional distress.
At issue in the appeal was whether Washington’s medical malpractice statute, chapter 7.70 RCW, applied to lawsuits involving allegations of malpractice by veterinarians. Although one might assume that applying a human health statute to veterinarians would be a good thing for animals and their guardians, in fact, the opposite is true. Chapter 7.70 establishes a number of impediments to malpractice suits, including mandatory mediation, a shorter statute of limitations, and the elimination of alternative causes of action, many of which are relied on by animal law practitioners to enhance claims on behalf of animal guardians. The Court of Appeals agreed with Sherman’s position, holding that the medical malpractice statute did not apply to veterinary malpractice suits, and that Sherman was entitled to pursue the alternative causes of action that the trial court had thrown out.
The second issue, the one on which ALDF submitted an amicus brief, was how to put a value on Ruby to compensate Sherman for her loss. ALDF argued that Ruby was a unique individual who was irreplaceable; the only way to even approach adequately compensating Sherman was to give her the special value that she placed on the dog, also known as “intrinsic value.” The defendants position, which was supported by an amicus brief from pet industry organizations including the American Kennel Club, was that Sherman was only entitled to the market value of Ruby, an amount of $100-$200. Under Washington law, an individual is entitled to the intrinsic value of her companion if she can show the animal has no market value. The court held, importantly, that the question of whether an animal has any market value is one left to the jury to decide. All the plaintiff must do is present evidence that the animal lacks a market value and a replacement value (perhaps because of her age, mixed breed status, or health), and the question goes to the jury on the animal’s value. Because juries are often sympathetic to the real value people place on their animal companions, this is a major victory for guardians.
ALDF send its hearty congratulations to Adam Karp and Arlene Sherman for this significant victory, and to Claire Davis at the law firm of Wilson Sonsini Goodrich & Rosati, who assisted with ALDF’s amicus brief.