Canine Issues

expert witnessAn 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 Tips and Tricks for Victims’ Attorneys on this website.)

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:

  • People who have experience with dogs, such as trainers and breeders, can assist with the investigation of a dog bite case or, in court, might be qualified to render opinions about negligence, temperament, socialization, training, the customs and business of training, and provocation.
  • People who have experience with dangerous dogs, such as animal control officers, can assist with the investigation of a dog bite case or, in court, might be qualified to render opinions about compliance with local laws that could form the basis of a negligence per se claim.
  • People with academic training, such as veterinarians, university educated behaviorists and veterinary behaviorists, can assist in investigating the facts pertinent to and provide opinions about negligence, temperament, the breed of dog, the “parents” of the dog, socialization, training, health and provocation, and can testify about a broad range of important issues relevant in dog bite cases, most notably the causation issue.

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:

  • The Animal Behavior Society (ABS) is a group of professionals (veterinarians and PhD’s) who are concerned with the study and clinical practice of animal behavior. It has a credentialing program for an “Accredited Applied Animal Behaviorist.” See the Directory of Certified Applied Animal Behaviorists.
  • There is board certification in the veterinary field by the American College of Veterinary Behaviorists (ACVB). This board certification is fully approved by the American Veterinary Medical Association, which endorses the other specialty colleges, such as surgery, radiology, internal medicine, etc. As of January 2005, the ACVB was made up of 37 members. They have been through a rigorous specialty training program after veterinary school, equivalent of internship, possess experience as a veterinary practitioner, have published their research in approved, high-level journals, and passed a rigorous two-day examination. They are legally permitted to prescribe behavioral medications where indicated. See the Directory of Diplomats of the American College of Veterinary Behaviorists.

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:

Plaintiff argues the opinion of the expert that Mordecai [i.e., the dog] was vicious and would have been vicious for several months is sufficient to allow the jury to find that defendants should have known of the dog’s temperment. That opinion may have been evidence that the dog was in fact vicious, but it is not evidence that the defendants actually knew of the propensity or were aware of any manifestations of viciousness that would put them on notice. The burden was on plaintiff to prove the dog was vicious and that defendants knew of the dog’s propensity.