The Hamster Did It: PetSmart Sued Over Diseased Hamster in Wrongful Death Action

Massachusetts widow, Nancy Magee, is suing PetSmart in an extremely novel tort case, claiming that the original owner contracted lymphocytic choriomeningitis (LCMV) from the hamster and then passed it along when her organs were transplanted in Thomas J. Magee. It is a proximate cause case that makes Palsgraf look positively simple in comparison. It is, however, only the latest in a series of interesting transplant cases recently.

Here is the basic causal chain.

1. The original woman buys hamster at PetSmart.

2. Hamster allegedly infects new owner with LCMV, a rodent-borne viral infectious disease.

3. The original owner then dies of unrelated stroke.

4. Dead owner’s organs are transplanted into various recipients including Thomas Magee, who has a liver transplant at Massachusetts General Hospital in April 2005. .

5. Magee contracted LCMV and dies.

Magee is now suing PetSmart for selling a third party a diseased rodent. We have come a long way from the time when privity (or a direct contractual relation) is required to sue for a product defect. Now, if you are injured by a Ford Pinto blowing up, you can recover even if you are not the owner and was injured as a pedestrian. Here, Magee is claiming that she (and obviously her husband) were the victims of the defective hamster. Whether this is a product liability or negligence case, it unclear.

The test, however, will come down to proximate causation and whether the chain of causation is too attenuated to hold PetSmart for an illness from a transplant involving a third party.

Factual causation is also likely to be challenged as to whether it is clear that this hamster was the only possible source of LCMV.

Finally, there is the question of the hospital liability. Recently, we have seen other cases involving the transplanting of cancerous organs (though this may be more difficult to spot), click here and here.

For the full story, click here.

76 thoughts on “The Hamster Did It: PetSmart Sued Over Diseased Hamster in Wrongful Death Action”

  1. binx101:

    Right you are. I recall Hillary also telling us that if businesses failed because of her health care plan it wasn’t her fault if they were “under-capitalized.” Wonder how she’d look in a white beehive wig pulled up three feet or so with pads spouting the memorable line “Qu’ils mangent de la brioche”. Feels your pain,indeed!

  2. Hang on – Fluffy has point !!

    The man needs to be punished for being ill. After all, that’s the current American way isn’t it. Isn’t that what all the health-care talk is all about – Americans going out and getting themselves sick and expecting other folks to pay for it. Now what, suing Pet Smart ??

    No no , Fluffy has a point – this guy got sick … its his fault.

    Where have you been Mespo? That’s been almost the verbatim line from the White House since Hillary passed on a health-care starter deal in 1994 because it was bi-partisan, even though Pat Moynihan begged her. George Bush has perfected it and now we all enjoy …. ah … Wait – I don’t know what I’m talking about just like Fluffy. Maybe I’m sick.

    I was watching ABC last night and saw a parody of a Democratic debate. Those actors looked just like Obama and Clinton. I think though, the Skipper and Little Buddy played themselves – but I could have sworn the were dead.

    Any way … oh … never mind. I better call the Bank – I’m not feeling well.

  3. I think the Hamster was at fault. Criminally negligent in fact! It had good reason to know it carried a disease and should have jumped out of its little box when it was taken to the new owner’s home, and headed for the tall timber. That would have been the responsible course of action for any ethical hamster.

    But no, it hung around and caused a chain of tragedy.

    Bad hamster!

  4. Fluffy:

    Come on Fluffy, have a little fun and lighten up. How does it affect you if this lady brings suit to test the law. There are few suits against the oil companies, comparatively speaking, for tortious conduct (and if there are the Supreme Court flushes them any way) and my gas tank costs three times as much to fill as when Clinton was in office (Ah, remember the good old $19.00 a barrel oil). The cost of goods has little relationship to the costs of litigation despite the propaganda. If it were true wouldn’t goods in Europe be significantly cheaper (on a currency adjusted basis) than goods here since they have significant restrictions on lawsuits. Check out the BMW dealership here or there if you need proof. They get sued all the time.

  5. I agree with the lawsuit. Hamster’s are vicious rodents. In fact one bit me on my finger when I was a youngen and left a scar. My parents purchased the long hair hamster at Pet Smart and because of the stress this Hamster caused me I am now suffering from PDSD. I should sue Pet Smart too.

