The use of criteria set forth in Kelly Frey for the admissibility of evidence in canine bite cases by the California expert witness is sorely needed. Trial judges overseeing civil cases involving personal injury caused by dogs, particularly in California, have repeatedly failed to apply these criteria when ruling on what evidence should be placed before a jury by the canine expert. As a result, a lot of nonsense about dog behavior, dog aggression, and dog bites is allowed into evidence, and this nonsense is almost always propagated by dog bite experts and dog trainers who lack training in the science of animal behavior.
Knowledge about the fundamentals of animal behavior science is absolutely necessary for an expert to render competent analysis in dog bite litigation. Unfortunately, this is usually overlooked by most attorneys. Attorneys need to be more forceful in insisting that the experts they retain to opine about dog behavior use a scientifically-based analysis which meets the standards set by Kelly-Frye.
Poorly qualified animal behavior experts take advantage of California evidence code EVID 720 which states the qualifications for an “expert” regardless of specialty.
(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.
(b) A witness’ special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.
Animal behavior opinion by a California dog bite expert witness can meet Kelly-Frye criteria provided that the following is understood:
- Animal behavior is an established scientific discipline and properly qualified animal behaviorists exist to render an expert opinion. Animal behavior is a multidiscipline, observational science taught at nearly every major university in the world. Animal behavior science has become increasingly technical in nature, and advanced degrees are offered in this field. Many academic, peer-reviewed journals dedicate themselves to original research in animal behavior, including research about canine behavior and dog aggression. Various certification programs are available to canine behavioral scientists. The qualifications of a dog bite expert lacking certification in animal behavior surely need to be questioned. I know of dog bite experts who misleadingly present themselves and dups attorneys into believing that they are “certified”, but certified in what? The certification of these self-proclaimed dog bite experts is not in the field of animal behavior!
- The methods used in animal behavior are reliable and can be used to formulate an opinion about legal issues such as liability and negligence. Specifically, the science is concerned with an objective description in terms of what an animal does, and the multitude of variables that affect overt behavior, and not what the dog is thinking or how the dog is feeling. Data in the science is collected through a variety of means, which include interview techniques, surveys, behavioral rating scales, video and audio analysis, and blood, urine, neurological and genetic analysis. The methods used in the science are no different from the methods the applied animal behaviorist has at his disposal to analyze a dog involved in a dog bite incident.
- Principles and findings developed in animal behavior can be applied to the actions of a dog in any given dog bite case. Moreover, these principles and findings would be shared by the majority of animal behaviorists. Opinions understandably can differ amongst experts, however. Specifically, some broad sweeping generalizations from the science of animal behavior would indicate that: (a) Aggressive behavior in dogs can become habitual and is affected by contextual variables, learning experiences and reinforcement history; (b) Owner behavior has a marked influence on the behavior of companion dogs; (c) A dog’s temperament in part is affected by breed characteristics and past experiences, and is predictive of future behavior in a given set of circumstances; (d) Aggression in dogs is patterned and has predictable sequences when directed towards a human.
- Information derived from the observations of witnesses, and owner descriptions about the behavioral and medical history of the dog and how the dog was maintained, provide sufficient information for the animal behavior expert to render credible and scientifically based opinions, provided that these observations are consistent with animal behavior theory.Concluding thoughts about the canine expert and animal behavior science
Animal behavior expert opinions about dog behavior are reliable and can be proffered with a low error rate provided that the expert:
- (a) Has a scientific background in canine behavior which in turn allows the expert to apply findings from the academic literature to real-world situations;
- (b) has collected a sufficient amount of discovery about the dog from reliable sources or verified temperamental testing procedures.
Read more about Kelly Fry and Daubert as applied expert witness testimony
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
- What is the Daubert standard?
- Frye’d by admissibility standards: does the standard of admissibility in state court make any difference in practice?
- Frye standard – Wikipedia page
Richard Polsky, Ph.D. is animal behavior expert witness located in Los Angeles,CA. Dr. Polsky provides expert witness services to attorneys handling personal injury caused by dogs. Contact information can be found here.