CPT President Mark Spivak is an experienced and talented expert witness for either plaintiff or defense purposes. Judges have qualified Mr. Spivak as an expert witness in both civil and criminal matters. Mr. Spivak’s experience includes researching, investigating, writing convincing affidavits, and testifying on behalf of clients while working closely in conjunction with the client’s attorney.
Civil Dog Bite Cases: Much of the CPT expert’s efforts involve plaintiff or defense work in civil dog bite cases. The majority of civil work supports plaintiffs. Nevertheless, if evidence supports the defendant, then CPT will support the defense in a civil dog bite case. CPT expert witness in dog behavior Mark Spivak assisted […]
Much of the CPT expert’s efforts involve plaintiff or defense work in civil dog bite cases. The majority of civil work supports plaintiffs. Nevertheless, if evidence supports the defendant, then CPT will support the defense in a civil dog bite case. CPT expert witness in dog behavior Mark Spivak assisted plaintiff’s counsel in the following case.
In Halifax County, North Carolina a local postal worker walked her route. Mailboxes in the neighborhood were adjacent to the door of each home, rather than on the street. Consequently, once reaching the neighborhood, the letter carrier parked her postal truck. She then placed mail for nearby homes in a large bag, and then walked up and down a street. Subsequently, she would return to her truck, move it up a block, and repeat the process.
The route she carried that day was formerly her everyday route. However, she took a 3-year hiatus from walking, due to an incapacitating hip injury. The severe hip injury required surgery and ample recovery time. During this 3-year period, to accommodate her disability she worked in-office at a USPS branch. However, just as April is part of the Spring season, a spring returned to her step. Thus, she was again ready to deliver mail by foot.
To test her endurance, the day prior she delivered half the route. On the day of the incident, she reacquainted to the remaining half. Unfortunately, because of her time away, she was unfamiliar with neighborhood dogs inhabiting the locale.
After parking her USPS truck, she packed her bag with the neighborhood’s mail. She next exited the truck and walked up the block. Feeling good about her vim and vigor, she crossed the street. Once crossing, she prepared to deliver mail down the block, in a direction toward the parked truck.
At the first house in the downward direction, the letter carrier progressed from the sidewalk to a short concrete path directed toward the door of the home. Once reaching a raised stoop, she climbed 2 steps to stand atop the stoop. She next placed her right hand upward near the home’s storm door, in case it somehow flew open. The postal service taught the letter carrier to preventively raise her hand proximal to a storm door if the interior door was left open, which was the case at this resident’s home.
While standing on the stoop, she next placed mail in the box attached to the front of the home. The box was positioned slightly to the left of the door. Once delivering the resident’s mail, the postal carrier turned 180 degrees. After reversing direction, she headed down the stoop, whereby she intended to walk toward the sidewalk.
However, while on the first step her walk was suddenly and violently interrupted. A large, highly territorial, and highly aroused Pit Bull dog burst open the glass storm door.
It is not known how the dog rapidly exited the door. Perhaps the last departing resident did not close the door properly when leaving the property (residents frequently exited via the front door, rather than the garage, as they typically parked their cars on the driveway). Maybe the door was in an undisclosed state of disrepair, whereby it could not close properly. Possibly the dog inadvertently opened the door by jumping, landing atop the horizontal handle, and then pushing the lever downward. Regardless, incontrovertibly the dog escaped the premises by departing through the area that should have been adequately secured by the storm door.
Once opening the door, the Pit Bull lunged toward the unaware postal carrier and seized upon her ankle. The dog forcefully grabbed her ankle, growled, violently shook the end of her extremity, and knocked the postal carrier to the ground. The postal carrier’s frightened, clamorous screams alerted one of the homeowner’s adult sons. The son ran outside attempting to aid the postal worker by dislodging the thrashing dog from her ankle and lower calf. The untrained dog refused to cooperate, increasing damage to the innocent postal worker.
Finally, the son removed the dog from the victim’s ankle. However, all was not over. The frenzied dog attacked again. This time lacerating her thigh. At least, on a good note, the homeowner’s son had an easier time removing the dog during its second bite.
The son then secured the dog inside an interior room, while his brother tended to the postal carrier’s wounds. Concurrently, the victim postal worker called 9-1-1. EMTs quickly arrived upon the scene, whereby they took the postal carrier to a local emergency room.