    Come on give me a break! Is our society really coming to this. And you wonder why everything is so expensive because of sue happy people like this. Maybe if her husband was healthy he wouldn’t of needed a transplant. Ever think of that????

  6. Mespo,

    “You need to move that case here.”

    Virginia?

    That’s His Lordship (Scalia)’s home state. Besides, the only time I ever spent in Virginia was in Dumfries; when a friend of mine who was driving with me down to Ft. Lauderdale began vomiting up yellow gel–producing a nice pinstripe design on my car. Some people think “Old Dominion” when they think of Virginia, I think “Yellow Gel.”

    “I can assure you sanctions would be had, and this re-argument of the re-argument would have been nipped in the bud long ago.”

    In responding to this, and the rest of your post, I used the opportunity to sketch out a draft letter to the presiding judge of the Appellate Division 2nd Department explaining my problem and requesting advice as an officer of the court. This condensed form of the story is nearly four pages long.

    Since your posts seem to indicate you’re far better versed in tort law than yours truly, I was wondering whether you’d take a look at it let me know if I’d have a viable claim in fraud against Plaintiff’s attorney – since the NY code of ethics and my own conscience constrained me to suffer the damages caused by Plaintiff’s attorney’s frivolous litigation, in lieu of passing them on to my client.

    You can email me at SOLIPSIST@MYSELF.COM with your answer; but be sure to put “mespo727272” in the subject line.

    Regards,

    Bob

    P.S.

    Try not to think too hard about the email address; I just got lucky being the first one to pick it.

    Or…

    Maybe….

    I’m am the solipsist?

    lol

  7. Bob,Esq,:

    You need to move that case here. I can assure you sanctions would be had, and this re-argument of the re-argument would have been nipped in the bud long ago. The most stupefying thing you’ve said is the action of the trial court overruling the appellate court. Here a petition for mandamus would have been filed with our Supreme Court (our highest appellate court) and an order would have issued post-haste handling the second judge’s actions. He would have also gotten a call from the Judicial Inquiry and Review Board as well.

  8. Mespo,

    “How could the lower court allow the fraud a second time at the re-trial?”

    The third fraud consisted of opposing counsel seeking the same exact relief that was denied by the appellate court; i.e. acting and representing to the court as if he had no knowledge the most basic rules of procedure as well as the Appellate Division 2d Department said he could not.

    You should be asking “How the hell did a trial court overturn an Appellate Court decision?”

    The second fraud (in aggregate) and the first fraud are a bit more complicated and set the background for the original appeal.

    If you’re interested I could email you the details, but for now, let’s just say that CPLR 306-b is a motion, if granted, allows plaintiff time to “re-serve” the papers and commence a new action if the previous one has been dismissed and the statute of limitations has ran out.

    Quickly, the judge denied plaintiff’s motion for relief under 306-b and “sent the remainder of the motions down for traverse.”

    I’m not sure how they run things in Virginia, but in New York one judge is not permitted to overturn another judge of coordinate jurisdiction. Ya sort of pick up on it during the first week of law school.

    Anyway, Defendant’s counsel uses the Traverse Hearing as an invitation to re-argue his 306-b motion; even in the face of a signed order handed to the J.H.O. Bastard even argued new case law.

    J.H.O. (wrongly) claims he’s familiar with the case, says that service on the day in question was improper (i.e. I won) but… “DEEMED SERVICE PROPER IN THE INTERESTS OF JUSTICE” under 306-b.

    Plaintiff’s Counsel knew the rule never empowered a judge to “deem service effective” and he also knew he wasn’t allowed to re-argue the issue–having been already smacked down by the judge’s previous ruling.

    Appellate Division rules as follows:

    http://www.courts.state.ny.us/reporter/3dseries/2006/2006_03525.htm

    In my appeal I argued for sanctions; and since appellate courts do not bother themselves with issues of fact, my best guess was that they left the motion open and pending for an inquest for costs–SINCE IT WAS A METAPHYSICAL IMPOSSIBILITY FOR PLAINTIFF TO RESURRECT THE CAUSE OF ACTION.

    Nonetheless, Plaintff’s attorney did the same thing back in Brooklyn Supreme he did before the J.H.O. during Traverse; re-argued the 306-b. I submitted the appellate decision, all the patently obvious arguments disallowing Plaintiff’s request, and two f’n days before the judge was to run out of time to issue a ruling, he “deemed service of process effective” nunc pro tunc. It’s an amusing ruling, since the Appellate Division specifically said it was impossible.

