The family of a Texas man who allegedly died of a disease contracted from a sick cockatiel has sued PetSmart for wrongful death, but the fate of similar cases around the country suggests their products liability theory will not fly.

The cockatiel that Amanda de la Garza bought from the Corpus Christi PetSmart store on Sept. 30, 2006 was allegedly suffering from a bacterial infection that crossed over to her father and caused him to be infected with the disease psittacosis, also known as “parrot fever.” Joe de la Garza, 63, died of psittacosis two weeks later.

At least five states have rejected products liability claims against pet stores for selling a defective animal, with courts in Missouri and Ohio taking that position in cases involving parrots. “We ... conclude that a parrot is not a product for purposes of products liability,” the Ohio Court of Appeals said in Malicki v. Koci, 700 N.E.2d 913 (1997).

But in a petition filed earlier this month, the de la Garza family allege that at the time “the bird left the hands of PetSmart, Inc,, the bird was diseased, defective, and unreasonably dangerous” and its defective condition was “a producing cause” of the death of Joe de la Garza.

“As a result, PetSmart, Inc. is strictly liable to the Plaintiffs herein,” the suit says.

A PetSmart representative told KIII-TV in Corpus Christi that the company is not aware of any confirmed cases of humans contracting psittacosis from humans. The de la Garzas insist that “The diseases of birds can cross over to the human population and can cause disease in the people who buy the birds.”

Amanda de la Garza also fell ill and was hospitalized “as a result of psittacosis,” the suit alleges. But whatever the scientific facts may be, PetSmart could argue that it cannot be sued for products liability as a matter of law.

In the seminal case of Whitmer v. Schneble, 331 N.E.2d 115 (1975), the Illinois Appellate Court ruled that an animal could not be a product since its "nature" is not "fixed" when it leaves the hands of a seller.

The Missouri Court of Appeals agreed with that view in rejecting a products claim filed by a parrot buyer who allegedly contracted psittacosis from the bird. “It seems unreasonable for us to hold a seller liable for changes potentially wrought upon a 'product' by the purchaser, while the item was completely outside the seller's control,” it said in Latham v. Wal-Mart Stores, 818 S.W.2d 673 (1991).

New York, Connecticut and Oregon have ruled otherwise. As a New York trial judge said in Beyer v. Aquarium Supply Co., 404 N.Y.S.2d 778 (1997),

[T]here is no reason why a breeder, distributor or vendor who places a diseased animal in the stream of commerce should be less accountable for his actions than one who markets a defectively manufactured product. The risk presented to human well-being is as great and probably greater than that created by a defectively manufactured product.
But in the most recent case on point -- Blaha vs. Stuard, 640 N.W.2d 85 (2002) --- the South Dakota Supreme Court found a dog was not a product. And you can expect the generally conservative, pro-business Texas courts to follow the Whitmer line of cases.

The de la Garzas also allege that PetSmart and Rainbow Exotics, a Waco bird supplier, are liable for negligent inspection and handling of the cockatiel and failing to warn Amanda de la Garza that “bird disease could affect humans.”

Amanda, the suit says, noticed the bird “was subdued and had separated itself from the other birds offered for sale,” but “was told that the bird was having a 'bad day.'”

Plaintiffs have recently sued PetSmart in Massachusetts and Rhode Island, alleging family members died as a result of receiving organs from donors which had been infected with a virus contracted from pet hamsters. Those cases, however, do not allege products liability.

Acting at the Bush administration's urging, the court agreed Monday to review a federal appeals court ruling that limited the use of sonar in naval training exercises off Southern California's coast because of its potential to harm marine mammals.

Sonar, which the Navy relies on to locate enemy submarines, can interfere with whales' ability to navigate and communicate. There is also evidence that the technology has caused whales to strand themselves on shore.

The Navy argues that the decision by the 9th U.S. Circuit Court of Appeals in San Francisco jeopardizes its ability to train sailors and Marines for service in wartime in exchange for a limited environmental benefit. The Navy says it has already taken steps to protect beaked whales, dolphins and other creatures in balancing war training and environmental protections, officials said.

