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February 2010
HARTZ DEFEATED IN JURY TRIAL
In a significant victory for pet owners and consumers -- including animal advocates, courageous veterinarians, vet technicians and everyone concerned with adverse health affects of pesticide products -- Hartz Mountain Corporation was defeated in a jury trial
on January 12, 2010, in Austin, Texas.
Mr. Frank Bowers, of Austin, pursued his legal rights after losing his Olde English Bulldog (that was fourteen months old) to Hartz's flea and tick product in August of 2008. The trial, case number 015246, was held in Travis County, Precinct 3, presided by Judge Susan Steeg and heard by a jury panel of six. The jury deliberated only 20 minutes and returned the verdict in favor of Mr. Bowers.
Mr. Bowers, after unsuccessfully attempting to resolve his problems with Hartz without
legal action, courageously moved forward and sought relief through our justice system. He should be commended and applauded for his courage, preparation and determination in taking on a corporation that has much more resources.
Everyone that has been harmed by Hartz Mountain, Sergeant's, BioSpot, Zodiac or any other manufacturer or enabler of these lethal products should be inspired and encouraged by the actions of Mr. Bowers and a jury of his peers. The jury had no trouble quickly discerning the facts--something the Environmental Protection Agency (EPA), which registers the products, and major retailers that enable their distribution, have recklessly ignored for many years.
A significant and important victory for companion animals and their guardians. A jury of average citizens believed that, in fact, these pesticide products can cause serious injury
or death, even when used according to manufacturer's directions, and someone is going
to be held accountable.
Anonymous 2/19/10
Here are some additional details regarding this case:
The product that Frank Bowers used was Hartz UltraGuard Pro. The product was applied in the evening. No symptoms were noticed until the next morning when Mr. Bowers took
his dog on their morning walk. His dog seemed unusually lethargic, no energy. About 2/3 of the way home he could no longer walk; just laid on the road. The dog was 67 lbs. so
Mr. Bowers could not carry him home...he ran home and got his truck and took him home.
Incidentally, the temperature was only 67 degrees...it was 6 a.m. I mention this because
the Hartz attorney brought up the potential for heat exhaustion. Mr. Bowers had brought
the newspaper's weather information as part of his evidence expecting this tactic.
Later in the day the dog had diarrhea, could not stand on his own, salivating, eyes rolling. Mr. Bowers took him to the vet where they started intravenous. His condition worsened
and by the next morning the vets told Mr. Bowers that the dog had complete kidney failure and potential liver damage. They said there was nothing they could do for him and Mr. Bowers authorized he be euthanized.
This lawsuit was a small claims court action. Small claims court suits can be filed in the location where the damage was incurred versus the manufacturer's location. The dollar maximum for small claims in Texas is $10,000, but that amount varies state by state.
Amazingly, Mr. Bowers represented himself, he did not hire an attorney. That's not unusual in small claims court. He requested a jury trial which is the plaintiff's prerogative in Texas.
It doesn't have to be a jury trial but that's what he wanted.
The Hartz attorney spent six weeks being tutored by a veterinarian in preparation for the case. She used her peremptory challenges to remove four potential jurors (the limit in
small claims court) because they were pet owners. Additionally, 3 out of the 4 raised their hands when she asked them if anyone had experienced a problem with flea and tick products! Mr. Bowers did not dismiss any potential jurors.
Mr. Bowers had an extensive amount of documentation that he wanted to enter as evidence. He had an expert opinion by a DVM with an advanced veterinary teaching degree that supported his case. This expert witness, who did not attend to Mr. Bower's
dog during the crisis but did review the work of the two attending veterinarians, wrote a deposition but did not appear in person. He also added a lot of academic expert opinion about these products and the risks of the pesticide ingredients.
Mr. Bowers also submitted statements from the two attending veterinarians. They said
his dog's symptoms were a reaction to the ingredient "permethrin" in Hartz's flea and tick product. Hartz's attorney stated that Hartz does not use permethrin in their flea and tick products, they use "phenothrin". Therefore, she was discrediting the medical opinions
of the two veterinarians.
Mr. Bowers had a friend in the courtroom who is a close friend of someone who teaches veterinary medicine at the University of Texas (also taught at Texas A & M and a community college). During a break in court proceedings, they called the professor and he told them that phenothrin is a patented ingredient and produced by Hartz Mountain and there is no significant medical difference between permethrin and phenothrin on animal neurosystems. He told Mr. Bowers to tell the judge and jury that they are "one and the same" and they are capable of causing damage, including death. Mr. Bowers went back to the courtroom and introduced the professor by name and credentials and stated exactly what the professor had told him. The judge accepted this opinion into evidence.
The Hartz attorney objected to much of the documentation that Mr. Bowers wanted to introduce as evidence--much of it from the EPA, quite a bit of research he copied from
the internet and other sources. The Hartz attorney was successful in getting 84 documents tossed out for various reasons, some technical, i.e., the court wouldn't accept copies of documents pulled from the internet, almost all other documents also had to be the originals, some for other reasons where the judge upheld the defense's objections.
Hartz's attorney spoke a lot about only a very small percentage of animals potentially being adversely impacted, and most of those had some underlying disease or predisposed condition that put them at a higher risk. She relied heavily on the EPA registration process protecting consumers and pets, and spoke a lot about the testing and quality processes. She also spoke about most cases of adverse incidents being caused by the consumer in terms of misapplication, wrong product, etc., etc., attempting to place doubt in the jurors minds about whether or not Mr. Bowers had misapplied the product.
Mr. Bowers was interrupted many times by the Hartz attorney's objections and the judge almost always ruled Mr. Bowers out of order and sustained her objections. The judge told the jury several times to disregard Mr. Bowers' comments. However, when the verdict was read, which was a unanimous decision in favor of Mr. Bowers, the Hartz attorney was slack-jawed and stunned...she just couldn't believe it.
Hartz had 10 business days after the jury verdict to appeal the case and they chose not
to do so.
How to Sue in Small Claims Court (the law for each state varies)
ConsumerAffairs.com posted an outstanding article on this story on March 9, 2010:
YOU MUST READ THIS!!!
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DISCLAIMER: Below are messages that I have received from others whose dogs and cats experienced adverse reactions after using flea control products. I have no way of knowing if the information in these messages is factual, or if the products they used were the actual cause of the adverse reactions.
