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. What’s the real question, Thingum?

    I get the feeling you are trying to compare Apple Computers and Orangutans!?

    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.

    Undoubtedly, had SHE, her family members, and/or her physicians known of her recent infection, or been notified of possible infection, would have acted upon such information appropriately, and in the first scenario, certainly, would have withheld her donation.

    Pet breeding facilities, distributors, and stores are regulated and these two in OH and AK had health and handling violations as noted in the Abstract I provided under Results (RI, OH, AK Traceback):

    http://www.cdc.gov/eid/content/13/5/719.htm?s_cid=eid719_e

  2. That is an excellent observation and it shows precisely what happens when the feds start poking around tort law and pre-empting centuries of developed state law in this area.

  3. Mespo, If as you say, and I agree, that for every harm there should be a remedy then how does federal pre-emption of state tort law fit into that….?

    I am thinking Riegel v Medtronics and the consolidated drug cases in the 3rd Circuit:

    http://www.ca3.uscourts.gov/opinarch/063107p.pdf

    It would seem there is no remedy for the injured families. Federal pre-emption exempts the drug manufacturers from liability, and the government itself cannot be practically sued.

    So isn’t the whole burgeoning field of pre-emption defenses cutting off remedies for a large class of citizens? Whats to be done?

  4. Bob,Esq:

    I guess we can agree to disagree on this threshold determination. I believe that the consequences flow directly from the negligence involving the sale and you believe that the organ donation interrupts the causal flow. Yours is a perfectly reasonable position and is more in line with the more restrictive view. I prefer the more expansive approach making defendants liable for all harms caused and not just direct harms. I believe my view more consistent with the general proposition that for every harm there should be a remedy, but I understand the view of many that this would inevitably lead to a butterfly effect.

  5. Patty C,

    That’s exactly the type of information I was looking for.

    Now the issue is narrowed down to whether or not an organ transplant is an intervening cause; breaking the chain of causation leading back to PetSmart.

    Regards,

    Bob

    P.S.

    http://www.unos.org/

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

  6. Mespo,

    Take a step back and listen to what you’re arguing:

    “Certainly infecting the original purchaser was foreseeable, and the issue raised is whether organ donations are likewise foreseeable such that the seller should realize that his defective product could be used to infect purchasers who might in turn donate diseased body parts to recipients who would likewise be infected.”

    Once again

    “the seller [of a hamster] should realize that his defective product could be used to infect purchasers who might in turn donate diseased body parts to recipients who would likewise be infected.”

    Now compare what you said above with what you said below:

    “It is also true that every precipitating cause must precede the resulting event in time so mere positioning of events will not imply they are unrelated either.”

    Note how we both use the word “precipitate”

    “the organ transplant is:

    1) Independent of the original cause; at the very least, the owner’s LCMV DID NOT PRECIPITATE OR NECESSITATE an organ transplant;

    2) A voluntary human action — with absolutely no nexus to the sale of the allegedly diseased Hamster. People choose to be organ donors and or recipients.

    3) Fails to occur within the same time frame as the original sale of the Hamster; since the sale of the Hamster failed to create a zone of danger for so much as the original owner.”

    Ignoring the issue of foreseeability, as you would prefer, unless you show me more, it appears Plaintiff is still left to rely on nothing more than Deus Ex Machina as an explanation for the nexus between the sale of a diseased Hamster and death by diseased organ transplant.

    Regards,

    Bob

  7. Patty C;

    Wow, Patty that should about resolve the causation in fact issue.

  8. You can forget the rest if you like…

    If you were the patient and your only chance at a life you could bear to live depended on a transplant, you might not consider it as #2 ‘voluntary’ – IF the only other choice was continued decline and suffering culminating in your certain death.

    You’d likely be ‘praying’ your match took the time to fill out a Donor card.

    http://www.cdc.gov/eid/content/13/5/719.htm?s_cid=eid719_e

    Discussion

    … This report documents the animal traceback investigation that linked a major pet rodent distribution operation to the recent outbreak of lymphocytic choriomeningitis in 4 organ transplant recipients in Rhode Island and Massachusetts. This investigation demonstrates the ways in which classic epidemiology, laboratory diagnostics, and molecular biology can complement one another in the investigation of disease clusters. LCMV was not found in the organ donor’s tissues; however, the viral isolate from the pet store hamster was sequenced and matched to the sequences of the isolates from the recipients (10).

    The near-complete sequence match between the virus found in the index hamster and the virus sequenced from the Ohio hamster indicates that the genotypes share a common lineage that is distinct from previously identified strains.

    It is unlikely that this genotype would be as similar to a genotype found in wild house mice in Rhode Island. Thus, the animal traceback, coupled with the molecular phylogenetic evidence, supports the hypothesis that the index hamster’s infection came from the rodent distribution center in Ohio, rather than from wild M. musculus populations around the home of the donor or pet store…

  9. Bob,Esq:

    As we all know, there are no gurus when it comes to issues of cause and effect, or legal causation for that matter. The owner’s choice to donate and the recipient’s choice to accept the organ are clearly independent of the sale. However if we assume arguendo Petsmart’s negligence in the sale, we should probably start by analyzing this as a products liability case. That is, did Petsmart put an inherently defective product into the stream of commerce such that it should be held liable to foreseeable users (Let’s use Cardozo’s framework) for harms sustained by them?

