Emotional damages debate headed to high court

Emotional damages debate headed to high court

TVMA to support appeal of lower court ruling to Texs Supreme Court
Jan 01, 2012

FORT WORTH, TEXAS — The Texas Supreme Court will be asked to decide if non-economic damages should be awarded in a mistaken euthanasia case.

Veterinarians fear the recent decision from the Texas' Second District Court of Appeals allowing for the recovery of sentimental value could set a negative precedent that would drive up veterinary malpractice costs.

The Texas Veterinary Medical Association (TVMA) vows to support a Texas Supreme Court appeal of a decision handed down in November allowing the owners of a dog accidentally euthanized in a local shelter to recover the dog's sentimental value.

"Because of the special position pets hold in their family, we see no reason why existing law should not be interpreted to allow recovery in the loss of a pet, at least to the same extent as any other personal property," the panel of three appelate judges wrote in their decision.

"Our feeling is that there's deeper, unintended consequences that could result from this type of ruling," counters Elizabeth Choate, JD, director of government relations/general counsel for TVMA. Choate says the association is worried the decision could drive up the cost of care for pet owners and the cost of doing business for veterinarians.

Some states previously have ruled in favor of awarding non-economic damages for pet loss. For example, Hawaii and Louisiana briefly had rulings allowing damages for sentimental value, but they were ultimately reversed or thrown out, says Greg Dennis, a Kansas-based attorney specializing in veterinary law. Florida also allowed non-economic damages, but the state's Supreme Court eventually determined a lower court's ruling was no good.

To fend off the latest threat, TVMA filed a motion for reconsideration in this case, asking the Texas appellate court to reconsider its decision with a full panel of judges, but the motion was denied, Choate says.

So the ruling stands, for now, Dennis says. But probably not for much longer.

The next step, Choate explains, is to appeal the case to the Texas Supreme Court. Choate says she isn't sure how involved TVMA will get in the appeal—whether it will work with the appellee's legal team or help finance the case—but she says the association will be involved.

Dennis says he doubts the case will go far in Texas' typically conservative Supreme Court.

"I think if that got in front of the Supreme Court in Texas, it would have a hard time," Dennis says.

Nevertheless, it's a case veterinary groups are taking seriously.

The case

The case began after Kathryn and Jeremy Medlen's dog, Avery, escaped from their backyard on June 2, 2009. The dog was picked up by animal control, but when Jeremy went to retrieve the dog, he didn't have enough money. He was told he could return by June 10 with the fee and the dog would be held with a tag on his cage notifying shelter employees that the dog should not to be euthanized. On June 6, the shelter worker Carla Strickland mistakenly placed Avery on a list to be euthanized the following day. When the Medlens returned to collect Avery, they found out he had been euthanized. The couple sued the shelter worker alleging that "her negligence proximately caused Avery's death," according to court records. They sued for Avery's sentimental or intrinsic value. The trial court ordered the Medlens to file for damages recognized by law, and the couple amended their claim for "intrinsic damages" only. The trial judge dismissed the lawsuit.

The Medlens argued in their appeal that the Texas Supreme Court has repeatedly said that damages could be awarded for personal property with little or no market value based on its intrinsic or sentimental value.

"Because an owner may be awarded damages based on the sentimental value of lost personal property, and because dogs are personal property, the trial court erred in dismissing the Medlens' action," the lawsuit argues.

The case may now return to the trial court, where Strickland can file a motion to dismiss on the grounds of governmental immunity, according to court records.