As Goliath lay dying, Michelle Nocito told him she was sorry.
Twice a day, she had fed the 9-year-old Italian mastiff a heaping bowl of Nutro Max chow. One hundred twenty pounds of hearty appetite, he always wolfed it down. Only after his kidneys failed did she learn that the brand was among dozens suspected of chemical contamination. By then, it was too late. On March 27, she had to have him put down.
To the grieving, guilt-ridden Nocito, both she and Goliath had become victims in the largest pet-food recall in history. Today, the Voorhees woman also is a plaintiff in what is quickly building into the largest wave of animal litigation ever to sweep into the American court system - one sure to pit ancient legal notions of an animal's practical worth against the emotional value of the new "fur kids" like Goliath.
Attorneys for hundreds of pet owners nationwide already have taken aim at some of the companies that have recalled more than 120 varieties of dog and cat food since March 16. By far, the target of choice is Menu Foods Inc., the Canada-based manufacturer of about 100 of the tainted product lines.
As of Friday, at least 50 class-action lawsuits had been filed in federal courts; most are in New Jersey, where Menu has a Pennsauken plant. State courts are likely to be hit, too. For while the Food and Drug Administration has confirmed only 16 deaths, informal tallies by veterinary groups and pet Web sites put fatalities above 3,000, with possibly 10,000 more sickened after eating batches made with melamine-tainted wheat gluten from China.
Only days ago, panic struck again with the recall of rice protein, also from China, shipped to U.S. pet-food makers. The importer said it, too, might contain melamine, used in fertilizers and plastics.
"It's just getting bigger and bigger," said Casey Srogoncik, a Northeast Philadelphia lawyer who is gathering up clients.
The owners' lawsuits seek compensation for costs ranging from burials to ongoing care of survivors. State Rep. Mark Cohen and his wife, Mona, of Northeast Philadelphia, nearly lost their Yorkie bichon, Cookie. They've joined a federal class-action lawsuit that, while typically not stating a specific dollar amount, asks for such relief as a fund for medical monitoring and treatment of lingering health problems.
How about a kidney transplant for Baby? Debra Waldauer, of Fort Walton Beach, Fla., has signed on to one of the class actions in hopes of getting Menu Foods to pick up the tab - usually about $5,000 - for her black cat's surgery.
But the big-ticket question is not who will pay the vet bills, legal experts say. It's whether owners will be entitled to damages for emotional distress.
Historically, courts have viewed animals as property, with bottom-line market value.
"Few judges have allowed owners - or guardians, as we call them - to recover for the [emotional] value of the dog or cat to that person," said Joyce Tischler, founding director of the nonprofit Animal Legal Defense Fund, an advocacy group based in California.
If judges are of a mind to plow new legal ground, "then there is money to be made in those lawsuits," she said. If not, "then you'll see [them] settle out very fast."
A Menu Foods spokeswoman told The Inquirer last week that the company had no comment on the suits. Nor did Del Monte Pet Products, named in one federal class action. A Nestle Purina spokesman said he knew of a few pet-food lawsuits against the company, but also declined to comment.
Plaintiffs' lawyers have not been nearly so reticent.
Some have built reputations as champions of animal rights, and see the litigation as an opportunity to advance their crusade. They include the likes of Adam P. Karp, professor of animal law at the University of Seattle and the University of Washington and vice chairman of the American Bar Association's animal-law committee. He has filed a suit on behalf of a couple whose dog, Shasta, died after eating chow made with the suspect wheat gluten from China.
A deluge of cases, Karp said, "will force courts everywhere, simultaneously, to really wrestle with these core questions" of animals' value as companions.
The recall also has drawn lawyers who specialize in class-action and mass-tort cases involving injury to complainants of the two-legged variety, such as the gargantuan litigation over the diet drug fen-phen and the pain reliever Vioxx.
For the Menu Foods filings, they are pulling in plaintiffs through Internet ads.
William Audet, a San Francisco lawyer who already has filed three federal suits on behalf of hundreds of owners, has a memorial page on his law firm's site. There, clients can post photos and eulogize departed pets. As of Friday, it held homages to ChaChee, Taco Bell, Jesse James, and 85 others.
Margie Hilgreen of Northeast Philadelphia lost her toy fox terrier, Sarah Lee, last month.
"[Pets] become your children," she said. "You can talk to them all the time, and they don't sass you back. They listen to all your problems."
Hilgreen said she wanted Menu held accountable not only for the death of "my baby" but also for any delay in notifying the public that something might have been wrong with the food.
