A guide to discovery and the use of experts
Dog bites and pet-related injury claims to insurers have risen substantially over the years. The value of claims according to the Insurance Information Institute jumped from $324 million in 2003 to $571 million in 2015, showing a 76.2 percent increase. California accounted for the largest number of claims in the U.S. in 2015 at 1684 with a total value of $75.8 million. State Farm Insurance has stated that one-third of all homeowners’ liability payouts in 2014 were for dog bites and although actual claims decreased by 4.7 percent, the average cost per claim was up by 15 percent. Plaintiff demands for $1 million or more are not uncommon in dog-bite cases. A recent New Jersey case in which a 5-year-old girl was bitten in the face by a dog up for adoption settled for a total of $900,000.00 well before trial.
Despite strict liability statutes in most states which create liability in the absence of scienter, negligence or intentional behavior, in many cases it can still be difficult for plaintiffs’ attorneys to get what they believe is fair and adequate compensation for their clients.
One reason for this is a lack of sufficient knowledge needed to fully understand important connections, patterns and subtleties in the fact pattern of their case which often lay several layers beneath the surface. Even though strict liability may apply, issues of provocation can turn a case upside down and at times end with substantial comparative fault, a defense under strict liability, allocated to the plaintiff. Cases involving third-party landlord/tenant issues or pet-related injuries not involving dog bites such as knockdowns or fright cases present a whole host of other difficulties for an attorney without the level of understanding needed to give their client’s case the foundation it deserves.
This article can be used as a guide to ensure that as much relevant evidence can be produced as possible. It is especially important that all claims be presented in a manner consistent with accepted knowledge in related areas such as canine behavior and bite wound evaluation and analysis. Failing to do so can diminish the likelihood of early settlement.
Witness accounts of the incident
It is well understood that even eye witness accounts of incidents are often inconsistent and that dog bites can happen in the “blink of an eye.” Plaintiffs are not always clear about how the incident happened or why. Even when they seem to be clear, their descriptions of what happened are not always supported by the evidence, at least on the surface. Parties in litigation may not be truthful about the details of an incident or history of the dog. Dog owners often state that their beloved pets are not aggressive and have never even growled once prior to the incident. Bite victims can change their version of what happened in order to avoid questions about any potentially provocative behavior they displayed just prior to the bite. They also have been known to over-dramatize their accounts of the incident by increasing such factors as the amount of time the attack lasted; the number of times they were bitten and the intensity with which the dog bit. Statements by victims that the dog was trying to kill them tend to fall on deaf ears unless the type and location of the bite wounds gives the victim’s fears real meaning. Adjusters and defense attorneys pay close attention to any fact pattern or claim that does not fit what they expect to see based on past experience.
Although there are many good sources of evidence in a dog-bite or pet-related injury case there are two sources that often are the most reliable in contested litigation: the dog and the bite wounds.
A dog’s temperament does not change
There are three things about dogs that make them very important evidence and why upon filing a lawsuit a demand for production of the defendant’s dog should be made as soon as possible. (1) Dogs are creatures of habit; (2) A dog’s temperament doesn’t change over time; (3) Dogs do not lie or change their behavior because they are involved in litigation.
Typically a dog’s behavior can change due to old age, illness or injury or if they have been trained or had their behavior modified after an incident, but their temperament does not change over time. That is why a forensic evaluation of a dog by a qualified expert is valid even years after the incident. A dog with an aggressive temperament will always have an aggressive temperament. Also, if a dog is aggressive at the door or towards strangers on its territory, that behavior will likely be ritualized with time and repetition, making the same behavior likely to show up in an evaluation even years after an incident unless a lot of work has been done to re-train the dog.
Below are areas regarding the subject dog that deserve more than a superficial review as they may be very important in both establishing your case and avoiding unnecessary mistakes:
(1) Breed – Many attorneys litigating a dog-bite case believe that if the defendant’s dog is an “aggressive breed” such as an American Staffordshire Terrier or other breed commonly called a “pit bull,” that their case is in the bag. However this is rarely true unless the case is being tried in a state or county in which “pit bulls” have been declared a dangerous or vicious breed. It is important to focus on the individual dog and refer to its breed as only a factor, but relying on the breed alone to make the case that the dog was dangerous or that the owner/handler knew the dog was dangerous will frequently be a risky argument and often one that will not carry enough weight. “Pitbulls” are no longer a dog for inner city neighborhoods and gang members as they once were. Now they can be seen quite often being walked in Beverly Hills and other enclaves of the wealthy. America both loves and hates “pit bull” terriers and an “attack” on the breeds that make up this group can meet just as much resistance as it does support in a courtroom.
