Summary of expert witness experience for Richard Polsky, PhD.

Expert witness experience for Dr. Polsky

Assignments in civil cases

Number of occasions retained as a dog behavior expert in civil matters:
Over 200.
Number of occasions retained as a cat behavior expert in civil matters:
Approx. 7.
Number of occasions retained as an dog behavior expert in criminal matters:
Approx. 20.
Division between work for Plaintiff vs. Defense:
50% plaintiff, 50% defense
Number of times testifying in Deposition:
Over 100.
Number of times testifying at trial:
Approx. 50.
States outside California where deposition or trial testimony has been given: Alabama, Alaska, Arizona, Texas, Nevada, New Jersey, Virginia, Florida, Georgia, South Carolina, Kansas, Washington, Idaho, Michigan.
Counties in California where deposition or trial testimony has been given (partial listing): Los Angeles, San Diego, Riverside, Orange, Ventura, Kern, Santa Barbara, San Bernardino, Alameda, Fresno, Merced, Sacramento, San Mateo, Tuolumne.

Assignments in criminal cases (partial listing )

1999. State of California v. Sandoval. Case # PA 031394. San Fernando Division, Los Angeles Superior Court by Judge Meredith Taylor.

1999. State of California v. Carter. Case # KA 044228. Pomona Division, Los Angeles Superior Court by Judge Judith Vander Lans.

1999. State of California v. Corral. Case # PA 029842. San Fernando Division, Los Angeles Superior Court by Judge Meredith Taylor.

2000. State of South Carolina v. Speagle. Case # F-945152. Fairfield County, South Carolina by Judge Paul M. Burch.

2000. State of California v. Graham. Case # SA 038179 Los Angeles Division, Los Angeles Superior Court by Judge Stephanie Sautner.

2000. State of California v. Gomez Case # KA 046685 Pomona Division, Los Angeles Superior Court by Judge Robert M. Martinez.

2000. State of California v. Bates. Case # BA 205430 Los Angeles Division, Los Angeles Superior Court by Judge Michael Kellog.

2001. People v. Robert Noel. Case # SCN 181813-2. Superior Court of California, County of San Francisco by Judge James Warren.

2008 People v. Moody. Orange County Superior Court (CA), Westminister Division.

Assignments in police dog attack cases

Number of occasions retained by plaintiff counsel: Approx. 6
Number of occasions retained by defense counsel: 1
Number of occasions qualified in court as expert on police dog behavior: 2

Example of report by Dr. Polsky

Example of report Dr. Polsky prepared for settlement purposes. The insurance carrier & plaintiff's counsel agreed to settle liability aspects of the case based entirely on opinions stated in this report.

Attorneys should not draw conclusions about their dog bite case based on the facts of this case or the conclusions and opinions stated in this report. This report has been abbreviated for posting purposes, important factual matters have intentionally been excluded, and it is presented for illustration purposes only.

To: Teresa Vint (Liberty Mutual insurance Co.) & Barry Goldberg, Esq.
(Beverly Hills, CA )

From: Richard H. Polsky, Ph.D. Animal Behavior Counseling Services, Inc.
May, 2003.

This report provides feedback to you regarding my opinions about the April 21st, 2002 incident involving the bite(s) inflicted to the right forearm of Mr. Ken Schweibish at the Bark Park in Calabasas, CA. (referred to herein as “the incident”). My understanding of the assignment I have in this matter is to provide to you unbiased and objective expert opinion, in the form of a report, concerning the dog or dogs who inflicted this dog bite injury to Mr. Schweibish.

Based on my detailed scrutiny of the all of the material I have collected or have been given in this case, I will state below the conclusions and opinions I have reached. First, I will summarize a description of how the incident occurred. Second , I will state the assumptions I have made which form the bases for my opinions. Next, I will provide discussion of the issues in this case most germane to determining which dog bit Schweibish. Last, I will state my overall conclusions.

Background

The incident the lead to the injury of Ken Schweibish occurred in late afternoon in a facility known as the “Bark Park”. Bark Park is an off lead, fenced-in park of approximately 2 acres. It is similar to the many other so-called "doggy" parks in the Los Angeles area. People ostensibly take their dogs to these parks for exercise and social interaction. While dogs are in the park they have the opportunity to freely interact and socialize with other dogs and people without restraint. Many of the people who utilize this park are regulars in that they know each other and they know each other's dog. Accordingly, dog owners who regularly patronize the Bark Park have considerable familiarity with the behavioral patterns and habits of the dog who are brought to this park. The principal humans in this case, Craig Podell, Gloria Bender, and Ken Schweibish, were all regulars of the park and their dogs all had some degree of familiarity with each other.

