Richard L. Cupp Jr.

is associate dean for research and the John W. Wade Professor of Law

at Pepperdine University

Only 33 percent of Americans think pet owners should be able to sue for emotional-distress damages when their animals are wrongfully killed, according to a Gallup poll conducted this month.

Courts should share this skepticism. Treating pets too much like children may be hazardous to their health - at least when lawsuits are involved.

Dozens of suits already have been filed related to the still-unfolding tainted-pet-food case. Those lawsuits raise again the difficult question of how courts should value the life of a pet.

Many animal-rights activists argue that the death of a pet is analogous to the death of a child. When children are wrongfully killed, many courts award emotional-distress damages to parents. However, when animals - including pets - are wrongfully killed, courts traditionally award only market value as damages. Activists increasingly demand that courts treat pets more like children by awarding their human "parents" emotional-distress compensation.

This argument has powerful emotional appeal. My 14-year-old dog Shasta, whom my now-deceased parents regularly included among their "grandchildren" in annual Christmas letters, is infinitely more than mere property. When he passes away, my emotional distress will be very real. Most other pet owners feel the same way.

However, expanding damages in negligence cases would likely cause unintended harm. It could raise the cost of veterinary medical care to prices fewer pet owners would be willing to pay. Humans who own wrongfully killed pets would get a financial payoff, but at the cost of increasing suffering and death among pets overall.

Despite the recent publicity over tainted-food cases, food cases harming large numbers of pets are rare. Most pet-death lawsuits involve veterinary errors.

Consumer demand for veterinary medicine works differently from consumer demand for human medicine. Price does not influence demand for most services for humans. If a child needs surgery, most parents would sell everything they have to pay for it. Also, human medicine is supported by the massive health-insurance industry.

Demand for veterinary services, however, is much more sensitive to price. If prices increase even a little, some pets will suffer and die, as owners opt out of treating them. In a 1999 study commissioned by the veterinary medical associations, pet owners said they would pay up to $688 for treatment if there were a 75 percent chance of success and up to $356 if there were a 10 percent chance of success.

The study also found that a 10 percent increase in price would decrease demand for veterinary services by 4.3 percent.

If U.S. veterinary medicine were, on the whole, very bad, the argument for expanding emotional-distress damages would be stronger. In such a scenario, the added incentive for veterinarians to be careful might balance out the decrease in demand that would follow higher prices.

To the contrary, most Americans consider current veterinary medicine to be quite good. Veterinarians routinely score in the upper rungs of surveys of the most respected professions in America. (You'll pardon my omission of lawyers' rankings.)

In the current tainted-food tragedy, estimated to have sickened or killed thousands of pets, lawyers have recently alleged that at least one manufacturer engaged in fraud through intentionally delaying its recall. In intentional-misconduct cases, allowing emotional distress damages is much less problematic than in negligence cases. Medical care for pets rarely involves intentional misconduct. Infrequent awards of emotional-distress damages against malevolent veterinarians (but not against merely negligent veterinarians) would not likely raise the overall price of medical services.

Thus, whether emotional-distress damages should be permitted in lawsuits against pet food manufacturers may boil down to whether their conduct was negligent or fraudulent. If manufacturers were negligent but intentional misconduct did not take place, awarding emotional-distress damages could harm, rather than help, pets.

Contact Richard L. Cupp Jr. at richard.cupp@pepperdine.edu.