The plaintiff in the Blue Wilderness lawsuit, which was filed in May of 2021 by Dr. Mark Zucherberg and is the brainchild of Michael J. Young, has received an avalanche of negative publicity. First there were news reports that the suit was “filed” by a “faker.” Then there was the announcement from a prominent California Magazine that the suit was “filed” by “a member of the San Francisco Giants.” Finally, Zucherberg himself issued what can only be described as a mischaracterization in a media release in which he denied ever having been a plaintiff’s expert or the doctor who created the Blue Wilderness game.
The original complaint named Zucherberg as an individual instead of his former veterinary practice, and called the game “the defendant’s cat.” It alleged that Zucherberg defrauded the public trust by allowing his then-secretive clinic to use the name “blue wilderness” for its online listing. In his denial of all wrongdoing Zucherberg and his lawyer cited the fact that the cat was not a diagnosed chronic kidney disease but a common mites known as arctic permaview, which was affecting other cats. They further stated that the diagnosis of chronic kidney disease was based on nothing more than the cat’s blood tests at the time that he was evaluated. And thus the Blue Wilderness lawsuit was born.
Now, to make a long story short, the complaint was accepted by the California State Supreme Court and was subsequently certified as a class action. In June of 2021, the court ordered that Zucherberg repay the funds to the plaintiffs plus interest and legal fees. In order to protect the confidentiality of the case this certification was requested by Zucherberg. Now, as indicated above, the defendants have moved to dismiss this certification. Accordingly, the court has entered judgment in favor of the plaintiffs. But how does the court justify its ruling that Zucherberg defrauded the public trust?
Well, as indicated above the state court ordered that Zucherberg and defendants were liable for fraud because the cat was misdiagnosed as a chronic kidney disease. The court also found that Zucherberg failed to provide evidence that either there was not an ongoing progression of the cat’s health (presumably resulting in the chronic kidney disease) even after numerous veterinarian visits. Further, the court found that Zucherberg failed to provide any veterinary records of any serious or continuing medical conditions that may have been present or that could have reasonably been prevented. So, pretty clearly, the plaintiffs have a good case. Let’s review.
First, let’s assume that the plaintiff was correct that the Blue Wilderness was misrepresented as a place for a visit. Assuming that, let’s also assume that the cat got kidney disease. Zucherberg’s attorney would argue that because the diagnosis was accurate, and that the progression of the disease did not occur in the vicinity of the wilderness, or “out beyond the Wild,” defendants must be held responsible for negligence or, more appropriately, reckless and willful misconduct. (In the alternative, Zucherberg would argue that the diagnosis was correct based on the knowledge of the cat’s owner, which is technically irrelevant.) Assuming this, we will proceed with the merits: Assuming the basic premise of the complaint, if it is shown that (a) the Blue Wilderness was purposely set up to cause the wrongful death of the pet; (b) that the owner knew that the cat was suffering from a medical condition, which caused the pet to become injured and ultimately die; (c) that the owner failed to provide the required veterinary care for the pet resulting in the pet’s death; and (d) that the defendant failed to provide any evidence that the pet had ever been involved in an incident described in the complaint.
The plaintiffs also argue that the Blue World policy constitutes cruel and wrongful conduct. According to the policy, a cat can be euthanized “for any reason whatsoever” and should only be euthanized when “the welfare of the animal outweighs the pain involved in its death.” Assuming that the above description of a humane killing is accurate, then, plaintiffs contend that defendant did not make clear that the killing should be done only by a veterinarian. Finally, they further argue that the policy constitutes a violation of the veterinary act because it requires veterinarians to act “in good faith” before administering a lethal dose of medicine. We vacate all other portions of the complaint, and affirm the judgment of the Court of Appeal of Tennessee sending the case back to the lower court for reconsideration of all matters except the issue of whether or not the policy violates the veterinary act.