(2) Sex – Intact (un-neutered) male dogs are involved in 70-76 percent of reported dog-bite incidents (Wright J.C., Canine Aggression toward people: bite scenarios and prevention. Vet Clin North Am Sm Ani Pract 1991:21(2): 299-314).
(3) Age/Health – Certain breeds see males become much more aggressive between one and three years of age. Also, older dogs often become aggressive due to painful physical issues like hip dysplasia or eye issues like glaucoma. Claims that older dogs, in poor health, ran up to the victim and jumped up on them typically meet with strong resistance from the defense. A recent serious injury case went up in smoke when the victim testified about how her neighbor’s Siberian Husky ran full speed down the driveway and leaped at her, causing her to fall. Veterinary records, witnesses and expert testimony presented to the jury led to a defense verdict when it was revealed that the dog was partially crippled and nearly 20 years old at the time of the incident. The average lifespan of a Siberian Husky is 12-15 years at the most. The plaintiff’s attorney did not seem to be aware of this when his client’s deposition was taken.
(4) Size – Large breeds can cause more damage, especially when the incident involves a child. Check the dog’s veterinary records at the date closest to the incident for the dog’s weight. In dog-on-dog aggression cases where a person is bitten, the facts about each dog including size and weight, the dynamics of how the incident happened and which one was the aggressor can be important.
(5) Behavioral History – Individual behavior history is extremely important as each dog is an individual within a breed and may not present all or any of the characteristics commonly attributed to a that breed. An in-depth investigation into the defendant’s dog’s temperament and previous behavior is a must. Often insurance carriers believe their clients when told a beloved pet is a complete sweetheart and wouldn’t hurt a fly. They will only accept the possibility that their client is not telling the truth if you prove it to them with hard evidence. Owner denial, in spite of clear evidence to the contrary, is a prime factor in many bite incidents.
(6) Types of aggression previously displayed – There are numerous types of canine aggression such as dominance aggression, territorial aggression, protective aggression, maternal aggression, etc. Even if a dog has demonstrated aggression in the past, it can be problematic when used as a support for your case unless it directly relates to the incident being litigated.
For example, dog-on-dog aggression does not relate to dog-on-human aggression. Having evidence that the defendant’s dog has attacked other dogs or animals in the past is not evidence that will be helpful, if your case is strictly dog-on-human aggression and your client did not have a dog with him or her at the time of the incident. If there is evidence that the defendant’s dog bit someone who was trying to take their food away, that evidence will only have weight if your client was bitten in the presence of food. If your client was attacked while walking down the street or riding a bicycle, showing a history of food aggression may not support your case.
Documents that are absolutely necessary in a dog-bite or pet related-injury case are: hand-written veterinary records of all dogs involved, animal control records, any witness and first responder reports as well as training, grooming and kenneling records. This expert has found that personal interviews with neighbors as well as anyone who had contact with the dog prior to the incident can produce vital evidence about the dog’s history and what the owner/handler knew at the time. Interviews should be done by the retained expert as investigators typically do not have the knowledge needed to ask the right follow-up questions or to clarify specific terms often misused by the general public regarding dogs. Also experts can rely on “hearsay” evidence even if the witness suddenly decides they no longer want to be involved after giving their first and only interview.
(7) Socialization – Dogs that are not well socialized, especially as puppies, have a higher likelihood of aggression. This should be explored in the owner’s deposition.
(8) Inside/Outside – Dogs that are kept outside and not allowed into the home are typically poorly socialized and more likely to demonstrate aggression towards strange people and dogs.
(9) Chaining – Dogs that have been chained for long periods of time have been shown to be three times more likely to bite. (PETA.org) Typically, the victims of chained dogs are children. Also some states like California have laws against chaining a dog for more than three hours at a time.