The principal dogs in question were the Great Pyrenees dog, Rocky, owned by Schweibish, the Rottweiler dog, Mac, owned by Bender, and a husky-like dog, named Icon, controlled by a person known as Dan. The whereabouts of Dan are not known and he was not available for interview nor was Icon available for examination. The dog owned Craig Podell, a Dingo named Jersey, was not involved in the incident that led to the injury to Schweibish.

Relevant information about Rocky, Mac and Icon

Rocky is large, 4 year-old reproductively intact, male Great Pyrenees male dog weighing approximately 110 lbs. At the time the incident, Schweibish says Rocky was in good health. He appeared in good health at the time of my examination. Schweibish has occasionally shown Rocky in dog shows usually without any problems, according to Schweibish. During my examination of Rocky, he did not display any signs indicating established aggressive propensities towards humans. He did not demonstrate tendencies of dominance. He accepted my handling and physical manipulation without incident. He reacted with normal territorial barking and charging, but without growling or snarling, when I approached and provocatively banged on the front gate to the Schweibish property. Past aggressive displays by Rocky towards other dogs were confirmed by Schweibish. However, Schweibish claims that Rocky only became aggressive towards another dog, for defensive reasons, when another dog tried to mount him. Schweibish asserts that Rocky was generally well-behaved and non-aggressive while at dog shows with the possible exception of one incident. On the other hand, Podell and Bender both adamantly assert that that Rocky was considerably more aggressive and dominant to dogs than Schweibish would lead one to believe. Prior to the incident, Rocky knew Icon and Mac and generally tolerated these dogs during his encounters with them. A photograph of Rocky appears in Figure 1.

Temperament of the dogs

      The 8 year-old neutered female Rottweiler owned by Gloria Bender, Mac, impressed me as a submissive dog towards humans both in a dominance and territorial sense. Mac showed no reactivity when I intentionally banged on the front door of the Bender residence at the time of my inspection. Bender says Mac was in good health and Mac impressed me generally as a healthy, friendly and temperamentally sound Rottweiler. I encountered no problem in physically manipulating Mac inside the Bender residence. Mac readily assumed a supine submissive position with relatively little resistance during my attempt (with the help of Teresa Vint) to measure the distance between her two upper and two lower canine teeth.

       In addition, I attempted to gather information from Bender regarding Mac's patrolling behavior, or as Schweibish calls it, Mac's policing behavior. Apparently, according to Schweibish, while at the Bark Park Mac has the tendency to insert herself between two dogs who became engaged in emotional, aggressive- like, encounters. Mac's tendency to display this sort of inserting behavior was confirmed by Bender, but she dismissed the notion that it was ever done with aggressive intent. Craig Podell also confirmed that, at times, Mac had the tendency to display this kind of behavior. Podell also stated that in contrast to Rocky, Mac was non-aggressive towards other dogs and very friendly towards people. Bender cogently emphasized that Mac was a very friendly dog and had never displayed any aggression whatsoever towards a human. Moreover, during my cursory examination of Mac at the Bark Park confirms what Bender says in that Mac appeared well-behaved, non-aggressive and relatively indifferent towards the other dogs and people who were present.

       Relatively little is known about Icon, the Husky type dog controlled (at the time of the incident) by Dan. Craig Podell and Schweibish both characterized Icon as dog-aggressive. I would estimate that Icon's weight to be approximately 45 lbs. Based on the assumption that Icon was a husky- type dog (independently confirmed by Bender and Schweibish), it would be fair to assume that the distance between Icon's two upper canine teeth and distances between the two lower canine teeth were not as great as the distances between the corresponding teeth for Rocky or Mac.

Versions of the incident given by principal witnesses

According to Podell and Schweibish, they along with Bender, were seated on a bench approximately 6 ft. from where the incident occurred. Prior to the incident, on that same day, Rocky had engaged in two previous aggressive skirmishes with Icon. These skirmishes were momentary and they did not resulted in injury to anyone. The second of these two previous skirmishes had concluded approximately five minutes prior to the incident that led to the injury of Schweibish. According to Schweibish, things appeared to have settled down between Icon and Rocky prior to the start of the third skirmish involving Rocky, Icon, Mac, and possibly one or two other dogs.

        According to Schweibish, the incident started when Icon came from behind the bench and started to engage Rocky aggressively. Rocky was standing nearby the bench. Schweibish says that when he noticed this happening, he immediately left the bench, came to the right of Rocky to position himself in front of Rocky, and then used his hands to push Rocky away from Icon.

      Next, according to Schweibish, he immediately restrained Rocky by putting his left arm around the chest of Rocky while simultaneously forceably pulling backwards on Rocky’s neck with his right hand. Figure 2 illustrates the posture Schweibish says he was assuming. When Schweibish approached Rocky to push him away from Icon, he makes no mention of the presence of any other dog, including Mac.

