Lost pet due to medication - Settlement/Release Agreement Received but I'm concerned

[jjkusaf]

What is the name of your state (only U.S. law)? Live in Alabama ... company in question is in Georgia

Will not mention the company. However, my pet (Joey) recently died from a bowel obstruction caused by medication. Neither the package insert or other literature warned about bowel obstruction as a possible side effect/complication. I reached out to the company 1) for them to make changes to their package insert/other literature to reflect this possibility and 2) for some financial recoupment. The ER/Surgery for Joey cost $2200 ... though my main concern was for them to add some notice about "this product may cause bowel obstruction if swallowed whole" (or similar).

Today I received a "Settlement and Release Agreement" which is what I'm questioning.
1) The SRA makes no mention of the company changing their package inserts/other literature which worries me because other pets could fall victim.
2) The SRA states that the final compensation would be $500 though the company stated it was "merely as an accommodation to a customer and this Agreement should not be construed or considered in any sense as an admission of guilt or concession by [[company]] of any claim, fault, liability or damages whatsoever." When in fact the Vet, upon performing surgery on Joey, found the source of the obstruction to be the medication from [[company]].
3) They totally referred to my pet by a different name ... calling him Ingram.

So, what should I do? Should I contact them saying the SRA does not satisfy my concerns or just sign it and be done? If they are unable to satisfy my claims, would this be something for small claims court? Would small claims court have the power for them to adjust their verbiage? Am I crazy in thinking I should at least get around $2000 (to cover the medical cost...heck I would be fine with around $1K) ... I'm not asking for any crazy sum for emotional whatever. I just want them to own up and to change their packaging to reflect this could be a potential side effect. If I were to take them to small claims ... I would have to do this in Georgia...right?

v/r
Jim

Sorry if this is in the wrong subforum ... didn't really see a pet forum.

 

[quincy]

What is the name of your state (only U.S. law)? Live in Alabama ... company in question is in Georgia

Will not mention the company. However, my pet (Joey) recently died from a bowel obstruction caused by medication. Neither the package insert or other literature warned about bowel obstruction as a possible side effect/complication. I reached out to the company 1) for them to make changes to their package insert/other literature to reflect this possibility and 2) for some financial recoupment. The ER/Surgery for Joey cost $2200 ... though my main concern was for them to add some notice about "this product may cause bowel obstruction if swallowed whole" (or similar).

Today I received a "Settlement and Release Agreement" which is what I'm questioning.
1) The SRA makes no mention of the company changing their package inserts/other literature which worries me because other pets could fall victim.
2) The SRA states that the final compensation would be $500 though the company stated it was "merely as an accommodation to a customer and this Agreement should not be construed or considered in any sense as an admission of guilt or concession by [[company]] of any claim, fault, liability or damages whatsoever." When in fact the Vet, upon performing surgery on Joey, found the source of the obstruction to be the medication from [[company]].
3) They totally referred to my pet by a different name ... calling him Ingram.

So, what should I do? Should I contact them saying the SRA does not satisfy my concerns or just sign it and be done? If they are unable to satisfy my claims, would this be something for small claims court? Would small claims court have the power for them to adjust their verbiage? Am I crazy in thinking I should at least get around $2000 (to cover the medical cost...heck I would be fine with around $1K) ... I'm not asking for any crazy sum for emotional whatever. I just want them to own up and to change their packaging to reflect this could be a potential side effect. If I were to take them to small claims ... I would have to do this in Georgia...right?

v/r
Jim

Sorry if this is in the wrong subforum ... didn't really see a pet forum.

There should be an Animal Law forum on FA.

You cannot get a company to change their labeling through a small claims action.

I recommend you have an attorney well-versed in animal law personally review the offered settlement terms - and prior to the personal review, you will want your veterinarian to provide in writing his findings (connecting the medication to the bowel obstruction to the death) for the attorney to review as well.

I am sorry about your loss of Joey.

 

[jjkusaf]

There should be an Animal Law forum on FA.

You cannot get a company to change their labeling through a small claims action.

