April 2, 2018
CPT’s Mark Spivak is an experienced and talented expert witness in criminal and civil legal cases that involve animal behavior, animal training, animal handling, or animal husbandry practices. Mark represents either the plaintiff or defense. His one rule before accepting an assignment is that he must have passion for the case and for the attainment of justice for the client.
Two recent cases fulfilled the referenced criteria. The first case was a criminal matter in Georgia where the client was facing murder charges arising from the actions of dogs that were under her care. The second case was a civil matter in Mississippi, filed in federal district court, where the client, a military veteran who completed two tours of duty in Afghanistan and Iraq, was seeking damages after she and her service dog were denied complimentary passage by American Airlines and then further mistreated upon her eventual arrival.
In the first case, a 71-year old grandmother was taking care of her grandchild while the child’s mother was at a tanning salon. The grandmother took the child to her house. The grandmother owned two dogs and maintained two additional dogs owned by her daughter.
The two dogs she owned were kept in a backyard pen. They were friendly with people and always interacted safely with the grandchild.
The two additional dogs were a male and female Pit Bull that had escaped the backyard enclosure on multiple occasions, whereupon they aggressively threatened walkers and joggers. Consequently, after receiving multiple animal control violations the grandmother kept the dogs indoors. She only allowed them outside when they were handled on-leash.
The two Pit Bulls were typically friendly to familiar adults, although the male dog had bitten or nipped members of the family, but never severely. Despite exhibiting aggressive postures and vocalizations when loose, they had never bitten anybody outside the family. Nevertheless, the grandmother had reservations about how the dogs may act around the 20-month old grandchild. She was uncertain whether they would behave in a friendly manner, hurt the child inadvertently via over exuberance, or injure the child purposefully with aggressive intent. Thus, she kept the Pit Bulls and the grandchild apart.
On the day key to the case the grandmother took the child to her home to accompany her while she fed the dogs in the backyard pen. She then closed the pen and went to her rear kitchen door. Before heading back to the tanning salon to meet her daughter, she elected to grab a piece of paper that was on a kitchen counter within arms reach of the rear door.
To prevent the exit of the Pit Bull dogs, she carefully opened the door just a crack so that she could squeeze her arm through and obtain the paper on the nearby counter. Unfortunately, she was not careful enough. The male dog wiggled its head through the narrow crack of the partially open door, then lunged its body through, which overpowered the grandmother and allowed the escape of both dogs into the backyard. Upon seeing the child the male dog immediately pounced, bit, and shook. The female dog then packed with the male dog. The grandmother was able to quickly repel the female dog. However, the male dog was stronger, more aroused, and more stubborn. It was likely several minutes before she could sufficiently take hold of the male dog’s collar to pull him off the child and secure him and the female dog within the kitchen.
Once the dogs were secure inside the house, she carried the child to her car and raced to an urgent care facility that was only a few miles from her house. The doctor sensed the exigent dilemma and ran to the waiting area in less than a minute upon the child’s arrival. Unfortunately, his body was mutilated and he was pronounced DOA due to exsanguination and shock.
The police promptly investigated. Later that evening they arrested the grandmother after charging her with second degree murder, second degree felony cruelty to children, and involuntary manslaughter. The murder charge carried a minimum 10 year sentence.
For 7 months the District Attorney intractably sought the murder conviction. One week before the date of trial the legal team brought CPT Expert Mark Spivak into the case. Mark’s role was to analyze the history and behavior of the dogs, the husbandry practices of the grandmother, the actions of the grandmother on the day of the incident, standard husbandry practices, local animal control laws, the specific criminal statutes upon which she was charged, and any other information pertinent to the dogs, the grandmother, animal behavior, or legal precedent for the purpose of achieving exoneration based on issues of fact or law. Mark wrote a thorough case analysis based on available documents, participated in strategy meetings with the legal team, and was prepared to testify at trial.
The main focus of the resultant strategy was to dispel the prosecution’s argument of recklessness, as by law without recklessness there could be no conviction for the cruelty to children or murder charges. After submission of the CPT report to the legal team and a video conference to update strategy, the legal team scheduled a meeting with the District Attorney. However, this time the District Attorney started to doubt his case. He realized that after Mark’s testimony he would have a difficult time securing a unanimous jury verdict that beyond a reasonable doubt the Defendant acted recklessly. Subsequently, although he refused to discuss a plea for 7 months, 2 days prior to trial he offered to dismiss the 2 more serious charges if the Defendant agreed to plea guilty to a misdemeanor involuntary manslaughter charge, with a suspended sentence and no jail time, which we considered a victory. Thus, we presented the plea to the client, who accepted the terms of the plea. The attorney concurred that equivalent pre-trial plea results would have been unlikely without the inclusion of CPT’s expert witness services to the legal team.