As a result of her dog bite injuries, the postal carrier was away from work for several months, required 3 months of medical treatment to facilitate wound healing, suffered great pain, continues to suffer intermittent pain, incurred inexpungible scarring, and was assessed by medical professionals as having a permanent partial physical disability. In addition, she now has PTSD, characterized by incapacitating panic attacks when observing large dogs. The panic attacks inhibit the letter carrier’s ability to function in her job and to enjoy her occupation. Moreover, panic inhibits her social life, as she routinely declines invitations where she might cross the path of a dog, even a service dog. Consequently, since the injury she is more socially isolated from family and friends.
Her Postal Service workmen’s compensation plan covered most of her medical bills, but did not compensate her for the totality of her injury. Therefore, she sought the aid of an attorney to equitably indemnify her for the effects of her physical, emotional, and financial damages.
Fortunately for the plaintiff, the attorney had worked previously with CPT and realized the benefits of including a CPT expert as a team member. The CPT expert promptly analyzed interrogatories, depositions, witness statements, police reports, animal control reports, veterinary records, medical records, site photographs, victim injury photographs, photographs of the dog, and pertinent county and municipal codes. Throughout the process the CPT expert consulted plaintiff attorneys in the development of deposition questions and overall strategy.
While the CPT expert was writing his report the case favorably settled.
Upon the case’s conclusion, the lead attorney wrote to the CPT expert: “Your presence gets the other side to pay more than anticipated. Seeing your CV definitely is a way to get the other side to pay up. When dog bite cases come in we will definitely give you a call.”
Background: The following case story synopsizes a successful motion to suppress. Motions to suppress can be difficult to win. However, with effective attorney-expert collaboration and a broad analysis that includes legal, behavioral, and biological/scientific arguments, victory is possible. The Traffic Stop and Search: In Texas, a police officer made a traffic stop of a Land […]
The following case story synopsizes a successful motion to suppress. Motions to suppress can be difficult to win. However, with effective attorney-expert collaboration and a broad analysis that includes legal, behavioral, and biological/scientific arguments, victory is possible.
In Texas, a police officer made a traffic stop of a Land Rover, allegedly for tinted windows that exceeded allowable limits. However, the officer failed to fulfill the mission of the traffic stop, even after backup assistance arrived. Instead, the officer began by requesting identification and then removing the driver and his Boston Terrier from the vehicle. He next conducted a prolonged field interview, followed by an exterior K9 search.
During the search, the K9 physically contacted the vehicle with its paws and snout. Moreover, the K9 never sat, the indication behavior required of the dog in all his training runs. Yet, the officer determined the dog detected narcotics, whereupon he allowed the dog inside the vehicle. While inside the vehicle, the K9 stood over a spot in the hatch area of the Rover. The officer interpreted the dog’s behavior as a second alert.
A subsequent interior search by backup officers seized 2 kilos of cocaine. Interestingly, the backup officers located the cocaine within a small bag placed on the rear seat. Officers did not find contraband in the hatch area.
The driver’s criminal defense attorney filed a motion to suppress, for which he hired CPT’s expert services. The CPT expert reviewed body and car cam videos of the vehicle search, a video of another search conducted by the same handler/K9 team, 6 months of training logs, pertinent certifications of the handler and dog, and police reports pertaining to the event.
CPT then assisted the attorney in formulating strategy for arguing violations of the driver’s 4th and 14thAmendment rights. The CPT expert also documented training errors from prior to the event, handling errors pertinent to the event, and reasons why the dog’s training program neglected to prepare the K9 for detecting the odor of large quantities of cocaine.
In his report, the CPT expert cited case law from Terry v. Ohio, Rodriquez v. USA, Illinois v. Caballes, USA v. DiGiovanni, Commonwealth of Kentucky v. Clayborne, Felders v. Malcolm, Idaho v. Dorff, and others. Applying case law, the delay of the traffic stop was not “de minimus.” The officer extended the stop to conduct a criminal investigation upon a hunch. Ignoring traffic violations while performing a lengthy field interview breached precepts ruled upon in Terry, Rodriguez, DiGiovanni, and Clayborne. The officer facilitating his K9’s entry into the driver’s vehicle constituted a warrantless search. The warrantless search violated principles described explicitly in Felders v. Malcom. And the officer allowing his dog to physically contact the vehicle during the exterior search constituted intermeddling and trespass, as described in Dorff, since the search went beyond the allowances for a free-air sniff permitted in Caballes.
The defense attorney appreciated CPT expert Mark Spivak’s knowledge. Mark’s subject expertise saliently extends beyond the knowledge typically possessed by a canine behavioral expert. Moreover, the breadth of Mark’s legal and canine behavioral knowledge facilitated a more thorough and powerful argument for suppressing evidence.
