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. I have my own home-grown set of quotes to offer on this topic:

    “Where there is a sea of trouble, look to the lustrous beacon shone by a good lawyer” –Sudo A. Nonimus

    “A lawyer, a cat, a flagon of bitters–why that’s the good living, sirrah!” –Phineas Clagbottom

    “There be none so ill-tempered as can slight a red-brick don, or a Chapel Street barrister!” –M Anent Victoriun

    “Lawyers, it is widely heralded, stand like Jove, guarding the Hellesponte of civilization, against the encroachment of Darius and his perfidious tribe!” –Twill Guppy

    So there you have it. Lavish, if obscure, praises down the centuries!

    DW

  2. “Who needs some reference to some firecrackers on a a rail platform, when exploding hamsters are available.”

    Mespo,

    The hamster brings up some interesting justiciability issues as well.

    To wit:

    Would you agree that G. W. Bush had as much standing to obtain a Stay on 12/09/2000 as Richard Gere would have to litigate cases on behalf of hamsters everywhere?

    Shamelessly yours,

    Bob

  3. Men are men before they are lawyers, or physicians, or merchants, or manufacturers; and if you make them capable and sensible men, they will make themselves capable and sensible lawyers or physicians.

    John Stuart Mill : British economist & philosopher

    John Stuart Mill (1806 – 1873)

  4. Necessity knows no law; I know some attorneys of the same.
    Benjamin Franklin

    ——————————————————————–
    We all know here that the law is the most powerful of schools for the imagination. No poet ever interpreted nature as freely as a lawyer interprets the truth.
    Jean Giraudoux

    ——————————————————————–Lawyers are always more ready to get a man into troubles than out of them.
    William Goldsmith

    ——————————————————————–Lawyers are men whom we hire to protect us from lawyers.
    Elbert Hubbard

  5. Careful, those ‘fat boys’ aren’t parameciums – they’re pole cats.
    They eat hamsters for lunch.

  6. When two dogs fight for a bone, and the third runs off with it, there’s a lawyer among the dogs.

  7. D.W.,

    Don’t you mean parameciums WHO ARE are extremely wealthy attorneys? (And I still think the hamster consortium will sucessfully “call out” those “fat boy” attorneys!!!)

    J.

  8. Jill,

    According to Niblet’s cosmology, we can safely predict that not only hamsters perish but Earth’s very biosphere must soon collapse leaving only parameciums and extremely wealthy Attorneys!

    Hamsters can only survive the coming catastrophe by getting JD’s it would seem.

  9. No Way Niblet–Hamsters are way too smart for that. They’ve hired a P.R. firm to take out those crappy lawyers, and my money’s on the hamsters.

  10. My ears having been blessed with auditing the discussions on Mount Parnassus, were shocked by the cries of the fishmongers of Delos…

  11. Mespo:

    I have always been inclined to the Andrews opinion as well. The same can be said about the different approach under Polemis and Wagon Mound, with the latter coming closer to a Cardozo approach of foreseeability.

  12. Bob,Esq:

    Now, I have to agree that is a much more vivid example of the zone of danger than I have seen described in any dusty old legal opinion. Who needs some reference to some firecrackers on a a rail platform, when exploding hamsters are available.

  13. Now that is an image. For the members of PETA monitoring this site, no actual animals are harmed in the making of this blog.

  14. What if the hamster was put in a package of fireworks. Would the zone of danger be the blast radius of the hamster’s diseased body parts?

  15. oops, in my haste I got the last sentence backward (sorry in middle of a break in a dep and was distracted). Meant to reverse the clauses. Anyway, back to the dep.

  16. JT:
    That’s why I like Andrews’ position. Cardozo circumscribes the right of recovery for purely practical reasons. As anyone who has read Hume knows, cause and effect are difficult concepts, and proximate cause as distinguished from “but-for” causation is an artificial distinction fraught with subjective concepts of closeness in time or relation. With Andrews proposal, we have no problem with analyzing this case. Cardozo makes it more difficult since we have the foreseeability issue front and center. I think Andrews allows us to better adapt to new technology and new circumstances and that Cardozo straps us with concepts of foreseeability that force us to limit our analysis to the most obvious and hence most direct. Would anyone really argue with Andrews when he says that a person recklessly driving down Broadway owes only a duty to those he might foreseeably injury and not to us all if we can show harm resulting?

  17. Mespo:

    Excellent points as always. I have no difficulty with the idea of liability for selling LCMV-laden hamsters — presuming that tests are available. It is the the foreseeability of a transmission through a transplant that makes it more challenging. This may prove one of the most interesting torts cases in years.

    Jonathan

  18. JT:
    Well, obviously we can (fore)see much better now than we used to, with thanks to Justice Cardozo, of course. I am more in the camp of Justice Andrews who wrote the dissent in Palsgraff. To Andrews, “”everyone owes the world at large a duty of refraining from those acts that may unreasonably threaten the safety of others.” I don’t think this causes a “butterfly effect”, if read to include only those acts which society (in the person of the jury) concludes to be unreasonably dangerous when the particular knowledge and sensibilities of the defendant are considered. In this case, PetSmart presumably knew or should have known as a seller of hamsters, about the dangers inherent in their animals transferring LCMV to humans. Petsmart’s failure to test the animal or warn the buyer can reasonably be seen as negligence. Of course this is mere theory, the nuts and bolts come in proving the causation of the illness. However, you have to admire the creativity of the plaintiff’s attorney.

    Maybe one day we could discuss the beginnings of the negligence system on our blog. Most people think it was designed to protect the Plaintiff, just as they erroneously think workers compensation is designed to protect workers. Few realize plaintiff’s were much better served under the old law of the guest, and that the negligence system was put into effect during the Industrial Revolution to protect factory owners whose boilers had the nasty habit of exploding every now and again. Where have all the Charles Dickens’ gone?

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