In October 2012 a jury awarded two Pennsylvania women more than $200,000 as compensation for the loss of 122 frozen semen samples from five champion Standard Poodles.
Linda Blackie of Whisperwind Standard Poodles and Miriam Thomas had stored samples on their dogs in 2000, when Thomas’ husband owned the Mount Nittany Veterinary Hospital in State College, Pa. When he sold the practice in 2008, the incoming vet, Bob Cohen, D.V.M., assured them that everything would remain the same. “I considered moving it to another facility, but then I thought, well, it’s been safe there for more than nine years,” says Blackie. “So I left it there.”
However, in 2010 the women were informed that, due to an error at the hospital, the samples were destroyed when they thawed out. According to Blackie, Cohen’s insurance company originally wanted to pay approximately $1,000 in compensation, its estimate of what was invested in collection and storage fees.
On the suggestion of a friend, Blackie spoke to a local attorney about the situation, and in spite of the fact that Louis Glantz knew next to nothing about breeding dogs, he took the case. Although his specialties are real estate law, estate planning and corporate law, Blackie says that Glantz took the time to learn what he needed to know. “Our attorney did a fabulous job,” she says. “When we started out, I was worried that we’d fail because he just didn’t have any idea what we were fighting for. But he came through.”
It wasn’t just the attorney’s lack of knowledge about breeding stock, pedigrees and frozen semen samples that was a potential obstacle to winning the case. The average person would likely have little understanding of the value of show dogs, or how or why artificial breedings can be important. Blackie reported that a year prior to her decision to pursue litigation, a woman with a Weimaraner who had semen stored in the same tank with the Poodle samples had tried to get compensation for its loss. The local newspaper published a story about it, and Blackie says, “People acted like she was an ambulance chaser. What she was asking for wouldn’t have even covered collecting the semen.” Blackie says that the woman was unable to recover anything.
Glantz tried to find a legal precedent for the case, but came up with nothing. While it’s true that breeders of other types of livestock use artificial insemination, frozen semen is not widely used in horses. The use of frozen semen in cattle is common, but protocols are different.
According to the Oregon Equine Reproduction Center, until very recently horse breeders have not used frozen semen. The veterinary center offers one explanation for this. “Not all stallion semen survives the freezing process equally. As a very rough example, 25 percent of the stallion population freezes very well, 50percent freezes acceptably, and 25 percent freezes very poorly or not at all. This isn’t a problem with the cattle frozen semen industry. When bulls are chosen as sires for frozen semen programs, they are selected both on the basis of the potential they can pass to their offspring and how well their semen survives freezing. If the bull’s semen does not freeze well, they are culled regardless of their genetic potential. Stallion selection, on the other hand, does not take the freezability of the stallion’s semen into much consideration. If a stallion performs well (for whatever criteria is deemed in demand) their semen will probably be frozen if permitted by the breed registry. As a consequence, not all frozen semen is of high quality.”
Without a legal precedent, Glantz had to build a case from scratch.
Four of the dogs whose semen was lost were sired by ‘Gordon,’ Ch. Maneetas Del Zarzoso Fuego Fatuo, out of daughters sired by the Westminster Best in Show winner ‘Peter,’ Ch. Whisperwind’s On A Carousel. Blackie owned the semen from Ch. Whisperwind Sky Dancer and Ch. Whisperwind Fire Dancer, while Thomas had Ch. Lake Cove Whisperwind Beneath My Wings and Ch. Whisperwind Archangel collected. The fifth dog, Ch. Lake Cove Whisperwind Elite, was a Peter son.
Both Gordon and Peter had major achievements in the show ring. Born in England, Gordon was the Top Dog of all breeds in Finland before coming to the U.S., where he became Number 1 Non-Sporting dog and Number 3 among all breeds in 1993. Peter had achieved the same before Gordon, Number 1 Non-Sporting dog in both 1990 and 1991, and Number 3 among all breeds in 1990. Gordon was also Best in Show at Poodle Club of America. Both were handled by Dennis McCoy. But both dogs had also made a significant impact on the breed as sires, and the combination of Peter daughters bred to Gordon proved to be an almost magical “click” for Blackie.
“When Dennis brought Gordon over, I bred Peter daughters to him, and that combination worked beautifully for me,” Blackie says. “It had gotten to the point where I could use the dogs that came from the Peter/Gordon breedings and know exactly what I was going to get, what kind of tailset, carriage, coat, temperament, everything. We got very bold dogs, not soft at all. I remember one outdoor show where Dan Giles was showing Skylar [Ch. Whisperwind Sky Dancer]. Suddenly a storm came up, and things were blowing and falling all over the place. Skylar stood there like a lion, not at all intimidated by what was going on around him.”
Blackie and Thomas had stored the semen at the Mount Nittany clinic because, at the time, it was owned by Thomas’ husband. One of the new vets working there at the time was very interested in reproductive work, so they decided to collect and store the samples there, even though Blackie had Peter’s semen, as well as that of his younger brother from a repeat breeding, Ch. Whisperwind Brass Band, stored with reproductive wizard Dr. Robert Hutchinson.
