326 • Alternatives to Animal Use in Research, Testing, and Education 
• did not constitute "experimentation and/or 
research, as permitted by . . . the Animal Wel- 
fare Act”; and 
• violated the Connecticut anticruelty statute. 
The FOA complaint also contended that simi- 
lar demonstrations performed from 1977 through 
1979, when the company was not registered un- 
der the act, were not permitted experiments or 
research and violated the State anticruelty stat- 
ute. FOA petitioned the court for a jury trial; un- 
specified compensatory damages; $5 million in pu- 
nitive damages; interests, costs, and attorney's 
fees; and "other equitable relief.” On February 8, 
1982, U.S. Surgical filed a motion, under Rule 12 
of the Federal Rules of Civil Procedure, to dismiss 
the suit because the plaintiff had failed to state 
a claim on which the court could base any war- 
ranted relief (38). Two days later, FOA filed a sep- 
arate suit in the Superior Court of Connecticut, 
alleging the same facts, complaining of the same 
acts by the company, and requesting the same 
relief (41). On February 12, 1982, FOA filed a mo- 
tion for voluntary dismissal without prejudice of 
the action filed in the Federal court, under Rule 
41(a)(l)(i) of the Federal Rules of Civil Procedure, 
asserting that the Federal court lacked jurisdic- 
tion over the subject-matter of the suit (39). The 
court concurred and dismissed the suit without 
prejudice (40). 
FOA amended the State court complaint on 
April 6, 1982, adding three additional counts to 
the original two (42). The third count alleged that 
the surgical -stapling demonstrations performed 
on anesthetized dogs from 1977 through 1981 vio- 
lated Connecticut Statute 22a-15, which contains 
a general declaration of policy on environmental 
preservation. Counts Four and Five complained 
that the demonstrations constituted a nuisance 
and violated the provisions of the Animal Welfare 
Act. Thus, in addition to asserting that the com- 
pany's complained -of activity violated Federal and 
State animal welfare laws, FOA contended that 
it amounted to a compensable common-law nui- 
sance and also violated Connecticut’s stated pol- 
icies concerning protection of the public trust in 
natural resources. 
U.S. Surgical countered with motions to strike 
the first two counts, on April 12, 1982, and the 
last three counts added by amendment, on May 
19, 1982. In its memoranda in support of the mo- 
tions, the company responded to the allegations 
as follows: 
• The Connecticut anticruelty statute, being a 
criminal statute, created no private right of 
action to seek or compel enforcement of its 
provisions. According to U.S. Surgical, the 
law was not enacted to specially benefit a par- 
ticular class and no evidence of legislative in- 
tent to create a private right of action could 
be found. The company claimed that such a 
right would be inconsistent with the statu- 
tory scheme of criminal and administrative 
enforcement erected by the legislature to 
protect both animals in general and dogs 
used in research. 
• FOA lacked standing to sue, both on behalf 
of its members and on its own behalf, since 
the alleged injury was neither direct nor "dis- 
tinct from a general interest shared with the 
public at large.” 
• Punitive damages could not be awarded to 
FOA since no allegation was made that the 
defendant’s acts were committed to inten- 
tionally and wantonly violate FOA’s rights or 
showed a reckless indifference to the rights 
of FOA. 
• The Connecticut statute articulating the 
State's interest in natural resources as a "pub- 
lic trust” provided no basis for FOA’s chal- 
lenge to U.S. Surgical’s use of dogs, for three 
reasons. First, it authorizes no private right 
of action. Second, the State’s declared policy 
of protecting the public trust in natural re- 
sources does not apply to defendant's use of 
dogs. Third, the environmental statute does 
not supersede other State laws governing the 
use of dogs in research. 
• FOA lacked standing to sue on grounds of 
nuisance, having suffered no direct and dis- 
tinct injury of an interest in real property. 
• The Federal Animal Welfare Act created no 
private right of action in favor of FOA, for 
the same reasons stated in U.S. Surgical’s re- 
sponse to the first count (43,44). 
FOA filed an opposition to U.S. Surgical’s mo- 
tion to strike on June 10, 1982, and the court 
heard oral arguments on the motion on Novem- 
ber 3, 1982 (106). 