Upon examining the evidence and conducting pertinent online research, the CPT expert prepared a detailed report. In addition to the legal arguments listed above, Mark’s report included procedural and scientific information that strengthened the motion to suppress. The CPT’s expert’s experience in canine neuroscience and olfactory research proved beneficial. Accordingly, the report included a scientific review of the biological and cognitive process of canine olfaction, optimal training protocols, and scientific explanations for the dog’s failures.
Mark and the attorney used the report as a foundation for pre-hearing prep. The report was useful for preparing Mark’s forthcoming testimony. Likewise, the report was practical for preparing attorney questioning of State law enforcement and expert witnesses.
Based upon trial prep strategy, Mark planned to testify regarding the biology and psychology of scent detection, verbal cuing by the handler, illegal procedural errors by the handler, and reasons the dog may fail to cognitively recognize field samples as a target odor when the sample differs in packaging, mixture, concentration, degradation, and/or quantity from the sample repeatedly used in training. However, after hearing the constitutional evidence presented by the attorney, the judge halted further testimony. Our motion to suppress proved successful.
The Prelude: In Michigan, a Plaintiff with a Norwegian Elkhound and an Australian Cattle Dog arrived at a gated public school soccer field. Once unlocking the gate, she allowed her dogs to play and to chase geese off the fields. A Board of Education employee in charge of the grounds provided the Plaintiff a key […]
In Michigan, a Plaintiff with a Norwegian Elkhound and an Australian Cattle Dog arrived at a gated public school soccer field. Once unlocking the gate, she allowed her dogs to play and to chase geese off the fields. A Board of Education employee in charge of the grounds provided the Plaintiff a key to the field. The Board permitted the key for her dogs to deter the presence of geese, which limited avian fecal deposits. The intent was for the generally inaccessible field to remain cleaner and more hygienic when children played soccer.
On the date of the incident, the Plaintiff invited the Defendant, the Defendant’s Bernedoodle, and the Defendant’s sister’s Goldendoodle to join the activities. The meeting was planned. The Plaintiff and Defendant were friends who periodically scheduled dog get togethers. They treated the gated middle school soccer field as their impromptu private dog park. The persons and dogs typically got along and had a good time. Thus, supervision of the dogs waned as the dogs became more familiar and the persons trusted the dogs’ behavior.
The 4 dogs played amicably for 15 minutes. Subsequently, a person moderately familiar to the Plaintiff passed outside the gate while walking her large, male Labrador Retriever mix. The acquaintance and her dog then independently entered the gate to enjoy the private “dog park” activities. The Lab mix owner’s presence was unplanned. Moreover, she did not receive an express invitation from either the Plaintiff or Defendant.
The Plaintiff’s dogs and the Defendant’s dog were familiar with the Lab mix. However, the Defendant’s sister’s dog, for which the Defendant had agency, was not familiar with the Lab mix.
There were differing witness statements regarding what happened immediately subsequent to the entrance of the fifth dog. The Plaintiff claimed the Lab mix lifted his leg and urinated on the Defendant. The dog then raised his hackles when approached by the Defendant’s sister’s dog. Accordingly, the Plaintiff and the Lab mix’s owner walked toward the opposite end of the field . The Plaintiff stated she walked away to redirect the Lab mix and separate the dogs.
The Defendant claimed the Lab mix urinated on her distant from the location of her sister’s dog. Per her recollection, her sister’s dog was playing amicably with the Plaintiff’s dogs. She did not believe her sister’s dog interacted with the Lab mix.
When the owner of the Lab mix was deposed, she stated she was concerned about dogs surrounding her dog. However, she did not observe raised hackles or any behaviors indicating disharmony between the dogs.
Nevertheless, amongst the depositions of all 3 witnesses, there was consensus that:
Resultantly, while energetically running about the field, outside the control of his handler, the Defendant’s sister’s dog collided with the Plaintiff at a high rate of speed.
The dog contacted the Plaintiff at a 45° angle upon her posterior right thigh, immediately superior to her knee. The impact spun the Plaintiff, whereupon she toppled to the ground. Mechanical force from contact with the dog and/or the ground, perhaps with abnormal orthopedic torsion related to the angle and location of impact, and deceleration forces once contacting the ground, resulted in a fracture of the Plaintiff’s right tibial plateau.