    I think the answer is clearly “yes” since the risk of harm of LCMV passes through the chain of transactions until a susceptible person is infected. Would it matter to you, if instead of transplanting organs of the diseased owner into the plaintiff, that the owner survived and merely re-sold the diseased creature to another unsuspecting buyer some weeks later? That buyer due to a particular susceptibility contracted the illness through association with the hamster and died from the virus. His administrator then sued Petsmart. Would you deny recovery to the second purchaser’s estate because of the remoteness in time from the original sale and the fact that no zone of danger was created?

    Under my analysis, the LCMV need not precipitate anything. The precipitating cause of harm was the negligence in selling the diseased animal. Certainly infecting the original purchaser was foreseeable, and the issue raised is whether organ donations are likewise foreseeable such that the seller should realize that his defective product could be used to infect purchasers who might in turn donate diseased body parts to recipients who would likewise be infected. I think we are right back to Palsgraf and Cardozo’s foreseeability based analysis versus Andrews’ consequence based one. If you adopt Cardozo, the argument for liability is weaker; Andrews’ logic provides an easy answer since the consequences of the negligence are easier to connect to the sale if foreseeability is not an issue. I think we are on opposite sides of this causation argument, because you adopt Cardozo’s logic and I prefer Andrews. If not tell me where I went wrong.

    Also, I understand your post hoc ergo propter hoc criticism which, of course, holds that just because one event precedes another does not imply that the first caused the latter. It is also true that every precipitating cause must precede the resulting event in time so mere positioning of events will not imply they are unrelated either. I am not sure then that this logical fallacy approach helps us much in determining either cause in fact or proximate cause in this context.

  10. Mespo,

    While I do enjoy a good hypothetical I’m having an extremely difficult time assenting to your argument without several informal fallacies relating to causation sounding alarms in my head.

    http://www.philosophypages.com/lg/e06b.htm#falcau

    Post hoc ergo propter hoc? (After this therefore because of this?)

    Once again the causal chain (as presented by J.T.)

    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.

    For argument’s sake, let’s forget everything the CDC has to say about the disease and simply focus on step #4.

    Assuming original owner in fact purchased a diseased Hamster from PetSmart, PetSmart would be liable for illness to original owner and even death resulting from medical malpractice or any other action causually connected to owner’s purchase of the hamster.

    But consider that the organ transplant is:

    1) Independent of the original cause; at the very least, the owner’s LCMV DID NOT precipitate or necessitate an organ transplant;

    2) A voluntary human action — with absolutely no nexus to the sale of the allegedly diseased Hamster. People choose to be organ donors and or recipients.

    3) Fails to occur within the same time frame as the original sale of the Hamster; since the sale of the Hamster failed to create a zone of danger for so much as the original owner.

    Like I said, I’m no torts guru, but the simple logic of causation on this one is quite troubling.

    Regards,

    Bob

  11. Patty C:

    That’s my understanding of it. Organ recipients with suppressed immune systems need protection too.

  12. It is the practice in liability cases to bring in all possible defendants at the time of filing suit.

    Correct me mespo, but as to the thin-skull standard, one takes one’s plaintiffs (victim) as you find them – in these cases having been in need of organ transplantation and concomitant immunosuppression.

  13. For those who missed this program on CSPAN, worth the hour, IMHO.

    http://www.c-spanarchives.org/library/index.php?main_page=product_video_info&products_id=204497-1

    Dr. Denis Cortese talked about the problems with the current health care system in America and how it should be overhauled. He talked about the different components that make up a functioning health care system, what the goals of that system should be, and how they can be achieved. Following his prepared remarks he answered questions from members of the audience

  14. Jill:

    Will try again and also do the Google. Sounds a dance doesn’t it?

  15. I googled “testing for LCMV in animals” and it was the 2nd entry. Others looked useful as well. Sorry Mespo, I’m not certain why it didn’t work.

    Jill

  16. Bob,Esq:

    Of course, if we accept all your facts as true and complete, causation in fact does present a significant problem. However, like a lot of my brethren on the defense side of things, you omit a few salient points. The article states that Magee was one of three people who died after the transplant of organs from the infected buyer, and perhaps more importantly, “[t]he immediate cause of Thomas Magee’s death was determined to have been the dissemination of LCMV in the liver he received.” Add those facts to yours and I believe we have a justiciable point, unless you think the Judge will determine is was mere coincidence that two other people died from the same cause after receiving tainted organs from the same infected donor who owned the infected hamster. I’d take my chances on those facts.

    However, and as you say, there is an open question of whether a test exists for PetSmart to determine the presence of this disease,which apparently does has meningitis-like symptoms. If so, I think they are duty bound to test or warn or face the consequences.

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