Dog Bite Law |
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| The Use of Experts In Dog Bite Cases | ||
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Expert witnesses are sometimes required in dog bite cases, but must be selected carefully. |
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Canine issues
There are three types of canine experts who can assist an attorney with the investigation of a dog bite case, and be admitted to provide expert testimony on selected issues within their area of education and experience:
Each of these can assist an attorney with the investigation of the dog and the incident itself. However, not all of them fare the same in court. One of the recurring issues in dog bite litigation is the admissibility of expert testimony. Common objections are that the witness is not actually an expert on the subject to which he is speaking, and that the subject is not one that requires an expert to expound upon. Therefore if the witness might have to testify, his qualifications and the topic of his testimony require careful scrutiny. Generally, the expert of choice in dog bite litigation is either a veterinary behaviorist or an accredited applied animal behaviorist (see below for definitions). They can provide insight, assist with the discovery plan, examine the dog for veterinary or behavioral factors that might have caused the attack, and enlighten the attorney or adjuster on a host of issues relevant to the investigation, discovery, trial and settlement of the case. Nevertheless, as with every type of litigation, it is essential to carefully identify the issues before selecting one type of expert over another. For example, in a dog bite case that involves a chronically ill dog, a veterinarian would be competent to testify about the diagnosis of the illness, a behaviorist could testify about the dangerousness of the dog but could not diagnose the illness itself, but a veterinary behaviorist could testify about both the diagnosis and the dangerousness of the dog. In other words, different issues may require a different kind of expert. In a case that involves a pit bull used as a fighting dog, for example, an animal control officer or a trainer who rehabilitates fighting dogs might be far more pertinent and convincing than an academic expert. Which expert to use, therefore, depends on both the qualifications of the available experts, and the issues presented by the case. There are two well-recognized credentialing bodies for professional behaviorists dealing with dogs:
When evaluating the qualifications of potential or opposing expert witnesses in dog bite cases and any other type of litigation, care must be taken to determine the person's credentials. The names of legitimate organizations can be confusingly similar. For example, the American Veterinary Society of Animal Behavior is a group of veterinarians who share an interest in understanding, teaching and treating behavior problems in animals; however, members are not diplomats of the ACVB, despite the similarity of the two organizations' names, which share the words "American," "Veterinary," and "Behavior(ists)." Any person in any field who is introduced into litigation as an expert witness must be thoroughly examined as to his qualifications to testify on the issues in that case. An experienced trainer who is a great communicator might be a powerful witness in a case that involves training or animal cruelty, but would be excluded from testifying about the behavioral or veterinary causes of a dog attack. Unfortunately, it has become common for trainers and others having experience with dogs to hold themselves out as "behaviorists." Among them, the use of the term is intended to signify a degree of experience and possibly scientific study beyond that of an ordinary trainer. The precise degree would vary, however, because there is no standard or well recognized body that confers the title of "behaviorist" other than the two organizations above noted. The lack of an academic background, publication in peer-reviewed journals, original research or other hallmarks of the accredited applied animal behaviorist and veterinary behaviorist would be important factors to consider in evaluating a proposed expert for the purpose of courtroom testimony in dog bite litigation. Nevertheless, it bears repeating that the nonacademic who communicates well and has vast, hands-on experience with something essential to the lawsuit would be just as desirable and possibly more desirable than the pure academic. Whatever his background, care must be taken to ensure that the expert does not venture out of the area in which he is qualified, or stray from the body of scientific information, into the unscientific, undocumented or even apocryphal. For example, in a recent case involving a man bitten on the hand, the defense designated a veterinarian to testify that the bite marks could not have been made by the defendants' dog. On direct examination at his deposition, the veterinarian testified that his opinion was based on the possibility that the victim's hand might have been at an angle, thereby causing fewer teeth marks which resembled the defendants' dog but actually were left by another dog. Upon cross examination, however, the expert testified that he never examined humans, had never studied canine bites upon humans, and had never testified about canine bites upon humans; furthermore, he admitted that he was simply pointing out that the victim's hand might have been rotated, even though it hardly required an expert to speculate about that. If the case had not settled after the deposition, there is little doubt that the foregoing opinions of this expert would have been inadmissible at trial or, if admitted, would have created a weakness in the defense case. A common error by plaintiffs' lawyers involves expert testimony and the issue of dog owner scienter. An expert witness cannot testify that a dog owner subjectively knew that his dog was dangerous or vicious. In Kathren v. Olenik, 46 Or.App. 713, 718, 613 P.2d 69 (Or.App. 1980), the court stated:
Disfigurement issuesDisfigurement produces several kinds of losses. One type is physical, such as pain from the accident, the treatment, the healing, contact with scars, and numbness and tingling from scars and crush injuries. Another type is functional, such as when speech or sight are affected, or when the tear duct system does not work properly. Another variety pertains to quality-of-life, sometimes referred to as the "hedonic" damages. Then there is the emotional harm, ranging from anxiety to embarrassment to humiliation. There is loss of consortium as well as social and romantic opportunity. Additionally, there are economic losses. There can be a specific provable loss of income because of the original wound, the time necessary for treatment, and the time required for healing. As a result of discrimination, there can be a loss of specific earnings and also a loss of earning capacity. There also are costs which can be associated with disfigurement, such as treatment costs, nonprescription drugs and ointments, makeup and cosmetics. The experts that you use will generally include a board-certified plastic surgeon who will testify as to permanency of the disfigurement as well as the procedures and costs to minimize it, a psychologist who specializes in disfigurement, a treating psychologist or counselor, supervisors or colleagues who can establish the loss of income, a vocational expert who can establish the past loss of income as well as the loss of future earning capacity, and a CPA who is also an economist, who can testify about hedonic damages, quantify the monetary losses of the past and future, and reduce the future losses to present value. It is challenging to prove the full range of damages incurred by a disfigured child. There are many known issues that arise in the proof of future loss of earning capacity. Nevertheless, there is sound research that supports it, even if it is difficult to prove in any particular case. Because it is soundly based and makes common sense, the claim for it should always be made, even though it can be expensive and troublesome.