Treatment for the severe injury required surgical reduction under general anesthesia. The surgical procedure included the implantation of a metal plate, metal screws, and 32 staples. Furthermore, the Plaintiff suffered great physical pain, was non-weight bearing for an almost 3-month period, experienced permanent scarring about her leg, needed dental treatment to replace a crown lost during the incident, required anti-coagulation injections in her stomach for a 30-day period, lost 2 days of work while undergoing surgery and recovery, and remains psychologically cautious due to an increased risk of injury from falls.
The Defendant agreed the collision with the dog was the proximate cause of the Plaintiff’s substantial injuries. She also agreed she had agency for the dog. Nevertheless, the Defendant and her insurance company disputed whether the cavalier manner in which the Defendant supervised the dog and her associated actions and inactions constituted negligence.
The CPT expert supported the Plaintiff’s case by opining that the Defendant did not act with the “watchfulness, attention, caution, and prudence” inherent to the definition of duty of care. The expert also helped Plaintiff counsel in designing deposition questions.
Subsequently, in her deposition responses, the Defendant agreed:
The strategically constructed deposition questions accomplished our objective of establishing scienter. Nevertheless, the fact that injury resulted from a collision, not an aggressive bite, provided a potential roadblock. Therefore, the CPT expert conducted research on pertinent case law.
The CPT expert found multiple cases strengthening the client’s position. In Trager v. Thor, the Michigan Supreme Court wrote a court must consider the “normal characteristics of the animal” and “characteristics of which the Defendant has knowledge.” For a duty to arise, the owner must have “knowledge of some dangerous propensity” or awareness “foreseeable harm might arise.” Within the opinion of Hiner v. Mojica (MI), “the possessor has a legally recognized duty to control the animal to an extent reasonable to guard against foreseeable danger.”
Other states also had relevant judicial opinions. From Owen v. Hampson (AL), “The law makes no distinction between an animal dangerous from viciousness and one merely mischievous or dangerous from playfulness, but puts on the owner of both the duty of restraint when he knows of the animal’s propensities.” In a New Jersey case, a judge ruled impact from a dog jumping on a person can be even more injurious than wounds resulting from a bite.
In Collier v. Zambito (NY), “Vicious propensities include the propensity to do any act that might endanger the safety of the persons.” Even when the animal “behaves in a manner that would not necessarily be considered dangerous or ferocious,” but the manner constitutes a “proclivity that puts others at risk of harm,” can be deemed “to have vicious propensities… when such proclivity results in the injury giving rise to the lawsuit.”
Yet, Collier v. Zambito also states “normal canine behavior” such as “running around” is not evidence of vicious propensities. Lauder v. Vealey (NY) declared the burden is upon the Plaintiff “to produce evidence that Defendant had notice of a proclivity… to collide with people.”
From New Jersey, “scienter must be proved to establish liability when a dog injures a person, but does not inflict a bite (Januzzelli v. Wilkins, Hayes v. Mongiovi). “Scienter extends to the trait or propensity which has caused the damage, and knowledge by the owner that the disposition of the animal is such that it is likely to commit a similar injury to that complained of, be it in anger or in play (Januzzelli v. Wilkins, Emmons v. Stevane). “Knowledge by an owner of his dog’s overly demonstrative affection or playfulness, with a propensity for enthusiastically jumping on visitors, is enough to establish scienter in an action for damages resulting from such an act (Januzzelli v. Wilkins, Restatement, Torts 2d, § 509 at 16-19 ).
Therefore, the Defendant’s acknowledgement that a large dog running loose may collide with people and cause injury was highly advantageous. We achieved a bonus when the Defendant admitted failure to manage and prevent injury may aver carelessness.
Furthermore, in Pennsylvania, the case of Clark v. Clark was very similar to our Michigan case. The jury produced a verdict in favor of the Plaintiff. The court then reversed the verdict, granting the Defendant’s motion for summary judgement, since the dog was injurious, but not vicious. However, the Pennsylvania Supreme Court supported the Plaintiff, citing a case Groner v. Hedrick. The Groner court wrote, “A large, strong, and overly-friendly dog may be as dangerous as a vicious one”… and knowledge by its owners “when considered together with its size” and “apparent knowledge” of its behavior, poses duty upon the owner. Citing Owen v. Hampson, the case discussed above from Alabama, the Groner court stated, the law imposes a “duty of restraint” upon the owner “when he knows of the animal’s playful but dangerous propensities.”
Consequently, regardless of a whether a dog exhibited aggressive intent or an aggressive act, if the action of the dog was foreseeable, and preventable by superior owner management, then the owner acted carelessly and is liable for injuries suffered by the victim.
