Iris Lewis v. Al DiDonna, Pharmacist; James DiDonna, Pharmacist; Eckerd Drug Store of Stone Ridge, New York; Eckerd Corporation d/b/a "Eckerd Drugs" or "Eckerd Drugstore" (a foreign corporation); and J.C. Penny, Inc. (a foreign corporation)

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Year Case Filed:  2002 Jurisdiction Level:  New York Case File Num:  00-472 Defense Attorney:  Boeggman, George, Hodges & Corde, P.C. by Harold L. Moroknek Drafting Attorney:  Prior and Prior by Jonathan Follender
Summary:

In this case, the plaintiff brought her dog of nine years to a veterinarian and was given a prescription for an anti-inflammatory drug called Feldene to treat the dog’s condition. After the dog died of renal failure complications, plaintiff discovered that the Feldene prescription was mislabeled by the pharmacist. The Supreme Court, Appellate Division for the Third Judicial Department held that the allegations in plaintiff’s verified complaint sufficiently allege defendant’s wanton and reckless disregard of plaintiff’s rights to survive a motion to dismiss. Further, the court noted that while plaintiff did not appeal the dismissal of her cause of action for loss of companionship, the court made it clear that loss of companionship is not cognizable cause of action in the state of New York.

Documents:  pbusnylewisorder.pdf pbusnylewisapporder.pdf pbusnylewisamcbrief.pdf

In this case, the plaintiff brought her dog of nine years to a veterinarian and was given a prescription for an anti-inflammatory drug called Feldene to treat the dog’s condition.   The prescription was filled at defendant-pharmacist’s pharmacy, where it was labeled, “1 pill twice daily.”   Plaintiff’s dog subsequently became ill and ultimately suffered renal damage that eventually led to its death.   Plaintiff discovered that the Feldene prescription was mislabeled by the pharmacist and should have been prescribed for one pill every other day.   Plaintiff then commenced an action including causes of action for consumer fraud, negligence, and loss of companionship and also sought punitive damages.

In the decision and order issued by the New York State Supreme Court in the County of Ulster, the court first determined whether the previous decision misapprehended the law or facts given in the case (a previous decision was issued by the court on April 17,2001).   In doing so, the court reaffirmed its decision stating that there is no cause of action for loss of companionship of the companion animal in this case.   As to damages, the court reiterated previous holdings that damages are limited to the pet’s fair market value, which is determined on a case-by-case basis (i.e., the value of a guide dog or one with special training as opposed to an older, untrained dog).   The court did leave open the ability of plaintiff’s to issue new interrogatories thereby denying defendant’s request for a protective order under New York law that would have precluded answering new disclosure devices.

The Supreme Court, Appellate Division for the Third Judicial Department considered the appeal by defendant-pharmacist that denied defendant’s motion for partial summary judgment as to the lower court’s failure to dismiss the punitive damages claim.   After reciting the pertinent facts, the court held that the allegations in plaintiff’s verified complaint sufficiently allege defendant’s wanton and reckless disregard of plaintiff’s rights to survive a motion to dismiss.   Further, the court noted that while plaintiff did not appeal the dismissal of her cause of action for loss of companionship, loss of companionship is not cognizable cause of action in the state of New York.   Thus, the Supreme Court erred in allowing plaintiff the opportunity to present such proof for the sake of damages calculations at the time of trial.

The amicus brief submitted by the Animal Legal Defense Fund explored the historical roots of loss of companionship actions, from the evolution of loss of consortium of a spouse (pointing out that wives were once legally recognized as a husband’s chattel much like companion animals today) to actions for the loss of a child in more recent times.   The brief further outlined the judicial and legislative attempts in recognizing the human-companion animal bond as well as the psychological data that support the existence of this familial bond.   In essence, the brief urged the New York state court to recognize a cause of action and concomitant damages for the plaintiff’s loss of companionship for her dog Emily in this case.

 

 

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