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Class action litigators and animal law attorneys are joining forces across the country to sue Menu Foods Inc. and pet food distributors over the poisoning of dogs and cats, with some lawyers aiming to set a new precedent in recoveries for pet-owner clients. They may get bigger damages awards than from similar past cases partly because the incident is unique in the high number of pets � hundreds or perhaps thousands � that have been injured or killed by the poisoning, the lawyers said. In the past, U.S. courts have viewed pets as property and therefore mainly allowed damages for the cost of an animal, which is typically low for most cats and dogs, and veterinarian bills. Efforts to recover for emotional distress over the loss of a companion animal have met with little success. ‘Special property’ Some of the lawyers who have filed the lawsuits say they’ll argue that pets are “special property” that have an intrinsic value beyond market worth. “In terms of real world value, that pet really is priceless,” said Jay Edelson, an attorney at Blim & Edelson in Chicago. “We think we have some arguments where we can recover those same types of damages, even if we have to do it under a different legal theory.” Edelson filed a March 20 lawsuit on behalf of Dawn Majerczyk, whose 9-year-old cat Phoenix had to be euthanized on March 17 after the alleged poison in his Special Kitty Select Cuts caused the cat’s kidneys to shut down. Phoenix’s death was devastating to Majerczyk and her two children, the lawsuit said. They spent $300 trying to save the cat, according to the filing. Majerczyk v. Menu Foods, No. 07CV1543 (N.D. Ill.). The lawsuit alleges that Menu Foods, which is based in Streetsville, Canada, and has U.S. operations, knew the pet food could kill animals weeks before its March 16 recall, and that the company’s requirement that pet owners return tainted food in order to receive a refund is unethical. Calls to Menu and pet food maker Iams Co. for comment weren’t immediately returned. “They’re going to be the only witness as to whether the food was actually contaminated,” Edelson said. “You can’t do that. You can’t destroy evidence.” 2,000 inquiries � so far Edelson, who is a class action litigator, plans to add about 150 plaintiffs to the lawsuit after receiving 2,000 inquiries, he said. His firm is considering hiring an animal law specialist to serve as an expert consultant for the case, he said. Adam Karp of Animal Law Offices in Bellingham, Wash., filed a lawsuit against Menu as well as Iams and other pet food distributors on behalf of Michele Suggett and Don James, whose 11-year-old dog Shasta, a female Pomeranian, died from acute renal failure on March 20 after eating Iams’ Eukanuba Adult Bites in Gravy. Suggett v. Menu Foods, No. 07-0457 (W.D. Wash.). “Liability will likely be a foregone conclusion, with the true battle reserved for the issue of damages,” Karp said. Bruce Wagman of Chicago’s Schiff Hardin, an animal law lawyer who recently settled a separate class action over tainted pet food, plans to serve as counsel or an expert witness in the Menu litigation. Wagman, who is based in San Francisco, said he expects most of the attorneys to use the “special property” argument because the notion of an intrinsic value for an item beyond its market value, like the value of a shabby old family photo, has been established already in law, if not necessarily for pets. Emotional distress Emotional distress awards related to pets have been won only in Florida and Hawaii, he said. “I try to move the law forward by pointing to judgments and law that exist and explaining how my case fits into the existing law,” Wagman said. “Some people come in and say the law is all wrong, let’s change it. That’s a lot harder sell.” The lawsuits have also been filed in Arkansas, California, New Jersey and Tennessee and are expected to be consolidated, Edelson said.

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