Consistent with the preceding case precedent, in his report, the CPT expert opined that in the Defendant’s deposition testimony she admitted to foreseeability, accepted a duty of care, and admitted to acting carelessly and negligently. He also elaborated on aspects of canine behavior, whereby he explained rationale for the dog’s actions, the importance of owner supervision, and other information that reinforced an argument of Defendant negligence. To further validate the Plaintiff’s position, the CPT expert discussed pertinent peer-reviewed research, including a study he co-authored.
The scientific papers cited in the expert’s report concluded that:
Therefore, the dog in question was more apt to respond to the olfactory, physical, social, and verbal communication of the owner than to the Plaintiff (a relative stranger).
Consequently, the absence of direct supervision by the Defendant carelessly raised the probability that a foreseeable injurious event would occur. Moreover, the Plaintiff likely could have prevented the injurious event by closely supervising her sister’s dog and by managing the dog with verbal commands. Thus, the Defendant’s lack of fulfilling her duty to implement supervision, and concomitant commands or protocols that safely managed her sister’s dog’s energy, arousal, and motion, directly and negligently caused physical, emotional, and financial injury to the Plaintiff. In conclusion, even though the Plaintiff’s injury did not result from a bite, and even though the dog’s action was not an act typically deemed aggressive, the injury nevertheless occurred due to the Defendant’s negligence. Moreover, the dog’s action resulted in injuries more severe than persons receive from the majority of dog bites, whereby the Plaintiff legally and morally deserves indemnification.
The CPT expert report was thorough and compelling. After reading the report, the previously resistant insurance company subsequently agreed to a reasonable settlement.
Background: In Massachusetts, a well-meaning homeowner wished to enhance he and his wife’s relationship with the neighbor family. To achieve his amiable objective, he invited the neighbor’s 2-year-old child to become familiar with his German Shepherd. The 2 families had detached homes with a common fenced backyard. Therefore, it was easy for the male dog […]
In Massachusetts, a well-meaning homeowner wished to enhance he and his wife’s relationship with the neighbor family. To achieve his amiable objective, he invited the neighbor’s 2-year-old child to become familiar with his German Shepherd. The 2 families had detached homes with a common fenced backyard. Therefore, it was easy for the male dog owner to coax the child to walk toward the dog.
The child, clad only in a t-shirt and diaper, willingly entered the neighbor’s side of the yard. Then, the dog owner instructed the child to interact with the German Shepherd via the medium of toys and treats.
Unfortunately, early in their engagement, the dog suddenly clamped his teeth about the child’s right arm. Almost instantly, the child screamed in fear and agony. The force of the bite twisted the child’s arm, whereby torsion hurled the child to the ground. Force and torsion from the bite, combined with impact upon the ground, caused the child to suffer a supracondylar humerus fracture- Type 4.
The mother of the child (Plaintiff), who stated she witnessed the event, believed the German Shepherd’s actions were “vicious.” She supported her characterization by describing the dog’s failure to immediately release its bite after the child fell to the ground. Moreover, the dog ignored multiple owner commands to release its bite.
In contrast, the dog owners (Defendants) countered that the mother did not witness the actual event. In their depositions, they responded the mother observed only the aftermath. Furthermore, in their opinion, the dog remained calm throughout its interaction with the child. The dog merely attempted to grab a toy held by the child. In the process, the dog accidentally contacted the child with its teeth. And they stated the dog released its bite rapidly and independently, without a command.
Nevertheless, the parties did not dispute that the child was injured. More importantly, they agreed the proximate cause of the injury was oral contact from the German Shepherd.
Massachusetts state law Part 1, Title XX, Chapter 140, Section 155 states that if “any dog” does “damage to either the body or property of any person” the owner shall be liable, unless the person damaged was trespassing, committing a tort, or teasing, tormenting, or abusing the dog. Thus, the law imposes strict liability. Moreover, should an exemption possibly apply, the burden of proof lies with the Defendant (dog owner).
Yet, the Defendant’s homeowner’s insurance carrier was slow to negotiate in good faith. Furthermore, the carrier insisted that the mother’s careless parent-child supervision was the primary cause of the child’s injuries. Therefore, a CPT expert proved valuable.
The CPT report elaborated on:
In summary, when inviting the child, the dog owners enticed a situation for which they were uneducated and unprepared. They carelessly failed to consider the size, athleticism, and power difference between their 6.5-year-old German Shepherd and the 2-year-old toddler. Moreover, they failed to recognize the aggressive potential of their dog.
