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.