“Although a lot of people bred to both Peter and Gordon, those trends pass so quickly,” says Blackie, and a breeder can suddenly find herself without access to the pedigrees needed for a breeding program. Both Sky Dancer and Elite were top producers. And although there is semen stored from Peter, none was ever collected from Gordon. At the time, the people involved with him felt that he had been used so extensively that his semen wouldn’t be in demand later. Now, of course, it’s too late.
But the only way that Blackie and Thomas could even hope to win their case was by gathering a lot of information that would persuade first their lawyer, and then the jury, of the importance of these dogs. It took two years to prepare for trial.
Because both Gordon and Peter had been big winners, articles had appeared in breed and all-breed magazines about them. Along with copies of those articles, Blackie got the dogs’ win records from AKC, and she has her own kennel records to show what the pedigrees had produced for her. “I can’t find anything, ever, but I do know where all my dog records are,” she says. “We ended up with a 4-inch thick binder of material by the time it was all said and done.”
Blackie was grateful to be able to get show records from AKC, tangible proof of the dogs’ success in the show ring. Peter, Gordon and their sons were shown in the 1990s, so without AKC’s help it would have been a challenge to recreate those records.
Not only did Blackie and Thomas have to collect all of this material, they then had to explain to the attorney what it all meant because it was such foreign territory for him. They ended up with sticky notes on every page of the binder, with explanations of what everything meant.
There were numerous delays in getting the case to trial, but when the time arrived for jury selection Blackie realized anew that the outcome rested on educating those who would make the final decision. To Blackie it seemed obvious that the opposing side dismissed potential jurors who might have a foundation of knowledge about animal husbandry. “There were people who had worked for the agriculture department at Penn State,” she remembers, “but the opposing lawyers dismissed them immediately.”
Once the jury was selected, there were two parts to the trial. First the judge had to determine whether the veterinarian was negligent, Blackie says. As reported in the Pittsburgh Post-Gazette, there was no dispute about the loss of the samples. After that was determined, it was up to the jury to determine the value of what was lost.
Blackie and Thomas could have sued for a much higher dollar amount had they based the figure on the number of puppies that could have resulted from the semen, rather than the value of the samples themselves. “We showed that if you had a litter of, for instance, 10 puppies and sold them for the typical price of a puppy, the value would have been way higher than what we placed on each semen sample,” Blackie says. “But instead we focused on the value of the breeding itself, and the question became how many straws it would take per breeding.”
The opposing side insisted that each breeding would require four straws, Blackie says, but Glantz presented evidence that a bitch could be impregnated with just one straw, although most reproductive experts use two per breeding.
One week before the trial, with all of the material that had been collected submitted to the court as evidence, the opposing side offered $20,000 to settle, according to Blackie. “To be honest, I was very discouraged when we went to mediation that day,” she says. “I was thinking that we would walk away with nothing. But after all the work we’d put into preparing, I didn’t want to settle with them. As it turned out, the jury was very open to learning and took it very seriously. “
Several witnesses testified at the trial in addition to Blackie herself, including Terry Farley, a breeder who has had lots of experience using frozen semen, and the president of the Pittsburg Poodle Club, who testified to Blackie’s reputation within the sport and what she has accomplished. A veterinarian also testified to show the jury the type of insulated tank where frozen samples would be stored and how the liquid nitrogen would be added to the tank to maintain the samples.
Glantz made several presentations that Blackie thinks were persuasive. First he placed big posters in the courtroom of the two most famous dogs in moments of glory, including one of Peter after his Westminster win and one of Gordon with the beloved actress Betty White. The photographs said that these weren’t just ordinary house pets, but were celebrities themselves in the dog world.
He also enlarged two more photographs and placed the posters in the courtroom. One was a photograph of his daughter on a pony, the other a photograph of the legendary Triple Crown-winning racehorse Secretariat. Blackie says that Glantz explained to the jury that his granddaughter’s pony is very valuable to his family. They think the pony is the best pony in the world, and because his granddaughter loves the pony they would find it difficult to put a cash value on him. Then he directedjurors to the photograph of Secretariat and explained that, because of his accomplishments and his pedigree, he had a different kind of value than the pony, illustrating that the Poodle semen that was lost was valuable because of the accomplishments and breeding potential of the dogs in the pedigrees.
Blackie herself was on the stand for two hours. Aside from the factual questions she answered, it was important to her to make the jury see that she had devoted a great deal of time and emotion, never mind money, into her breeding program. “I explained to the jury that this has been my life for 40 years,” she says. “A lot of love and passion went into it, and this is something we can never get back.”
Blackie had never been involved in any kind of lawsuit or trial, so this was a completely new experience for her and one she doesn’t wholly regret. She says that when it was all over she stood there and thought, “I would take that semen back in a second. I would rather have it back than any award from the jury. But at least there was some compensation for the loss. Aside from the devastation of losing the semen, this was a positive experience.”
In the final analysis, Blackie can see that there were at least two good things that came from the lawsuit: there was a consequence for the veterinarian’s negligence, and the case set a precedent for anyone in the future who might experience a similar loss.