ASCHAE’s DogBlog

Source: ConsumerAffairs.com, Mar 9, 2010

A 72-year-old dog owner has won what may be a landmark decision against the country’s leading maker of pet care products and fueled the ongoing debate over the safety of topical flea and tick treatments.

A Texas jury awarded Frank Bowers $4,440.75 in the small claims court action he filed against Hartz Mountain Corporation. In this David-versus-Goliath court battle — believed to be the first small claims court action of its kind — Bowers alleged that Hartz Ultra Guard Pro Flea and Tick Drops caused the death of his beloved Olde English Bulldog, Diesel.

The six-member jury deliberated less than 30 minutes before reaching a unanimous decision in favor of Bowers, who was widely considered the underdog in the case.

“When the bailiff walked in the courtroom and said we have a unanimous decision, I nearly passed out,” said Bowers, who represented himself in the court action. “The jury said ‘we find Mr. Bowers’ integrity outweighed what was presented by (Hartz) attorney. He lost an animal of value and all costs he’s out are awarded to him.’”

“I just literally went numb,” Bowers added. “I caught up with three jurors in the hallway after the hearing. All I said to them was: ‘thank you, thank you, thank you.’ And they just said: ‘we did our job.’”

Hartz told ConsumerAffairs.com that it believed the case was “without merit,” but did not appeal because of the time and cost involved.

Sense of justice

For Bowers, the jury’s decision brings closure and a sense of justice to an emotional issue that started at 8:30pm on August 7, 2008. On that warm summer night in Texas, Bowers applied Hartz Ultra Guard Pro Flea and Tick Drops to the 14-month-old, 68-pound, Diesel.

“I nipped off the top of the tube and put it on his back,” Bowers recalled. “I precisely used it as directed – nothing more, nothing less than directed.” By early the next morning Diesel had become gravelly ill.

“I went to my garage to work and I smelled this odor from excretion,” Bowers said. “Diesel was laying on the floor. He was shaking and having spasms of some kind. And he was passing a horrible odor of diarrhea.” Bowers called his daughter, who told him to immediately take the ailing dog to the vet.

Diesel’s health continued its rapid decline during the ride to his vet’s office, Bowers said.

“He continued to have bowel movements on the way. When we got to the vet’s office, he couldn’t walk. They got one of those stainless steel tables and took him back to an exam room.”

The veterinarian asked Bowers a battery of questions about Diesel, including one that caught him off guard.

“The vet asked me if I’d put any flea treatment on him,” Bowers said. “And I said: ‘yes, last night.’ I told him what it was and went back to the store to get a tube to show him.”

The vet, he said, took one look at the Hartz Ultra Guard Pro Flea and Tick Drops and shook his head. “He said: ‘Oh, my God. He’s going to have kidney failure.’”

By 4 o’clock the next morning, Diesel’s kidneys had shut down.

“He was in total renal failure,” Bowers said. “The vet wanted permission to euthanize him. I said you know what’s best and I don’t want any animal to suffer. “I picked Diesel up around 7am and took him out in the country and buried him on my daughter’s 10 acres.”

This painful chapter in Bowers’ life happened in less than 35 hours – from the night he applied the flea and tick drops to the morning of Diesel’s death.

He wanted answers

Bowers wanted answers. He wanted to know why Diesel’s health deteriorated so quickly.

The plain-spoken Texan went straight to the source. He called Hartz.

“But they did not care to discuss this with me,” Bowers said of the company’s customer service representatives. “They insinuated that I did something wrong. “At that point, I said my dog is dead and I need you pay. It’s about $4,000.”

Hartz balked at his suggestion, Bowers said.

“They said we won’t pay that, sir. It’s a risk you take when you use our products. I asked for this person’s supervisor, but she hung up on me.”

Bowers then sent the company a letter about Diesel’s death.

“I got no response,” he said. “This irritated me. They acted like I didn’t exist.

“About two months later, someone (from Hartz) called me and told me it was my fault (that Diesel died) or neglect that caused the death and they were not responsible.”

Bowers contacted a few attorneys to see if they’d take his case. “But none wished to be bothering Hartz as there was not enough money,” he said. The determined pet owner, however, didn’t give up or back down.