I recommend you have an attorney well-versed in animal law personally review the offered settlement terms - and prior to the personal review, you will want your veterinarian to provide in writing his findings (connecting the medication to the bowel obstruction to the death) for the attorney to review as well.

I am sorry about your loss of Joey.

aah. Thanks for the quick response...especially regarding the labeling question. I didn't think a small claims court would allow for that (I'd figured it was just for small monetary amounts). Thinking I'll just call them and just say that the SRA really isn't acceptable ... asking them again about the labeling. Once again, I'm least concerned about the money ... and more so about warning verbiage I mentioned previously (though recouping money would be a "bonus").

Not really sure about a lawyer ... I'd imagine those that specialize in animal law are few and far between ... and in the end, may end up costing more money. My co-worker's husband is a lawyer (not sure what he specializes in though) ... I may end up asking if he has any lawyer friends that know about this stuff. That is, if I don't get the solution I'm looking for.

Regarding the Vet ... yea ... I got the write up and the Vet put in her notes "Obstruction identified at cecum. Enterotomy performed and undigested/unchewed [Name of Medication] identified." She also made a couple more references to it throughout her write-up. Also, after the company had received my letter, they called and said that there was already a case number and that the Vet had contacted them. Not sure if that is standard of practice ... but I was a bit surprised anyway. Along with the vet report, I also sent the company various snapshots of their website, the package insert, photos of the box (to include lot number/exp date), the Rx and various other things to strengthen my "case."

 

[quincy]

You can contact the FDA's Center for Veterinary Medicine (CVM) with a complaint about the inadequate warning label on the medicine taken by Joey. The CVM is the agency that regulates drugs for animals, ensuring their effectiveness and safety.

Center for Veterinary Medicine
Food and Drug Administration
HFV-1
7519 Standish Place
Rockville, Maryland 20855
(240) 402-7002 or 1-888-463-6332

The Office of Foods and Veterinary Medicine
Food and Drug Administration
10903 New Hampshire Avenue
White Oak Building 1
Silver Spring, Maryland 20993
(301) 796-4500

You have a chance of having the company cover all of your veterinary costs but how great a chance is anyone's guess.

Good luck.

 

[Taxing Matters]

You have a chance of having the company cover all of your veterinary costs but how great a chance is anyone's guess.

Good luck.

Oh my, what a difference it can make in what state the claim is brought. Though Alabama and Georgia are neighbors, their law on the issue of damages on pets are quite far apart. Out of curiosity I looked at the case law on this for both states. We start with the very old rule that animals, including pets, are considered property under the law. The basic rule for damages when property is damaged or destroyed is that the damages awarded cannot exceed the fair market value (FMV) of the property immediately before it was damaged or destroyed. As result, the rule for a long time in many states was that the the maximum one could get for the loss of a pet is the FMV of the pet just before the act occurred that resulted in the pet’s death. The problem, of course, is that most pets have little or no FMV as there are (unfortunately) far more cats and dogs in this country than are wanted, making it difficult to even give a pet away.

In reviewing Alabama’s cases, it was striking to see that the cases all seemed to be around a century old. The stated rule appears to be that the FMV of the animal is the limit on what may be awarded, keeping to that traditional property view of pets. Whether Alabama might change that rule today if the matter made it to the Alabama Supreme Court, I cannot say. But the case law in that state as it stands now is not encouraging.

Some states have over the last century have moved to allowing more in damages than just FMV recognizing that people have a special attachment to their pets that they do not have for inanimate objects like cars, TVs, computers, chairs, and the like. In these states you can win more than just the FMV of the pet. A few states even allow some damages for emotional distress or loss of companionship, though that is still rare. What is becoming more common is allowing recovery for vet bills incurred to try to save the pet. This recognizes that people will spend far more than the FMV of the pet to try to save it, whereas logically they would not pay more than the worth of a TV or computer to repair those items. Georgia is one of those states that allow recovery of reasonable medical bills to try to save the pet. In a decision from the Georgia Supreme Court just last year, the court stated:

Generally, in a suit to recover damages to personal property it is a well-established principle that “a plaintiff cannot recover an amount of damages against a tortfeasor greater than the fair market value of the property prior to impairment.” See MCI Communications Svcs. v. CMES, Inc., 291 Ga. 461, 463–464, 728 S.E.2d 649 (2012). However, over 120 years ago this Court decided that such a limitation was not appropriate in negligence cases involving the injury or death of an animal. See Telfair County v. Webb, 119 Ga. 916, 919, 47 S.E. 218 (1904); Atlanta Cotton–Seed Oil Mills v. Coffey, 80 Ga. 145, 150, 4 S.E. 759 (1887). Instead, this Court determined that where an animal is negligently injured and subsequently dies as a result of those injuries, the proper measure of damages recoverable by the animal's owner includes not only the full market value of the animal at the time of the loss plus interest, but also expenses incurred by the owner in an effort to cure the animal. See Webb, 119 Ga. at 918, 47 S.E. 218; Coffey, 80 Ga. at 150, 4 S.E. 759.​

Barking Hound Vill., LLC v. Monyak, 299 Ga. 144, 147–48, 787 S.E.2d 191, 195 (2016). It is interesting to note that the Court points to cases over a century old in Georgia for support of its decision, making Georgia a leader in going this direction in animal law. As noted, its neighboring state a century ago came to a different outcome.

 

[quincy]

Animal law is a growing legal field. Courses are being taught in many law schools today. Michigan State University has a great animal law website that follows closely the changes in how animals are treated in courts across the country. https://www.animallaw.info

Gone in most states is the view that companion animals are property. Even in states where the state laws have not changed, you have "rogue" judges who award damages far beyond what would be awarded for property damage. New York has some interesting cases.

 

[jjkusaf]

quincy ... thank you for the idea/address for The Office of Foods and Veterinary Medicine. For some reason, looking at the FDA for animal medications never occurred to me. Been spending a good part of the morning searching for (and pulling up) documents related to this medication (like the NADA)...mostly to make sure I hadn't missed anything. Will write them early next week.

Taxing Matters ... thank you regarding the information about the law...especially about Georgia (and cited court cases). Now the question is, if it came to that, would I fall under Alabama or Georgia law? I figured Alabama was behind the times (btw, I'm not from here I just retired here from the AF and got a job at the VA Hospital). My sister lives in Georgia and in fairly close proximity to the company (like a county over) ... so I would believe that I could file court documents (if I needed to) there since the company is in Georgia? Also, if they aren't able to accommodate my reasonable request ... would it be wise to cite the various court cases you mentioned in follow-up replies ... or would that just immediately slam the door?

I did get in contact with them today and they said they'd be sending another SRA early next week. They did not mention anything about changing the labeling though.

 

[quincy]

quincy ... thank you for the idea/address for The Office of Foods and Veterinary Medicine. For some reason, looking at the FDA for animal medications never occurred to me. Been spending a good part of the morning searching for (and pulling up) documents related to this medication (like the NADA)...mostly to make sure I hadn't missed anything. Will write them early next week.

Taxing Matters ... thank you regarding the information about the law...especially about Georgia (and cited court cases). Now the question is, if it came to that, would I fall under Alabama or Georgia law? I figured Alabama was behind the times (btw, I'm not from here I just retired here from the AF and got a job at the VA Hospital). My sister lives in Georgia and in fairly close proximity to the company (like a county over) ... so I would believe that I could file court documents (if I needed to) there since the company is in Georgia? Also, if they aren't able to accommodate my reasonable request ... would it be wise to cite the various court cases you mentioned in follow-up replies ... or would that just immediately slam the door?

I did get in contact with them today and they said they'd be sending another SRA early next week. They did not mention anything about changing the labeling though.

First, the CVM is the agency responsible for animal drug labeling and would be the agency that requires that a company change the label on their product. Your contact with the CVM can result in an investigation into the drug and its side effects. Be sure to include the veterinary report in your communication. Do not expect immediate results.