    Yet the case goes on …. first seeking a $10,000,000 default judgment; now going again for a &49,000,000 initial claim.

    I haven’t filed any papers since the last ruling; since not an attorney or clerk has any idea how I should proceed at this point. You may think me stupid for not opposing, but this is a pure LACK OF SUBJECT MATTER JURISDICTION problem — and that objection my friend is NEVER WAIVED. So why destroy myself further by throwing paper at this??

    “Do you not have a statute in your state that requires counsel to certify good faith in the filing of his pleadings as we do in Va?”

    Sure; and it also says that judges will sanction attorneys who continue with frivolous litigation. At this point, I believe more in the Easter Bunny.

    Regards,

    Bob

  9. For the ‘S/P TX’ Requisitioned’ ie ‘Status Post-Transplant’ patient and family, that moniker rules their days ‘In-House’ AND ‘Out’
    – until they realize it doesn’t have to feel like that as long as they have some tangible support.

    At times like this, the gathering together means a lot.

  10. Bob,Esq:

    You know you are clearly correct that the better case was probably against the supplier of the donor organ. If that’s what you meant by the superseding, intervening cause, I have to agree that would be a significant hurdle to overcome since your ascribed negligence for failure to test or warn would be exactly the same as against Petsmart, assuming test were available.

    I am even more intrigued by your case though. How could the lower court allow the fraud a second time at the re-trial? Do you not have a statute in your state that requires counsel to certify good faith in the filing of his pleadings as we do in Va? Hopefully, your case wasn’t tried here.

    Lastly, I have often wondered if motorcycles were so inherently dangerous that no warning could get their manufacturers off the hook. They remind me of the the three wheel ATV’s that were driven from the market by lawsuits and the better designed 4-wheelers.

  11. Patty C,

    “Suffice it to say the original buyer, and subsequent decedent of a stroke and NOT a compromised immune system, did not choose to become infected with LCMV at the point of sale – just weeks before she became an organ donor.”

    When people CHOOSE to be organ recipients, they take drugs that suppress their immune system to avoid organ rejection.

    The organ recipients place their trust in the doctors & other health care professionals responsible for the transplant; not some pet shop that sold a hamster to the organ donor.

    While we’re at it, why don’t we sue the manufacturers of “donor cycles” — a/k/a motor cycles?

    Why not hold motor cycle manufacturers responsible for defective cycles resulting in the deaths of organ recipients because the bike didn’t ‘fall the right way’ and damaged said organs???

    Where does it stop?

    Regards,

    Bob

  12. Mespo,

    Don’t get me wrong. I too agree that
    i summum jus summa injuria —
    the strictest right is the greatest wrong. Thus the reason we initially separated courts of equity from courts of law.

    But why sue PetSmart? Did the plaintiff allow the statute of limitations to run on a Med Mal suit? Not sure what it is in RI, but in NY it’s 2.5 years (plus normal tolling exceptions).

    If I seem to take a more conservative approach to plaintiff’s attorneys in tort actions, it may be due in no small part to having to deal with a law firm that has no less than three occasions defrauded the court forcing me to take an appeal to the state’s second highest court, winning, and then having plaintiff’s attorney go back to the lower court and commit the same exact fraud and achieve the same exact victory that was overturned in the appellate division.

    Care to make the argument that ‘opposing counsel defrauding the court’ is a reasonable foreseeable cost in litigation to a client?

    Who foots the bill?

    Can the attorney for the defendant sue opposing counsel in fraud?

    I say yes with the rarely available punitive damages in fraud as well.

    Regards,

    Bob

    P.S.

    I agree with your agreement to disagree on the rodent.

  13. Bob,Esq:

    “Every time someone sells a hamster, they’re now selling it to 9,000,000 potential plaintiffs across the entire United States??”

    **************************

    This is an interesting point. I think more properly said every time you sell a hamster you are warranting it to be free from defects such that anyone adversely affected may sue you if harmed and that could potentially be anyone coming into contact with the hamster. Why should all those harmed by the defective hamster be denied compensation because they were remote from the sale? Should Ford only be liable to the purchaser of the defective vehicle and not to the those buying the car used? Are we back to privity as a precondition for recovery?

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