As a dog bite expert witness I have been occasionally contacted by attorneys who were clearly seeking opinions and testimony about dog behavior that would help them win their case. The impression was that the attorney was seeking an advocate. This should be avoided. The expert should not assume the role of an advocate. If it is done often enough eventually the opinions and testimony of the expert will come back to haunt them in future cases.
Rather the job is to provide objective and non-biased information about dog behavior and how such knowledge ties into the fact pattern in any given case. Ideally the knowledge should be drawn from the scientific literature on animal behavior and from practical experience gleaned by the expert’s work with dogs.
In this post, I give two examples which should help the attorney better understand the role of a dog bite expert witness. The examples taken are from commonly occurring issues that arise in dog bite litigation.
Dog bite reconstruction – Example #1
Golden retriever attacks on people, which cause significant personal injury are rare. Nonetheless, a plaintiff’s take on this case might be to downplay the supposedly docile nature golden retrievers and instead have the expert portray the breed as potentially dangerous dogs. Obviously this is nonsense and if the expert testifies as such the credibility of the expert will will surely be questioned by the trier of fact.
Nonetheless, in one lawsuit, the position of the plaintiff’s expert was that the two golden retrievers that attacked his clients possessed vicious propensities. the plaintiff’s expert opined that these vicious propensities existed prior to the date of the incident. This argument seemed improbable to the defense, however. Dr. Polsky was retained by the defense to reconstruct the incident and to evaluate the behavioral propensities of two Golden retrievers in question.
The plaintiff and defendant lived approximately three houses apart. The plaintiff testified the defendant’s dogs unexpectedly entered her garage an attempt to get to her small dog, tethered in the backyard behind the garage.
In her attempt to stop the defendant’s dogs from entering the backyard, the mother grabbed one of the golden retrievers by the collar, and her 10-year-old daughter grabbed the other golden retriever by its collar. In the process, both plaintiffs were injured, dragged a substantial distance, and bitten.
Important issues focused on the temperament of the golden retriever dogs, their ability to drag a person over distance, and the golden retrievers’ willingness to enter an unfamiliar garage to attack an unknown person. Did these dogs possess a temperament consistent with a dog who would bite an unknown person in unfamiliar surroundings? Did the dogs possess the willingness and strength to drag a 70 lb. child?
Dr. Polsky conducted a behavioral examination to collect information to answer these questions. Temperament tests were conducted. Based on the results from this testing, the behavioral history of the dogs, and the totality of the evidence, the conclusion reached was that these dogs lacked the capability or the willingness to engage in the behaviors alleged by the plaintiff. These dogs clearly did not possess dangerous propensities as alleged by the plaintiffs expert.
Dog bite provocation – Example #2
Provocation is by far the most common issue the dog bite expert witness is retained to about. Hence, in this regard the services of an animal behavior expert can help the trier of fact sort out fact from fiction.
I was called to do so in one such case. It involved a pit bull which viciously attacked a 25-year-old plumber. The incident happened during the plaintiff’s visit to a plumbing supply yard.
The fact pattern was as follows: soon after the plaintiff entered the premises, he approached an employee who was feeding the pit bull. The pit bull was a guard dog for the premises. The plaintiff stopped approximately 2 feet from the dog to ask the employee a question. The pit bull growled and launched an attack on the plaintiff, which caused severe injuries to his legs.
Dr. Polsky was retained to render opinion regarding: (1) The probability of an incident like this happening given the the breed of dog in question, the past history of the dog, and the circumstances surrounding the attack, and (2) whether the plaintiff’s actions were provocative to the pit bull.
From the perspective of animal behavior, a key question that needed answering was as follows: Did the plaintiff’s action cause the dog to attack? deposition testimony was reviewed as well as evidence from witnesses. Also, the animal behavior literature about the behavior pit bulls was considered in formulating opinions
The totality of the evidence suggested that plaintiff’s actions were (1) benign and (2) were not tied to the causation of the attack and (3) the defendants were negligent in allowing their dog to feed in a public area.
Takeaways for attorneys about the dog bite expert witness
- The dog bite expert witness should not play the role as an advocate.
- Anyone claiming to have experience with dogs or expertise in dog training can market themselves to attorneys as a dog bite expert witness, or have their name listed in expert witness directories. As such, careful vetting of individuals promoting their expert witness services is needed.
- There is a lot of nonsense floating around about dog behavior. Anthropomorphic reasoning abounds, particularly by dog trainers masquerading as experts in canine behavior.
- Decisions about liability in dog bite litigation should be based in part whenever possible from scientific evidence about dog behavior. Hence the need for an expert with training and a track-record demonstrating competence in the field of animal behavior science. Findings from the science of animal behavior can help the trier of fact sort out fact from fiction about dog behavior.
Animal behavior science and dog behavior
- Which dogs bite? A case-control study of risk factors.
- What is a dog bite? Perceptions of UK dog bite victims
- Dog bite mark analysis: A case study highlighting the bite mark analysis, with emphasis on differences between dog and human bite marks
- The Incidence of Facial Injuries From Dog Bites
- Testing for human direct aggression in dogs
- The environmental causes aggression
Meet Dr. Polsky
Dr. Polsky’s has provided dog expert witness consultation and services to attorneys for over two decades. Read Dr. Polsky’s curriculum vita.