He took matters into his own hands and represented himself in court, specifically Small Claims Court, Precinct 3, in Travis County, Texas. Consumers in the Lone Star State can seek damages of up to $10,000 in their small claims court proceedings. Texas also allows jury trials in small claims court actions.

“I filed papers in small claims court,” said Bowers, who lives in Austin, Texas. “But the court called me a while later and said I needed to re-file my case because Hartz did not respond.”

Bowers filed his case again on July 28, 2009. “And this time, Hartz did respond to the court,” he said. “The court sent the company a registered and non-registered letter about my case. An attorney contacted the court and said she represented Hartz.”

The court wanted Bowers and Hartz to resolve the case through mediation. But that process wasn’t too productive, Bowers said.

“I looked at the girl (Hartz’ attorney) square in the eyes and said: ‘do you have a check for this amount — $4,400?’ She said no. I said ‘then this mediation is over. At this time, there is nothing to negotiate.’”

Bowers and Hartz’ attorney then went back and talked to the judge.

“The judge said we’ll have to reschedule for another appearance,” Bowers said. “But I told the judge that I wanted a trial by jury. She said that’s your privilege. The attorney (for Hartz) didn’t like it. She wanted to settle this between her and I.

“Here I am — 72-year-olds old. I have a high school education. I don’t have a law degree. But I still wanted a trial by jury. The judge asked me if I thought I could get a jury verdict in my favor and I said I wouldn’t be here if I didn’t.”

Day in court

Bowers’ day in court finally arrived on January 12, 2010.

Before the trial, each side had a chance to question a pool of potential jurors.

“I chose not to ask them any questions,” Bowers said. “But Hartz’ attorney kicked a few potential jurors off because they had pets. She also asked the jurors if they’d had any problems in the past with pet medications. She didn’t want any pet owners or people who had problems with pet medications on the jury. There were also no vets on the jury.”

In the end, a jury of three men and three women heard the case.

“The trial took less than two hours,” Bowers said. “I wasn’t able to tell the jury everything I wanted to.”

The judge, for example, wouldn’t allow Bowers to enter into evidence any of his Environmental Protection Agency (EPA) documents about the adverse reactions dogs and cats have experienced from topical flea and tick products. The vets he wanted to call as witnesses also couldn’t make it to court that day.

“I had no witnesses,” Bowers said. “I was riding the brass rail by myself.” And he was up against Hartz’ savvy attorney, who he learned had taken a special course on flea and tick products to prepare her for the case.

“Hartz had all kinds of statements about flea and tick products and they had everything notarized so it could be entered into evidence,” Bowers said. “I didn’t know I needed to do that (get documents notarized). Hartz had statements from their vets, too.”

During the trial, Hartz also cross-examined Bowers about Diesel’s death. He’s glad they did.

“That’s when I got in the information that they wouldn’t let me enter,” Bowers said. “I entered it by blurting it from the witness box. The attorney asked me a question like ‘how did I know it was Hartz that killed my animal?’ And I said Hartz has killed many other animals.

“The attorney was screaming to get me to shut up and I just kept talking,” Bowers added. “The judge then told me to shut up. At that point, I looked at the judge and said ‘I’m sorry.’ And then I looked at the jury and smiled.”

Used as directed?

Hartz’ attorney also suggested that Bowers didn’t apply the flea and tick drops as directed.

“They screamed that over and over,” Bowers said. “But I precisely used it as directed.”

Hartz and other makers of fleas and tick products often cite the misuse of these treatments for adverse reactions. Pet owners, they say, may put a flea and tick product intended for a dog on a cat. Or they may apply too much flea and tick product on their pets.

Last summer, the ASPCA’s Animal Poison Control Center also studied its data on topical flea and tick products. That study revealed the likelihood of severe adverse reactions was significantly less when dogs and cats were treated according to directions.

“From the data we have collected, the adverse reactions tend to be mild, like skin sensations and stomach upset,” the ASPCA’s Dr. Steven Hansen said after the organization released its study. “We don’t have very many cases of true neurological issues when these products are properly used.”

Bowers, however, repeatedly told ConsumerAffairs.com that he used the Hartz flea and ticks drops as directed when he applied them to Diesel. He also told us the court didn’t give him the chance to cross-examine any of Hartz’ witnesses during the trial. “I wasn’t asked to,” he said. “I asked the judge why I could ask any questions and she said ‘that’s procedure.’”