Lawyers for the White House and Congress were headed to court Monday to argue the scope of the president's power to ignore legislative subpoenas. Court fights on this topic are rare and are normally reserved for questions of whether the White House has to cooperate with a criminal investigation, not with a congressional inquiry.

The Democratic-led House Judiciary Committee is demanding documents and testimony from the president's chief of staff, Josh Bolten, and former counsel Harriet Miers about the firing of U.S. attorneys. The scandal helped force the resignation of former Attorney General Alberto Gonzales.

The White House says Miers and Bolten do not need to comply with the subpoenas, citing executive privilege, the principle that one branch of government can't make another branch do something.

Judges normally try to stay out of disputes between the executive and legislative branches. The Bush administration wants the court to avoid this fight, too. Lawmakers say the court is obligated to help enforce a congressional subpoena.

James Earl Reed had been scheduled to die at 6 p.m. Friday. A federal judge in Columbia issued the stay at 5:40 p.m. after a defense attorney's last-minute request for the execution to be halted. Five hours later, the appeals court vacated the stay and defense lawyers asked the U.S. Supreme Court to halt the execution. The state was fighting that possibility.

Under the state's execution order, the death sentence had to be carried out by midnight or it would have to be rescheduled. By 11 p.m., as the high court considered the defense's request, witnesses for the execution were being brought to the death chamber.

Reed, 49, has been on death row since 1996, when he was convicted of murdering Joseph and Barbara Lafayette in their Charleston County home two years earlier. Prosecutors said he was looking for an ex-girlfriend.

During his trial, Reed fired his attorney and represented himself, denying the killings despite a confession and arguing that no physical evidence placed him at the scene. Jurors found him guilty and decided he should die.

In the request for the stay, the defense attorney cited a U.S. Supreme Court decision the day before regarding defendants' rights to represent themselves, according to the order by U.S. District Judge Henry Floyd. The high court on Thursday said a defendant can be judged competent to stand trial, yet incapable of acting as his own lawyer.

Reed would be the first person executed by electric chair in the U.S. in nearly a year and South Carolina's first since 2004.

In South Carolina, anyone sentenced to death may choose the electric chair or lethal injection. According to the Death Penalty Information Center, eight other states electrocute inmates.

The justices, by a 7-2 vote, said states can give trial judges discretion to prevent someone from acting as his own lawyer if they are concerned that the trial could turn into a farce.

The decision comes in the case of an Indiana man who was convicted of attempted murder and other charges in 2005 for a shooting six years earlier at an Indianapolis department store.

Ahmad Edwards was initially found to be schizophrenic and suffering from delusions and spent most of the five years after the shooting in state psychiatric facilities. But by 2005, he was judged competent to stand trial.

Edwards asked to represent himself. A judge denied the request because he was concerned that Edwards' trial would not be fair. Edwards, represented by a lawyer, was convicted anyway and sentenced to 30 years in prison.

He appealed, and Indiana courts agreed that his right to represent himself had been violated, citing a U.S. high court decision from 1993. The courts overturned his conviction and ordered a new trial.

Thursday's ruling probably will lead to the reinstatement of the conviction.

"The Constitution permits states to insist upon representation by counsel for those competent enough to stand trial ... but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves," Justice Stephen Breyer wrote in the majority opinion.

Justices Antonin Scalia and Clarence Thomas dissented. "In my view, the Constitution does not permit a state to substitute its own perception of fairness for the defendant's right to make his own case before the jury," Scalia said.

The City of Philadelphia wants to evict the Boy Scouts of America from the rent-free property that has been its headquarters since 1928, for violating the city's anti-discrimination policy. The city says the Scouts' Cradle of Liberty openly discriminates against homosexuals.

The city owns the property on Spring Street and under the 1928 agreement the Scouts must surrender it within one year after being given notice by the City Council, according to the claim in state court.

The city gave notice in July 2006, asking the Scouts to leave or pay fair market rent, because of the organization's discriminatory policies.