Background:
A case in Colorado was like an episode of Jerry Springer. In rural Colorado, 2 neighbors despised one another. Their ongoing dispute included fistfights, threats, an accusation of assault with a motor vehicle, and racial insults. Yet, that wasn’t enough to provoke criminal complaints or a civil lawsuit- until there was a deceased dog who met its demise from gunshot wounds.
The Plaintiff claimed the neighbor Defendant illegally shot her daughter’s service dog. In response, the Defendant claimed the dog got loose, aggressively chased her livestock, was shot legally, and wasn’t a service dog.
The defense counsel wanted me to support a position that the dead dog wasn’t a service dog. I advised there is evidence, albeit inconclusive, the dog met the federal ADA and Colorado statutory definitions of a service dog. Moreover, there wasn’t useful evidence to the contrary.
Nevertheless, there was a potential exculpatory defense. The Defendant, by Colorado law, was allowed to use lethal force if the dog was legitimately running or injuring her livestock (Colorado statute 35-43-126, “Dog Worrying Stock”). Unfortunately for the defense, there was no evidence of such beyond the testimony of the Defendant.
The Facts and Evidence:
All physical evidence indicated activity occurred exclusively outside the livestock paddock. Blood spatter evidence and the location of the dog’s body existed exclusively on the driveway. Furthermore, there was no video of the dog chasing or nipping livestock. Likewise, we lacked still photographs of a blood trail emanating from the paddock area.
Therefore, in preparation for a judge or jury ultimately deciding the dog satisfied legal definitions for categorization as a service dog, the CPT expert tried to work with defense counsel on properly valuing the dog. The Plaintiff (without equivalent receipts) claimed the dog cost $85K in purchase and training costs.
Valuation:
Valuation was a highly important issue. In Colorado damages for harm inflicted upon a service dog are trebled and the plaintiff may also recover attorney fees (Colorado statute 24-34-804 (3)-a-III). Consequently, the total potential award was $255K for actual damages, plus an unknown amount for pain and suffering (for the daughter’s time without her service dog), emotional distress, and attorney fees.
In the Defense’s favor, the Plaintiff’s valuation claims were preposterous, both from the standpoint of the dog’s purchase price and the alleged training cost.
The Plaintiff claimed she paid $5,000 cash for a mixed breed German Shepherd/Siberian Husky puppy. Neither the sire or dam had any evidence of titles or working accomplishments. The Plaintiff provided no evidence either parent dog worked as service dog or previously bred service dog progeny. Furthermore, neither parent had documented registration papers. Consequently, the mixed breed puppy did not arrive with registration paperwork from a sanctioning organization, such as the AKC, UKC, or a national Shepsky breed club.
On the internet, “breeders” sell a designer combination of the German Shepherd and Siberian Husky breeds. Breeders market the mix as a “Shepsky” or “Gerberian Shepsky,” with a market price for puppies of $500 – $1,500. Nowhere could the CPT expert locate a price anywhere approaching $5,000. Plus, no paperwork between the breeder and Plaintiff labeled the dog as a “Shepsky.” The vendor-client paperwork only stated one parent was a German Shepherd, while the other was a Siberian Husky.
Moreover, when selecting a service dog candidate, for multiple temperamental reasons a service dog trainer would choose many breeds before a Siberian Husky. Huskies are known for aloofness, independence, bolting, pulling, and predatory behavior toward small animals, all of which are qualities diametric to those preferred for a service animal. Yet, this puppy was purportedly bred specifically for service dog work.
The Contract:
It gets even weirder. The supposed contract between the Plaintiff and breeder/trainer did not include the breeder/trainer’s business name, kennel name, or address. Beyond the breeder’s name, the only quasi-professional connection was a phone number. To further raise suspicion, the CPT expert could not find a website, online listing, Facebook page, or social media post mentioning this supposedly well-respected breeder/trainer.
Since a search by name was not fruitful, the CPT expert next searched using the phone number. Once conducting a search of the phone number, the CPT expert found a person with the same last name, but a different spelling of his first name. Yet, his occupation was not “breeder” or “trainer.” He worked as a manager at an auto parts store.