To read more about the legal aspects of the case, please read the detailed case analysis entitled “Was it Murder? Or Merely an Accident?” within the Expert Witness services section of https://cpt-training.com/.
In the second case, the Plaintiff, a female military veteran who had completed two tours of duty in Afghanistan and Iraq, and her service dog arrived at the ticket counter at the Manhattan Regional Airport in Manhattan, Kansas. She already had reservations for a flight to Biloxi, Mississippi and believed that she informed the carrier that she would be accompanied by her service dog.
The Plaintiff suffered a TBI and PTSD from her experience in the military war theater. She is considered 40% disabled by the Department of Veterans Affairs and receives monthly disability payments arising from a service-connected disability. Yet, at first glance she does not appear disabled. She is very fit, competes in triathlons, and coaches triathletes. Regardless, there are a large number of “invisible disabilities” that are not immediately diagnosable to the naked eye.
The ticket agent was disbelieving that the Plaintiff was disabled. He replied that she did not have proper documentation, did not provide sufficient 48-hour notice, could not have her Labrador Retriever accompany her in the cabin, and could only have him board the flight in cargo, and only if she paid a $150 fee. The Plaintiff argued. She then spoke with supervisors and customer service. However, the ticket agent, his associate, and his superiors remained steadfast that she would need to pay a fee. She left the airport in tears.
The next day the Plaintiff returned to the airport with her service dog. This time she brought documentation in the form of a letter from a licensed mental health professional. The letter was on VA letterhead. Still, the ticket agent and his cohorts were unmoved. They stated the letter was invalid because it was not dated. Again, the Plaintiff who admirably served her country, received commendations from her wartime efforts, and suffered a permanent disability due to her sacrifice left the airport in tears.
However, some of the old fighting soldier sprang forth. She had additional conversations and emails with American Airlines customer service and executives. In the conversations and correspondence she threatened to sue. When the wheel squeaked loud enough it was greased.
She returned to the airport the next day, two days after her originally booked flight, and was allowed passage with her service dog, even though her documentation was the same as the day previous. Yet, the drama was not over. Upon her arrival, although she did not order a wheelchair, as her disability did not require a wheelchair, gate personnel loudly announced her name and that they had a wheelchair for her. Furthermore, despite her repeatedly declining the wheelchair, the airline gate staff continued to publicly bring attention to her and embarrass her in a harassing and malicious manner. Thus, she sued.
The legal case includes a number of complex issues surrounding differences between the Americans with Disabilities Act (ADA) and the Air Carrier Access Act (ACAA), the application of each law to different geographic parts of the airport, the actions permitted and not permitted within each law, the definition of a service dog within each law, and the spirit of each law as described in multiple Code of Federal Regulations (CFRs).
Mark Spivak analyzed federal law, reviewed video, documents, interrogatories, and depositions, interviewed the Plaintiff, evaluated her service dog, and wrote an affidavit crucial to strategy development. Mark also wrote a rebuttal to the report submitted by the Defense Expert. The affidavit and rebuttal analyzed key factual and legal elements crucial to the Plaintiff’s case. Upon submitting the reports Mark also participated with the lead attorney in discussions reviewing negotiation strategy, case strengths, and case weaknesses. Moreover, we were prepared to go to trial should the Defendant fail to submit an equitable settlement offer, as we believed a jury would be highly empathetic to the plight experienced by the Plaintiff. Ultimately, the CPT Expert Report proved vital in the Plaintiff receiving a satisfactory settlement that avoided trial, which was one of the goals of the Plaintiff, as she had recently relocated to Italy, which would have made a trial logistically inconvenient and highly stressful.
To read more about the legal aspects of the case, please read the detailed case analysis entitled “The Case of the Service Dog Denied Passage” within the Expert Witness services section of https://cpt-training.com/.
I hope the above case studies persuasively communicate the excellence of CPT’s expert witness services. If you are an Attorney, Plaintiff, or Defendant engaged in a criminal or civil action involving dog behavior, dog handling, dog training, or dog law, please contact CPT to learn how CPT’s expert witness services may strengthen your case.