Here is a link to the CVM: https://www.fda.gov/AboutFDA/CentersOffices/OfficeofFoods/CVM/default.htm

It is probably too early to consider a lawsuit. The company that manufactures the drug appears willing to negotiate a settlement - and a settlement is preferable to court.

You have the option of filing suit in Georgia or in Alabama, should you find a lawsuit is necessary. You will want to go over the pros and cons of filing outside your home state with an attorney in your area familiar with (or preferably well-versed in) animal law. There are an increasing number of attorneys who specialize in this field.

Good luck.

 

[jjkusaf]

Just to follow up.

I received the new Settlement and Release Agreement today and it was substantially more and just about covers all the cost I incurred for Joey's ER/Surgery. I did find it extremely odd that it went from $500 to $2063 though. I'm assuming they wrote the previous one in haste (thus the incorrect pets name) and hadn't obtained all relevant information (or "crunched the numbers") yet.

Anyway, my last question: By signing this SRA ... nothing would prevent me from bringing my concerns up to the FDA (for reasons I expressed in previous posts)...or am I silencing myself? I'm satisfied with the settlement amount.

Thanks again to all the advice previously.

 

[PayrollHRGuy]

It will bar you from future legal action. What if anything else the agreement will bar you from will be in the agreement.

 

[quincy]

Just to follow up.

I received the new Settlement and Release Agreement today and it was substantially more and just about covers all the cost I incurred for Joey's ER/Surgery. I did find it extremely odd that it went from $500 to $2063 though. I'm assuming they wrote the previous one in haste (thus the incorrect pets name) and hadn't obtained all relevant information (or "crunched the numbers") yet.

Anyway, my last question: By signing this SRA ... nothing would prevent me from bringing my concerns up to the FDA (for reasons I expressed in previous posts)...or am I silencing myself? I'm satisfied with the settlement amount.

Thanks again to all the advice previously.

You should read the settlement papers carefully. There could be a nondisclosure/confidentiality clause in it. These clauses are common with settlement agreements. Such a clause will prevent you from speaking publicly about the terms of the agreement but shouldn't prevent you from reporting the company's drug/labeling to the CVM/FDA.

The settlement amount sounds good. You might not do that well should you take the company to court. You might want to review all facts with an attorney in your area prior to signing, though.

Thanks for the update. Good luck.

 

[jjkusaf]

Thank you again. Will have my co-worker's husband, who is some kind of lawyer, take a look at it. I didn't want to get him involved initially, because 1) I really do not him that well and 2) that would have made it weird. I'm sure he wouldn't mind giving it a quick read just to give me a "yay" or "nay" regarding contacting the FDA. I do not think it bars me (I can understand most of the jargon within) ... but I would like his opinion. Will sign it regardless since it is very reasonable and within my expectations.

Anyway, seeing as this is pretty much the end (and not a "Small Claims Courts" topic anymore) ... I do thank you all very much for the swift and very helpful/knowledgeable responses. If you ever have a question about Nuclear Medicine studies ... hit me up.

v/r
Jim

 

[quincy]

Thank you again. Will have my co-worker's husband, who is some kind of lawyer, take a look at it. I didn't want to get him involved initially, because 1) I really do not him that well and 2) that would have made it weird. I'm sure he wouldn't mind giving it a quick read just to give me a "yay" or "nay" regarding contacting the FDA. I do not think it bars me (I can understand most of the jargon within) ... but I would like his opinion. Will sign it regardless since it is very reasonable and within my expectations.

Anyway, seeing as this is pretty much the end (and not a "Small Claims Courts" topic anymore) ... I do thank you all very much for the swift and very helpful/knowledgeable responses. If you ever have a question about Nuclear Medicine studies ... hit me up.

v/r
Jim

We all appreciate the thanks, Jim, so thanks.

I again am sorry about Joey. Good luck with finalizing a settlement. The company's offer seems to be a reasonable one.

We will definitely keep you in mind if/when questions on nuclear medicine come up.