Generally, a breeder will author the sales contract, spell his/her name correctly within the contract, and the contract will include a business or kennel name. Therefore, most likely, the contract document was fraudulently and retroactively constructed by the Plaintiff, solely for the purposes of processing a lawsuit.
Probable Fraud:
Regarding training costs, the Plaintiff alleged it cost $80K to train the dog via a series of private lessons. Yet, in her deposition, the daughter admitted receiving less than 5 phone lessons- and zero in-person lessons. Furthermore, when proving the cost of the lessons, the Plaintiff provided several handwritten receipts totaling to only $25,000. Equally revealing of potential fraud, all the payments of between $1,500 – $6,000 per payment, were allegedly submitted via cash. Not one traceable transaction. And all the receipts claimed services were for “in-home training” or “public training.” This contradicted the deposition testimony of the daughter, who admitted the training constituted only a few phone calls.
You can’t make this stuff up- unless you are the highly imaginative and apparently unscrupulous Plaintiff. Unfortunately, the client Defendant did not appear to greatly exceed the moral character of the Plaintiff.
The Plaintiff claimed her daughter suffered from hidradenitis suppurativa, which is a periodically painful and disabling dermic condition. Yet, the CPT expert never received medical documentation irrefutably confirming the daughter’s condition.
The Plaintiff stated the dog performed several behaviors related to the disability. Task behaviors included opening/closing doors, retrieving dropped objects, and providing psychiatric support during periods of intense physical pain. However, there were no videos validating the Plaintiff’s claims.
Ironically, one of the assistance behaviors putatively performed by the dog, opening doors, allegedly led to its death. The Plaintiff claimed the dog opened an exterior door of the house, bolted from the property, and ended up on the neighbor’s property. Once on the neighbor’s (Defendant’s) property, the neighbor shot the dog. According to the Plaintiff, the Defendant killed the dog inappropriately, without cause.
Was the Dog a Service Dog?:
Defense counsel wanted the CPT expert to opine that the dog bolting from the property and subsequently running livestock disqualified it as a service dog. The CPT expert responded that bolting from the property does not legally disqualify the dog and neither does running livestock.
To satisfy legal definitions for service dog categorization, 2 conditions need to be met. First, the recipient needs to suffer a disability as defined by the Americans with Disabilities Act (ADA). Second, the dog needs to perform a behavior that mitigates the limitations and effects of the disability. That’s it. The ADA and Colorado law do not establish proficiency, certification, or registration requirements. The dog bolting the home, albeit an undesirable behavior, is irrelevant to the dog’s satisfaction of legal service dog definitions.
Furthermore, there is no physical evidence corroborating the Defendant’s claim of the dog running her livestock- at the time of the shooting or on prior occasions. In contrast, third parties observed the dog previously bolt from its home and then progress across the street to play with grandchildren of the Defendant.
The CPT expert explained that whereas an attorney is hired to be an advocate for the party hiring the attorney, an expert should principally be an advocate for the truth. Thus, the expert should remain objective and impartial. The expert should only support a party to the case when the evidence supports that party, regardless of which side hires the expert. Therefore, a CPT expert will not automatically believe the claims of either party, unless physical evidence, circumstantial evidence, or probability validates the claims.
The Solution:
Consequently, Defense counsel and the CPT expert reached a compromise. The CPT expert opined that a “well-trained” service dog should not bolt its premises, run loose in the neighborhood, run livestock, or injure livestock. In addition, the CPT expert provided strategies to impeach the credibility of the Plaintiff. We wished to seriously dispel doubt upon the legitimacy and accuracy of the Plaintiff’s financial claims. The total cost for the mixed breed dog’s purchase and limited phone training should not exceed $1,000 – $2,000. Moreover, the CPT expert recommended the Plaintiff produce medical documentation verifying the daughter’s alleged medical condition.
The case ultimately settled and the Plaintiff relocated, of which the latter was definitely a worthwhile outcome for all concerned.
Colorado statute 35-43-126, “Dog Worrying Stock”