Speculation about a time gap has heightened since the recent disclosure that Menu's chief financial officer, Mark Wiens, sold nearly half his shares in the company three weeks before the first recall announcement. The stock, which brought almost $90,000 then, would be worth about $53,000 now.
A Menu spokesman denied a connection, telling the Associated Press that the CFO "feels just awful that this link has been made."
Nonetheless, the question of "what they knew and when they knew it" could help propel the pet owners' lawsuits, said Carl Tobias, a University of Richmond law professor and mass-tort expert.
It will still be a tough road, he added. Legal fees can quickly drain the resources of plaintiffs who go it alone. In the economy-size class actions, lawyers generally take their cut from any monetary award. But those cases cannot even get into court unless the lawyers show that their many clients share "common issues," directly linking the pets' illnesses to the recalled brands.
Because individual animals might have eaten other foods, suffered other diseases, and been affected by a myriad of other factors such as old age, "I think it's going to be fairly difficult to prove," Tobias said.
If the owners get over that hurdle, larger ones loom - with the possibility, at least one expert cautions, of a double-edged dog bone at the end.
Western judicial views on animals' worth are rooted - some would say mired - in antiquity.
Plato, a vegetarian, argued that animals should be treated with respect. But Greece's philosophical rank and file asserted they had been created to benefit humans and were property.
That concept has stuck for millennia, even as animals have migrated from the barnyard to the backyard to the master bedroom. An estimated 60 million to 70 million U.S. households have cats or dogs or both, but "the legal system has really lagged behind how people feel," said Jonathan Lovvorn, vice president of animal-protection litigation for the Humane Society of the United States, in Washington.
Animals in Europe have fared somewhat better recently than their American cohorts. In 2002, Germany included animal rights in its constitution. In 2005, France enhanced their status in its civil code by making them "protected property."
But even in the United States, a movement within the legal profession to win them rights and protections has picked up such steam, Lovvorn said, that it is the "hot public-interest ticket."
The Humane Society can call on a stable of at least 500 lawyers to litigate a burgeoning caseload, often involving mistreatment of farm animals. Many, Lovvorn added, work pro bono.
Law schools now routinely teach animal law; at least a handful have animal-law litigation centers. The Animal Legal Defense Fund has student chapters at the law schools of the University of Pennsylvania and Pennsylvania State, Temple, Rutgers, Villanova and Widener Universities. Last month, Harvard University hosted a sold-out conference on the "Future of Animal Law."
As more counselors take up the cudgels, some courts have opened the door to the edgy issues of emotional distress. And they've allowed animals to be cast as higher-value property - in much the same way that an heirloom broach is worth far more to its owner than the $10 of tin with which it was made, said Gary Francione, a Rutgers University professor who specializes in animal law.
A California jury awarded $30,000 in "special value" damages for a dog that died in a veterinarian's care; the dog's fair-market value was $10.
In Oregon, a jury awarded $5,000 in damages for emotional distress to the owner of Max, a cat set afire by a local youth. The state Court of Appeals last year not only upheld the award but set a new legal principle: "malicious injury to a pet" can be factored into damages for emotional distress.
"I don't believe courts are blind to the emotional attachment that people have" for pets, said Alan Calnan, a law professor at Southwestern Law School in Los Angeles.
But at the same time, he said, many judges are "very fearful" of setting off an inevitable stampede of claims.
The pet-food recall appears to be doing it for them.
Calnan also cautioned that more courtroom clout for animals could mean problems for humans: higher malpractice insurance rates for veterinarians, rising medical costs, even legal complications for owners who want to euthanize their pets.
"There's all kinds of consequences," Calnan said.
Michelle Nocito also is thinking about consequences - for Menu Foods.
She had started feeding pouches of Nutro Max to Goliath around Thanksgiving. Her other dog, Cohiba, an American bulldog with a sensitive stomach, ate a different kind.
Goliath had two seizures soon after, she said, but only in mid-January when he started to lose bladder control did she realize something was terribly wrong. His thirst was unslakable and his lethargy so profound that he slept 16 hours a day.
When news of the recall broke, she checked the list. His food was on it.
"The guilt eats at me every day," said Nocito, 30, a financial adviser who is five months pregnant with her first child. "At night when I come home and Goliath is not here, it is rough. My house seems empty."
If she receives any monetary award from the class-action suit she has joined in New Jersey state court, it will go to the shelter where she adopted Goliath, Nocito said.
But "it's not about the money. It's more about [Menu] being accountable," she said. "You can't put a value on what he meant."
To see the complete list of recalled pet foods,go to http://go.philly.com/petsEndText