Causation issuesIt sometimes is necessary to prove that the victim's wounds were caused by a dog as opposed to something else, such as a fence or a knife. For example, if a child's face is covered with lacerations when he returns from a neighbor's back yard, the state's dog bite statute might be the only viable cause of action against the neighbor, but the statute might apply only to bites and not scratches. (See Legal Rights of Dog Bite Victims in the USA for further information about liability based upon dog bite statutes.) There are several types of witnesses who may provide testimony on this issue, including medical doctors, forensic pathologists, and veterinarians who have studied canine biting of humans beings. Note also, however, that other evidence can prove causation. Suppose the child in the above example ran into the house screaming that the dog had bitten him? Competent witnesses who heard him could testify under the doctrine of res gestae, or the following exceptions to the hearsay rule: excited utterance, spontaneous statement, then-existing physical condition, and (if he died) dying declaration. If the child repeated the statement at the hospital, the statement would fall under the hearsay exception for statements made for the purpose of medical treatment. (For more about evidence in general, including the Federal Rules of Evidence and with a focus on California Evidence Code, see DiCarlo, Summary of the Rules of Evidence.) "Res gestae" as used above refers to those facts or things done which form the basis or gravamen for a legal action. Since a bite by a dog is part of the boy's case, then his exclamation about it is res gestae and admissible under that sense of the phrase. (See, i.e., Marcum v. Bellomy (1974) 157 W.Va. 636.) Note that "res gestae" has different meanings in different states. Commonly, statements which can be admitted into evidence as res gestae fall into three headings:
It Was a Pit Bull, Not a Knife - An Expert Witness Horror Story The last thing any lawyer needs to deal with is the unqualified expert or the mercenary expert (i.e., will testify to anything in exchange for the payment of a fee). Consider the story of a young mother who was convicted of killing her daughter when, in fact, it was the pit bull that did it. In 1997, Louise Reynolds, a 28 year old single mother living in Kingston, Ontario, was charged with 2nd degree murder for having killed her seven-year old daughter Sharon. Prosecutors said that she stabbed the child more than 80 times with a pair of scissors, “because she was angry at her for having head-lice.” There was dog excrement found near the girl's body, and it was noted the dog appeared to be covered in ketchup. Much of the case rested on a 10-page autopsy report by Dr. Charles Randal Smith, the head pediatric forensic pathologist at the Hospital for Sick Children in Toronto, Canada, from 1982 to 2003. In January 2001 prosecutors abruptly dropped the charges, after numerous experts, including prosecution witnesses, disagreed with Smith and agreed that a pit bull had mauled the girl. By then, Reynolds had spent three and a half years in jail awaiting trial. While she was in prison, her other daughter was adopted. (To read more about the disgraced Dr. Smith, click here.)
Discovery and trial: litigation forms and other materials for attorneys
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An
attorney who is involved in dog bite litigation generally is well advised
to be liberal in retaining a canine expert at the earliest possible time.
The dog owner, adjuster and opposing attorney (for the plaintiff or
defendant) usually know little or nothing about the real reasons why
the dog in question bit the victim. Plaintiffs' lawyers tend to gloss
over the causation issue, especially in statutory strict liability states;
defense attorneys and adjusters rely heavily on the possibility of proving
that the victim provoked the dog when, in fact, the only study on this
subject concluded that legal provocation occurs in only 6.5% of dog
attacks. (See 
