Mass Tort Update- |
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- Red Bank, NJ 732-747-9003
Mass Tort Update
Menasion vs. Value Pet Center
Date: September, 2002
Result: $ 1,200,000 Recovery Following Mediation
State: New Jersey
Facts: The plaintiff contended that the defendant pet store negligently kept white rats, used as snake food, in an unsecured container that was covered by a window screen only. The plaintiff contended that as a result, the nine-year-old female decedent was bit in the index finger as she was petting one of the rats while her mother was petting a guinea pig in a nearby cage. The plaintiff maintained that the bite caused the child to contract "Rat bite fever" which ultimately took her life some ten days after the bite and eight days after she developed symptoms. The plaintiff mother, who was present, made a Portee claim for severe emotional distress. The pet store had $ 1,000,000 in primary coverage.
The plaintiff would have also named the distributor and a farm that supplied the rats to the distributor as defendants. The plaintiff maintained that as the child and her mother were in the store to buy pet food, and as the mother was petting guinea pigs which were in a cage that was open at the top, the child attempted to pet one of the white rats that was stored in a nearby container and which was covered only by an unsecured window screen. The child was then bit in the finger by one of the rats. The mother related that when she advised a store employee of the incident, she was reassured that the rats were domesticated and did not pose a threat. The mother indicated that two days later, she awoke at 6:00 A.M. and found her daughter in the bathtub with a fever. After speaking with the family physician, the parents brought the child to the hospital where the physicians were advised of the rat bite. The child was discharged from the emergency room with medication to alleviate pain and bring the fever down. The plaintiff maintained that the child's condition deteriorated over the next day and that she had worsening complaints and displayed listlessness. After another call to the family physician, the parents brought the child back to the hospital.
The child became unconscious in the emergency room, was resuscitated and brought to the ICU where she was administered three different forms of IV antibiotics. The plaintiff maintained that despite the treatment, the child continued to deteriorate and her fever rose to as high as 107 and that she was transferred to CHOP. The child died several days thereafter. The plaintiff contended that the defendant pet store was negligent in the manner in which they stored the rats, and further contended in a products liability theory that the rats constituted a Defective Product. The plaintiff also named the distributor as a defendant on a products liability theory. The evidence reflected that the distributor had obtained the rats from one of four different farms and there was no means of identifying the particular farm which supplied the rat that bit the decedent. One of the farms had liability insurance. The plaintiff would have maintained that in this situation, where an allegedly Defective Product was supplied by one of a few companies in which it was impossible to determine which of the companies provided the product, then the plaintiff should be permitted to proceed on a "Market share" basis against the insured farm in which the jury would be permitted to assess liability against this defendant on the basis of the percentage of animals it supplied. The plaintiff pointed to dicta in a reported opinion which held that although such a basis for liability is not recognized in N.J., this theory could well be viable in the appropriate case.
The defendants denied that the child developed "Rat bite fever" or that the bite was related to her death. The defendants pointed out that none of the cultures returned positive for this bacteria. The plaintiff's two expert pathologists contended that obtaining such a culture would be extremely difficult unless either the rat or the cage it was in was available for a culture, especially since the initial antibiotic administration would tend to mask such an infection in the culture. The plaintiff's experts maintained that the incubation period was highly consistent with such a cause and that in the absence of any other probable explanation, it was very likely that the child died from an infection caused by the rat bite. The defendants' initial infectious disease specialist denied that there was sufficient evidence from which to draw such a conclusion.
The defendants' second infectious disease expert contended that based upon lab studies from a month prior to the incident which showed bacteria in the decedent's urine, it was likely that the child suffered toxic shock syndrome associated with such bacteria and unrelated to the pet store incident. The plaintiff's vigorously disputed this defense position and contended that the incubation period was much more consistent with the plaintiff's theory. The plaintiff also contended that although there was a recent incident in which the child had been scratched by a pet rabbit, tests on the rabbit ruled out such a potential cause. The plaintiff contended that the decedent's pain and suffering was severe and that the records reflected that the child required numerous invasive procedures. The defendants maintained that the child was unconscious during much of this period. The plaintiff additionally contended that the child would have been a source of significant guidance, companionship and advice to her family and that she would have provided a substantial amount of help around the house.
The mother contended that her observations of the incident and its aftermath caused severe emotional distress and she made a claim under Portee vs. Jaffee. The defendants contended that the actual bite was not sufficiently traumatic to support a Portee claim, especially since the symptoms did not develop until two days later. The plaintiff contended that the incident itself was highly traumatic and that the emotional anguish continued from that point on. The plaintiff would have presented an expert psychiatrist to discuss a severe continuing emotional reaction which commenced at the time of the bite and who would have maintained that such reaction was permanent in nature. The parties agreed on a $ 1,200,000 settlement after a mediation and before suit was filed and the settlement was subsequently approved in a hearing for distribution and approval of wrongful death proceeds. The settlement included $ 1,000,000 from the pet store, $ 150,000 from the distributor and $ 50,000 from the farm. The settlement was apportioned as follows: 40% for the wrongful death claim, 35% for the survival claim and 25% to the mother for her Portee claim.
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