South Texas College of Law professor Fran Ortiz, who filed a brief in the case on behalf of herself and 10 other Texas law school professors who teach tort and property law, says she took emotion out the analysis when articulating the reasons why the high court should uphold the Medlen decision.
The professors' brief concludes that the decision in Medlen is in keeping with 120 years of property law, dating back to the Texas Supreme Court's 1891 decision in Heiligmann v. Rose. In Heiligmann, the court determined that a dog owner could recover for the loss of his pet "either a market value, if the dog has any, or some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog."
"I just set out the rule," Ortiz says, explaining the modern implications of Heiligmann in her amici brief. "If there is market value, then market value applies. And if there is not market value, it's going to be use value or sentimental value. And in either case, the plaintiff will have to prove their damages."
"When anyone makes the argument [that the Medlen decision will] put them out of business, that's assuming that [plaintiffs] can prove the damage in the first place," Ortiz says. And it is very difficult for a plaintiff to demonstrate the sentimental damages caused by the loss of a pet in a state court, she says.
"It may be easier to claim value for market value for an animal that has one than an animal that has sentimental value," says Ortiz, who is also director of South Texas' Animal Law Clinic.
Zandra Anderson, a Houston solo who practices animal law, filed an amicus brief on behalf of the Texas Dog Commission, a group that advocates the rights of pets and their owners. She also argues that there's nothing new to allowing dog owners to recover for the sentimental value of dogs in court. What has changed since the Heiligmann decision is how people feel about their canine companions, Anderson says.
"Welcome to my world," says Anderson, who represents pet owners in everything from property to animal abuse disputes. "It's like family law on steroids. You can't imagine the visceral reactions people have to dogs, because they are sometimes the nicest member of the family. They always welcome you; they're never mad at you. People fight for these animals like you wouldn't believe. It's emotions off the charts."
And it's very hard to separate emotion from the Medlen case, Anderson says.
"When it comes to dogs, there is no red or blue. It's not an issue of Democrats, Republicans, conservatives or liberals," Anderson says. "All people of all political persuasions all love dogs."