The jury, however, wasn’t swayed by the witnesses or documents Hartz used in its defense.

After deliberating for less than 30 minutes, the jurors ruled in Bowers favor.

“I didn’t know what to think when I heard that,” he said, adding the $4,440 he won covers the cost of Diesel and the dog’s vet bills. “I was dumbfounded.”

Bowers is convinced the jury sided with him because of one issue that surfaced during the trial: whether the chemical Phenothrin, which is in Hartz Ultra Guard Flea and Tick Drops, is the same or similar to the chemical Permethrin. Bowers said he argued that, according to his “carnal knowledge,” those two are the same chemical compound.

“I kid you not, that is the thing that saved my case,” he said.

Hartz vehemently disputes that contention, saying those are completely different ingredients.

“The trade name for Phenothrin is Sumithrin,” the company’s spokeswoman, Anne Isenhower, told ConsumerAffairs.com. “Permethrin is a completely different ingredient that Hartz does not use in any of our on-animal products in the United States.”

Hartz also downplayed Bowers’ allegations and the jury’s decision. “This case was without merit and the allegations weren’t supported by evidence (presented in the trial),” said Isenhower, senior vice president, with GolinHarris, Hartz’ public relations firm. Hartz, however, did not appeal the jury’s decision because of the time and cost involved to pursue such action, Isenhower said.

Asked if Bowers’ case marked the first time a consumer has successfully sued Hartz over one of its topical flea and tick products, Isenhower said: “Yes, we believe so. We are not aware of any verdict against Hartz flea & tick drops.”

She had an identical comment when asked if Bowers’ case was the first small claims court victory against Hartz. “Yes, we believe so. We are not aware of any verdict against Hartz flea & tick drops.”

Safety defended

In spite of the jury’s decision, Isenhower defended the safety of Hartz flea and tick products.

“We’ve conducted extensive analysis of the adverse event reporting on our products as well as all topic treatments in the market,” she said. “Although Hartz is the leader in flea and tick retail sales, we are less than three percent of all adverse effects reported to the EPA in 2008 for topical dog flea and tick treatments.”

The safety of topical or “spot-on” flea and tick products has come under “intensified” scrutiny by the EPA for the past 11 months.

The agency started that probe last April, saying it had received more than 44,000 reports of adverse reactions associated with spot-on flea and tick products.

“Adverse reactions reported range from mild effects such as skin irritation to more serious effects such as seizures and, in some cases, the death of the pet,” the EPA said.

Data delayed

The agency told ConsumerAffairs.com that it planned to release its findings last fall. The EPA, however, has since delayed that release date.

“Due to the large amount of data and the complex technical issues associated with the review of the data, our report is not ready for public release,” the agency’s spokesman, Dale Kemery, told us in December 2009. “We anticipate publicly releasing the document in early 2010.”

The EPA will post its findings about topical flea and tick products, and any regulatory action it may take, on its Web site.

In the meantime, animal experts recommend pet owners consult their veterinarians about which flea and tick product to use on their dogs or cats.

Beware

Back in Texas, Bowers warns pet owners to be “earthly” aware of any topical flea and tick products they put on their animals.

“I think I’ll utilize just plain soap and water,” he said. “I use Head and Shoulders shampoo on my dogs now. I bathe them every time I see them scratching. “We used to get Myrtle Bush when I was a child growing up in Louisiana,” he added. “It was a natural killer of fleas.”

Bowers is also keenly aware that his legal victory could have ripple effects in courtrooms across the country. He suspects his case may serve as a rallying call for other pet owners who’ve seen their dogs or cats suffer burns, blisters, seizures, neurological problems, or even die after using topical flea and tick products.

His case, he said, may open the floodgates for similar lawsuits nationwide.

“I think this case will make pet owners wonder why they have not gone forward with their cases in small claims court,” Bowers said. “And if they do, my advice to them if get a trial by jury; I would never accept a non-jury trial.”

The amount of money consumers can recover in small claims court varies by state. And some states do not allow trials by jury in small claims court. ConsumerAffairs.com has a comprehensive small claims court guide.