Shortly after Schweibish assumed the posture shown in Figure 2, he claims Mac suddenly came charging from his left in what he believes may have been an attempt to attack Rocky. He is unsure if Mac was successful in biting Rocky. He says when this happened he tried to thwart the advance of Mac by pushing Mac back with his left arm. This was momentarily successful. However, Mac immediately came forward again and, according to Schweibish, latched onto his right forearm which was position flush on the cervical part of Rocky’s spine.

Next, Schweibish says Mac released his bite and then immediately regripped with considerably more force and pressure. Schweibish says that he felt intense pressure with the second bite. Schweibish then believes Mack was pulled away from him, resulting Mac’s tooth tearing his right arm. Icon in turn continued to be restrained by Dan, thus ending the skirmish which according to Podell lasted approximately 10 seconds from start to finish. The bite marks to Schweibish's right arm, including the tearing injury, are shown in Figure 3. Distances between the bite marks are illustrated in this photo.

Podell's version of the skirmish is slightly different. He claims that all three dogs, Icon, Rocky, and Mac were already engaged in what he terms "mixing it up" when he and Schweibish left simultaneously the bench to intervene. He makes no mention of Mac suddenly coming into the left side into Schweibish. However, he places Mac to the left of Schweibish when Schweibish first started to intervene. He believes that Schweibish, in its attempts at intervention, put his arm between the dogs who were fighting and because of this action he was bitten. He is not sure which dog, or dogs, bit Schweibish, however. He did not witness the bite because he says was focused on Mac. Podell separated Mac from the other dogs by grabbing his hind legs and pulling him away “like a wheelbarrel.”

Assumptions

Based on the above description of how the incident happened along with my understanding of the behavioral and physical features of Rocky, Mac, and Icon, I will list the main assumptions I have used in forming my opinions. These assumptions are as follows (not necessarily in order of importance):

1. The only eyewitnesses to the incident were Schweibish and Podell. Podell did not actually see a dog bite Schweibish, however. Therefore the only eyewitness to the actual bite(s) is Schweibish. On the other hand, Podell has knowledge of the bodily position of Schweibish relative to the dogs during the incident;

2. Three principal dogs involved in the incident were Rocky, Icon and Mac.

3. The bite to Schweibish occurred when these three principal dogs, and possibly two or three other peripheral dogs, started “mixing it up” in an aggressive manner;

4. The incident lasted approximately 10 seconds. Intervention by Podell and Schweibish happened within 5 seconds after the incident started. At some point during the incident, Rocky, Icon and Mac were all close enough to bite each other or bite Schweibish;

5. Schweibish was able to intervene before Podell started pulling Mac away. Podell began pulling on Mac when Schweibish was in front of Rocky pushing him away from Icon or after repositioned himself to a bending position beside Rocky;

6. For the entire duration of the incident, Mac was positioned to the left of Rocky and Schweibish. Prior to Schweibish repositioning himself beside Rocky (i.e. assuming the bending position besides Rocky – Figure 3), Schweibish when he first approached was to the left of Rocky (i.e. Rocky on his right). When he started to push on Rocky, Rocky became positioned directly in front of Schweibish thereby placing Mac to the right of Schweibish. After Schweibish repositioned himself, Mac became positioned to the left of Schweibish. The position of Icon varied in relations to the position of Schweibish: first he was to the right, then behind, and then to the front after repositioning.

7. Schweibish was bitten by a dog who at the time of the bite had to have been perpendicular to his right arm.

8. Rocky was momentariarly perpendicular to Schweibish only at the very beginning of the incident – that is, just as he approached the dogs and before he started to push Rocky away from Icon.

9. Icon was momentariarly perpendicular to Schweibish only at the very beginning of the incident – that is, just as he approached the dogs and before he started to push Rocky away from Icon.
9. Mac was perpendicular to Schweibish at all times during the incident: namely, when he first approached, after he turned to push, and after he repositioned himself.

10. Schweibish was bitten either by either Rocky, Mac, or Icon, or possibly by more than one of these dogs, and not the peripheral dogs involved in the incident;

11. Schweibish was bitten at least twice, and possibly as many as three or four times. The bites to Schweibish occurred at the beginning of the incident when he first approached, or when hw was pushing Rocky backwards, or the bite(s) were inflicted after he repositioned himself besides Rocky.

12. Distances between the upper and lower canine teeth for Mac as well as those distances between the canine teeth for Rocky have been accurately measured as stated above. The distances between the canine teeth for Icon are less then the distances for either Rocky or Mac.

13. Podell removed and Mack from the incident by pulling on his hind legs and dragginghim away “like a wheelbarrel”;

14. At the time of the incident, Mac, Rocky, and Icon were all in a heightened emotional state conducive for the display aggressive behavior. Because of this heightened state of emotional reactivity and the past history of these dogs, any on one of these dogs, including Mac, had the potential to bite Schweibish.

