Possible Deadline for CEM Lawsuits

Horse owners whose animals were affected by a contagious equine metritis (CEM) outbreak during the 2009 breeding season might have the option of filing a lawsuit for damages against the USDA's Animal and Plant Health Inspection Service (APHIS). Agencies of the federal government generally are immune to lawsuits under the principle of sovereign immunity, but there are a few limited exceptions. The Federal Tort Claims Act, for example, allows an individual to sue the government for monetary damages in certain situations.

The Federal Tort Claims Act was established in 1946 and permits recovery of damages caused by a negligent act, a wrongful act, or an omission by the government or a federal employee. To recover damages resulting from the CEM outbreak, a horse owner would have to prove fault on the part of the USDA or APHIS, and also show that the fault actually caused the harm. Some breeders believe that negligence at a federal quarantine and testing facility in Wisconsin led to the introduction of CEM into the American breeding market and that this negligence brings the Federal Tort Claims Act into play.

There are a number of exceptions to the applicability of the Tort Claims Act, including the performance or nonperformance of a discretionary function and the administration of animal quarantines. Whether these exceptions apply to claims relating to CEM is beyond the scope of this article.

There is a two-year statute of limitations for the filing of claims under the Tort Claims Act, starting when the government violated an individual's rights and the individual was harmed. In this case it is not clear whether the statute of limitations started to run when CEM first was identified in this country (possibly in early December 2008), or when an individual's horse tested positive, or when a positive or quarantined horse could not be bred. Claims filed after the statute of limitations has expired will not be considered.

Claims under the Federal Tort Claims Act must be in writing and can be submitted in the form of a letter or on Form SF-95 (Claim for Damage or Injury). The law is complex, however, and horse owners should consult an attorney familiar with the process for advice on when, and whether, a lawsuit should be filed.


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About the Author

Milt Toby, JD

Milt Toby is an author and attorney who has been writing about horses and legal issues affecting the equine industry for more than 40 years. Former Chair of the Kentucky Bar Association's Equine Law Section, Milt has written eight nonfiction books, including national award winners Dancer’s Image and Noor. He teaches Equine Commercial Law in the University of Louisville's Equine Industry Program.

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