Dog Bite | Animal Behavior Expert Witness For Attorneys

Richard H. Polsky, Ph.D. CDBC
Los Angeles, California

“Bringing the science of animal behavior to attorneys”

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How Can Dog Expert Testimony Help the Attorney?

Dog bite expert testimony
Dog bite expert Richard Polsky, Ph.D. notes that dog expert testimony can help in resolving issues of liability.

Dog expert testimony often can prove helpful to attorneys litigating dog bite cases.

However, attorneys may be uncertain about the value of hiring a dog bite expert for expert testimony.  Costs may be a factor in bringing on an expert to the case, particularly when the value of the case is not great. However, when there is significant personal injury to justify costs of retaining an expert, testimony from a dog bite expert can make the difference between winning and losing.

Below, I address commonly asked questions about dog expert testimony.

Q. How can a dog expert  help attorneys?

There are a number of ways in which this can happen:

  • Determine if the attack by the dog was provoked;
  • Determine if the dog was aggressive by nature;
  • Determine if the owner or another significant person such as a property owner should have known about the potential dangerous nature of the dog given the  past history of the dog.  The dog expert can render opinion about if the incident was foreseeable?
  • Assess all animal behavioral factors associated with incident for the purpose of clarifying negligence;
  • Reconstruct how the dog attack incident happened to render an opinion on the credibility of the defendant’s vs. plaintiff’s version of the incident

Q. What assignments can dog expert undertake?

  • Conduct a behavioral inspection of the dog or location where the incident happened.
  • Formulate questions for the attorney to use in deposition or trial;
  • Prepare declarations or written reports;
  • Provide testimony to support or reject an attorney’s arguments about the dangerous nature of the dog that tie into questions about liability and negligence.

Q. How do the qualifications differ between dog attack experts?

In addition to one’s practical experience in working with dogs, other important criteria separate a qualified dog expert witness from other self-professed experts. Attorney should carefully note that:

  • Anyone can market themselves as a dog expert, and this is frequently done. Many of these individuals – who may possess excellent qualifications as dog trainers, or perhaps may have been involved in rescue work – possess no formal educational background in the science of animal behavior, or how the science can be meaningfully applied to the behavior of dogs. This could become important in cases where Daubert criteria are applied. When this happens and the methodology of the expert is challenged those lacking an academic background in animal behavior would likely be compromised.
  • Individuals lacking an academic background are also compromised in their ability to competently understand and apply from findings from the scientific literature to the fact pattern of the case.
  • Some purported dog experts join forensic professional societies, take weekend courses or one-day courses on dog behavior or dog bite forensics to project themselves as being properly qualified.  And in the state of California, the standards for dog bite expert witness qualification are slack, and almost anyone can qualify as long as what they put on their curriculum vitae seems appropriate to the Court. Attorneys with limited time may be inclined to retain the first expert who tells them what they want to hear.

In general, the attorneys will be best served if they retain a dog expert with the following qualifications:

    1. Certification through a well-recognized and established professional society dealing with canine behavior. Avoid generic societies that grant “Certification” to experts in many different fields. The expert should be required to maintain their certification through required continuing education;
    2. Publication record in peer-reviewed journals of veterinary medicine or animal behavior;
    3. Advanced degree in animal behavior from a recognized institution of higher learning;
    4. At least 10 years of direct hands-on experience working with dogs.

Q. What kind of testimony is needed to support legal arguments?

  • Some States, like California, have statutory strict liability for dog bites. Legally, if the incident happened in a state where strict liability applies then the defense may argue comparative fault by the plaintiff to limit liability. Hence, the dog expert can opine about evidence which supports the notion of comparative fault by the plaintiff. Note in the absence of direct behavioral related evidence the dog expert can rely on circumstantial evidence to support or reject the liability arguments of the defense or plaintiff.
  • In States where recovery is based solely on common law theory, evidence must be presented to demonstrate that the dog was dangerous by nature and that the owner or keeper had knowledge of this behavioral tendency. The dog expert can rendered testimony based on evidence from behavioral testing, animal control reports, and what other people (e.g. neighbors, veterinarian, etc.) say about the dog. The expert witness in animal behavior uses this information to formulate behavioral opinions about how (i.e. behavioral reconstruction) the incident happened.
  • An evidence based approach from findings in the scientific literature on dog behavior can be very convincing to the trier of fact, and a properly qualified dog expert is in position to testify such.  Findings from peer-reviewed studies on dog behavior often have direct relevance to issues arising in dog bite cases. The academically trained dog behavior expert is in a unique position to to sort scientific fact from fiction.

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