False Positive Supports|Elephant Owner’s Suit

(CN) - An animal exhibitor whose elephant was mistakenly branded as a carrier of tuberculosis may have been prejudiced by the maker of a diagnostic test, a federal judge ruled.

Comprehensive guidelines for the control of tuberculosis in elephants that the U.S. Department of Agriculture issued in 2008 require elephant owners to use certain tests on their animals.

Diagnostic-test maker Chembio Diagnostics got an exclusive license to manufacture and sell the STAT-PAK assay kit to test for tuberculosis in elephants.

Elephant Walk, a USDA-licensed elephant exhibitor, used the STAT-PAK kit to test one of its elephants, Topsy. After the test showed a "reactive" result, Elephant Walk asked for clarification and a retest, claiming that the test was often unreliable.

In a subsequent federal complaint, the exhibitor said Chembio never returned Topsy's blood sample and claimed that the test was out of stock.

When Elephant Walk later retested Topsy, it allegedly got a negative result. It claimed that the inaccurate "reactive" result stopped it from exhibiting Topsy in circuses and other events because animal rights groups and certain states had interpreted Chembio's result as "positive."

Elephant Walk argued that, since the test maker had helped draft the USDA testing guidelines and had an exclusive license to sell the test, it was liable for negligence and breach of a third-party beneficiary agreement.

It claimed that Chembio knew its results were available to the public, including animal rights groups, and that a "reactive" result would harm Elephant Walk's business.

Chembio countered that it had no duty to keep the test in stock or retest Topsy.

But U.S. District Judge Richard Smoak in Panama City, Fla., refused to dismiss the negligence claim at this stage of the lawsuit.

A jury may find that Chembio, the exclusive licensee and manufacturer of a USDA-required test, had a duty to at least keep the test in stock, according to the Jan. 22 order.

Smoak also advanced Elephant Walk's allegations that Chembio had breached a contract with USDA-licensed elephant exhibitors to assist them in complying with the 2008 guidelines.

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