(10) Stray or rescue – Many stray dogs or rescue dogs are wonderful pets but there are a fair percentage with behavior issues which may be the reason they were on the street or put up for adoption. Previous owners sometimes don’t tell the rescue organization about aggression issues because they are afraid the dog will be euthanized.
(11) Training – If the defendant’s dog has been professionally trained, previous aggression may be one of the main reasons why. The trainer can be an excellent percipient witness regarding the dog’s prior behavior and what the defendant knew about their dog prior to the day of the incident.
(12) Leash – Most cities have leash laws but a lot of them also require a dog to be restrained on a leash not over six feet long. If the biting dog was being walked on a retractable leash that was extended over six feet it might be important in establishing owner/handler negligence.
(13) Exercise – Dogs that are under-exercised can build up tension that can either fuel or intensify aggression.
It is very important that the plaintiff’s bite wounds support their account of the incident. Typically the main issues in a dog-bite case are: (1) Are the plaintiff’s wounds from a dog bite? (2) Is the defendant’s dog the dog that bit the plaintiff? (3) Did the attack happen as the plaintiff describes? (4) Did the plaintiff provoke the dog into biting him or her?
Bite wounds are an actual physical representation of the incident. They stand alone as evidence even if the plaintiff was the only witness and the dog has been euthanized. If the wounds are not consistent with the plaintiff’s account or in some cases with a dog bite at all, his or her credibility will likely be questioned.
Dog bites typically present as punctures, lacerations, avulsions and abrasions. As bites are by nature crush injuries, deeper wounds often are accompanied by contusions (ecchymosis is often written in medical records), otherwise known as bruises caused by broken blood vessels around the central wound.
Defensive and offensive wounds
Although all dog bites are serious from a medical standpoint and even by an emotional standpoint due to the potential long-term damage they can do to the victim, there is a motivational difference between offensive and defensive aggression that shows up in the dynamics of the attack as well as the type, depth, location and number of bite wounds. All bites are an aggressive display, but a dog that is provoked into defending itself and responds with a quick inhibited bite is qualitatively a different dog than one who runs up to and attacks with multiple deep punctures over different parts of the victim’s anatomy and has to be pulled off the victim by the owner/
Dog-bite wounds are typically offensive or defensive. Dogs that bite in an effort to defend themselves from a person who has provoked them by stepping on their tail or paw or who has put their face very close to a strange dog’s face will often receive one inhibited bite. Inhibited bites are where the dog controls the severity of the bite. In these cases, the dog is simply trying to remove a threat. One quick bite usually succeeds in creating enough distance between the dog and the threat and no further aggression is displayed.
Offensive attacks, typically but not always, involve multiple bites often to different parts of the body. They can be provoked based on the specifics of the incident and whether or not the dog’s level of aggression was grossly out of proportion to the actions of the victim, but most often are unprovoked, meaning the victim’s actions just prior to the incident would not be considered something that is likely to cause a dog to bite. A particular dog, due to one or a combination of factors such as poor socialization and fear aggression may interpret an outstretched hand as a threat and bite it, but in the eyes of the law, a friendly and common gesture such as reaching out to pet a dog is not provocation. (Ellsworth v. Elite Dry Cleaners, etc., Inc. (1954) 127 Cal.App.2d 479) and walking toward
a dog does not constitute provocation. (Chandler v. Vaccaro (1959) 167 Cal.App.2d 786.) (dogbitelaw.com)
Any dog bite or attack is serious from a medical and or emotional standpoint; however from a behavioral standpoint a serious attack can be defined by one or more of the following factors being present: (1) Multiple wounds; (2) Shaking; (3) The dog won’t end the attack on its own. Attacks that include all three factors are clearly the most serious. Shaking, which is part of a predatory sequence of behavior related to killing prey, as well as a dog that won’t end the attack without outside intervention, is part of the fact pattern of many fatal
There are often solid explanations why a particular wound pattern does not seem to add up, but they are typically only available to attorneys through expert opinion after a thorough analysis. For example, where a stranger trying to kiss or hug a dog would clearly be provocative…a person who is very familiar with the dog and who has kissed and hugged the dog on numerous occasions previously with no warnings or aggressive response may not meet the criteria of provocation due to their history with the dog accepting the behavior. Provocation can be intentional like kicking or hitting a dog or unintentional such as a person not very familiar with the dog initiating rough play. Certainly, the victim of the bite is not intending to threaten or hurt the dog but nevertheless their actions can be viewed as likely to cause a dog to feel threatened and bite. Dog-bite incidents often are the culmination of a complex interaction that on the surface can appear confusing at best. Each dog, victim and incident is unique. All the facts should be reviewed and interpreted before a decision on whether the victim provoked the dog or not can be accurately made. In most cases this requires an expert opinion after a complete forensic investigation and evaluation of all relevant discovery.