15. Mac, in most circumstances, possessed a decidedly non aggressive temperament towards people and other dogs. Rocky and Icon, on the other hand, possessed tendencies for aggression towards other dogs. Rocky, like Mack, also probably possessed a non aggressive temperament towards people in most circumstances.

16. Two of the most noticeable bite marks on the right forearm of Schweibish show an exact separation of two inches between a single puncture wound and a tear of approximately 3 in. in length (Figure 2). Two other noticeable the puncture wounds are located towards the wrist on the left underside of the right forearm and the distance between these two wounds is exactly 1 inch.

17. Based upon the alignment of the two wounds separated by a distance of 2 in. (i.e the tear and the puncture), the direction of the tear on the right arm of Schweibish moves from his outside right forearm to the inside. Therefore, this injury was inflicted by a dog who was positioned to the left of Schweibish and perpendicular to Schweibish.

Issues relevant to determining which dog bit Schweibish

In order to determine which dog inflicted the bites to Schweibish, the following four issues must be scrutinize:

            1. The position of Rocky, Mac and the Icon relative to Schweibish during                   all phases of the incident;

            2. The bite wounds relative to the distance between the canine teeth;

            3. The significance of the tear across the arm of Schweibish;

           4. The temperament of the dogs and their past behavior in the context of                  the dog park.

According to Podell, Rocky, Icon and Mack were “mixing it up” when Schweibish attempted intervention. According to Podell, he went between the dogs. Podell says that Mac was to the left of Rocky.

Note that some aspects of Podell’s version differs from that of Schweibish’s. According to Schweibish, Mac was not near him. Rather, Rocky and Icon were face-to-face, both aggressively aroused, and he moved towards these two dogs in an attempt to push Rocky away from icon before he repositioned himself, kneeling down, to the left side of Rocky. After he was kneeling down is when Schweibish says Mac came from his left. Hence. If Schweibish version is believed, then during the first part of the incident Mac was not positioned properly (i.e. perpendicular) to inflict the injury. On the other hand, if Podel is believed, then Mac was properly positioned.

Regardless of which version one chooses to believe, it appears that Mac was positioned to the left of Rocky, and depending on which direction Schweibish was facing, Mac was either to the left of Schweibish or to his right. In the beginning of his intervention and before he turned and repositioned himself , if one believes Schweibish, Mac must have been to the right of Schweibish. After he repositioned himself and as he started to restrain Rocky with his left arm, Mac therefore must have been positioned to his left. Schweibish claims that Mac came from his left which is consistent with the recollection of Podell. Given this, Mac was properly positioned to inflict injury to the right forearm of Schweibish at any time during the approximately 10 seconds in which Schweibish was attempting intervention.

Conclusions

            Given that all three dogs were in an motivational state making them capable of biting Schweibish, in order to determine which dog(s) inflicted the bites to Schweibish one must utilize the following sources of information: (1) the position of each dog relative to Schweibish and Rocky as the incident unfolded , and (2) the nature of wounds on the arm of Schweibish in relation to the width between the canine teeth of each dog. Using this information, it seems reasonable to conclude that:
            1. Rocky probably did not inflict bites to Schweibish. His positioning relative to Schweibish lends credence to this conclusion. Moreover, the distance between his canine teeth do not match any visible wounds on Schweibish.

            2. The nature of wounds and the positioning of Mac make it certain beyond a reasonable doubt that she was responsible for inflicting some if all not all of the bites to Schweibish. In particular, the tearing on Schweibish’s arm could only have been caused by the action of Podell pulling on her away from Rocky and Schweibish. Of great significance is the two inch distance between the tearing wound and the relatively large puncture wound. This is an exact match with the distance between Mac's upper canine teeth, thus conclusively demonstrating that Mac inflicted this injury onto Schweibish.

            3. It is uncertain if icon inflicted any bites. Some of the smaller puncture wounds and other puncture wounds not clearly visible may have come from Icon. His positioning relative to Schweibish at the start of the incident make this a possibility.

        Given that Mac was the dog responsible for inflicting some of the wounds to Schweibish, it is likely he was bitten not as a result of Mac intentionally directing her bites to his arm but rather because his right arm and hand were on the neck area of Rocky and flush on the back of Rocky. The focus of Mac was probably entirely on a Rocky and her intention was to bite Rocky and not Schweibish. It's likely that Mac directed her biting behavior to the neck area of Rocky (as is common for many dog fights embroiled in a dog fight) and in the process mistakenly seized the arm of Schweibish. The incident ended and disengagement occurred as a result of Podell pulling backwards on Mac on her hind legs which in turn caused the tear to the arm of Schweibish.

Sincerely,

Richard H. Polsky, Ph.D.
Certified applied animal behaviorist

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