As the dog is one of the two most valuable pieces of evidence, it is, in this expert’s opinion, always a good idea to have the dog evaluated by your expert as soon as possible. In many cases, the dog has already been euthanized and an evaluation is not possible, but if the dog is alive and available, this opportunity should not be missed. The reason to do the evaluation quickly is because dogs can die, run away or get seriously injured after being hit by a car, etc.
Aggressive dogs almost always demonstrate their aggression in well-conducted evaluations. There is never a guarantee, but that has been the general rule in this expert’s experience. This is especially true when the defense doesn’t want to allow you to evaluate the dog. It may just be the defense’s unwillingness to give up any information or control, or it may be that they are trying to keep you from seeing what they consider to be a real problem for their case.
In a recent hard-won evaluation that had to be ordered by the court, the plaintiff’s expert was wondering how he could do a proper evaluation at all. When the battle was over, all he was allowed to do was observe and video the dog while it was held in a static sitting position by the defense’s dog expert. The dog, an American Staffordshire Terrier who bit a man that was reaching out to shake hands with the dog’s owner, just sat there and didn’t move. These limitations on the evaluation were ordered by the judge and there was nothing the plaintiff’s expert could do.
Suddenly, the dog started growling and leaping wildly in the air. The expression on the defense expert’s face was priceless as he started to lose control of the dog and clearly didn’t know what to do next. Just as suddenly, he turned and quickly took the dog back into the house while the evaluation was still in progress.
What actually happened was that a neighborhood cat came out of nowhere and started walking slowly behind the plaintiff’s expert who was videotaping everything. When the dog saw the cat “all hell broke loose.” Even though dog-on-cat aggression does not relate to dog-on-human aggression, once the defense got a copy of the video of their expert trying to hold down their client’s out-of-control, growling dog, they promptly settled the case.
Dog owners like to say good things about their dogs in deposition but it never helps their credibility when they testify that their dog is well trained and responds quickly to commands and a video of their dog doing just the opposite is shown at trial. These moments turn out to be like scenes from “America’s Funniest Home Videos.” Entire courtrooms erupt into laughter at the defendant’s expense when their dog, by its behavior, essentially calls them a liar. Of course, if the defendant is telling the truth, the video will back them up. The point is that dogs tell the truth and juries know it.
There are only a handful of self-titled dog experts in the United States who have more than a very limited amount of experience in court. Many more would like to act in an expert capacity and offer their services without the background needed to ensure that the attorney who hires them gets the high level of service they expect. Your expert should know exactly what documents you need and what actions need to be taken in order to maximize all discovery options. Also, they need to know how and where to find evidence that is not readily available through normal channels. Lastly, they need to know how to complete those tasks in a professional manner that does not create impeachment opportunities when facing an aggressive cross examination. Experts that only review what is sent to them by attorneys and do not do their own independent investigation can appear to be nothing but “hired guns.”
Dog experts come in all shapes and sizes and their experience and training vary greatly. Some offer opinions on dogs trained in aggression such as police dogs and guard dogs, but have no actual experience training dogs in Shutzhund, a technique developed in Germany in which nearly all police dogs are trained.
Every juror is a dog “expert”
That all experts need to be properly vetted is well known. In cases involving dog bites and pet-related injuries, it is vital to go over each and every area of the litigation that the expert might be asked about. He or she must have expert qualifications in every area. Just calling yourself a dog expert does not make you an all-purpose expert. Has the expert offering opinions on dog-bite wound evaluation been published on that topic? Unlike construction defect cases or slip-and-fall cases involving specific gradients, people know dogs or at least believe they do. Every juror will have had some experience with dogs. Some will have been bitten. More than anything they need to be educated in what they don’t know and confirmed in what they do know.
Most importantly, dogs are basic and real. Your expert’s testimony must reflect that with their tone and language.
2022 by the author.
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