Their actions carelessly created a situation that initiated canine anxiety and injurious dog-child possessive aggressive behavior. In toto, through their purposeful actions, the Defendants negligently provoked the child’s injuries. Once inviting the child to their property and accepting supervision, they failed to prudently acknowledge risk and neglected to exercise an appropriate duty of care to the Plaintiff.
The CPT expert report armed Plaintiff counsel with a greater number of arguments and superior strength when supporting claims. Subsequently, counsel successfully prodded the insurance carrier to significantly increase its settlement offer. Ultimately, the case settled favorably for the Plaintiff client.
Massachusetts state law Part 1, Title XX, Chapter 140, Section 155
A self-employed cleaning woman in a rural North Carolina county visited a new customer’s home for the purpose of providing an estimate. During this meeting, the business owner/cleaning woman inspected the property, which included a large farmhouse and a separate pool house; provided a quotation for services; and met the homeowner’s 2 Pit Bull dogs, […]
A self-employed cleaning woman in a rural North Carolina county visited a new customer’s home for the purpose of providing an estimate. During this meeting, the business owner/cleaning woman inspected the property, which included a large farmhouse and a separate pool house; provided a quotation for services; and met the homeowner’s 2 Pit Bull dogs, who while supervised by the property owner appeared friendly.
Two days later, the cleaning woman and her 11-year-old daughter arrived at 8 am to perform the verbally contracted service. At the time, the property owner had already departed for work. Therefore, no resident was present on the property.
Once the cleaning woman parked in the driveway, her daughter exited the passenger side of the vehicle, and then opened the rear door of their 4-door pickup to remove equipment they brought to the job. Upon opening the rear door, the daughter was approached by a large, female Pit Bull dog, who apparently sought friendly interaction.
Suddenly, an even larger, male Pit Bull dog appeared and immediately began attacking the daughter. The cleaning woman promptly exited the driver side door to help her daughter fend off the onslaught. She was able to grab the animal’s collar, extricating her daughter from the Pit Bull’s dental salvo. The daughter then hurriedly re-entered the F-150 truck, closed the door, and called 9-1-1. Unfortunately, while awaiting the arrival of police, the daughter witnessed a horrific experience.
The male Pit Bull diverted its attack to the cleaning woman, whereupon the female Pit Bull joined the assault. Each time the cleaning woman attempted to remove or evade the dogs, one or both continuously battered her to the ground. Although the male dog inflicted the most severe bites, both dogs orally penetrated the cleaning woman’s flesh during the lengthy oral bombardment.
The violence was persistent, intense, and damaging, until the cleaning woman finally could again grab the male dog by its collar, lift the dog in the air while twisting its collar, and create enough distance, where she had sufficient time to flee inside her truck and hurriedly close the driver-side door. Lamentably, by this time, she suffered frightful lacerations to her legs, back, abdomen, and arms.
An upper arm wound was the most severe, as muscle tissue was exposed and left hanging. Concomitantly, once EMTs arrived, they rushed both the cleaning woman and her daughter to proximal hospital emergency rooms.
The cleaning woman incurred medical costs, pain and suffering, psychological damages, and emotional distress. The medical costs included acute emergency room care, subsequent outpatient care, and future expenses for ongoing cosmetic surgery. Pain and suffering arose from contusions, lacerations, and inflammation related to the multiple deep bites. Psychological damages were highlighted by her developing a chronic fear of dogs that resulted in her becoming too afraid to continue her occupation. Consequently, there were also economic damages. Emotional distress occurred when she witnessing a vicious animal suddenly attack her daughter, within a domestic working environment that should have been kept safe.
Nevertheless, there were significant obstacles to what on the surface may seem like a cut and dry slam dunk case. First, North Carolina civil dog bite statute (67-4.4) imposes strict liability, but only if the dog had previously been declared “dangerous,” as defined by statute 67-4.1. Neither Pit Bull was classified as dangerous or potentially dangerous. Second, the Defendant claimed he lacked notice, since he had never observed either dog act aggressively toward a human. Moreover, there was no evidence contradicting the Defendant’s claim- no animal control citations, comments on veterinary records, or useful observations from neighbors or other third parties. Third, the Defendant claimed the cleaning woman assumed risk, both by saying during the estimate that she didn’t mind the dogs being loose when she returned to clean the home and by exiting the truck upon observing the dogs approaching the vehicle.
Compounding the impediment posed by the last claim, North Carolina is a contributory negligence state. Therefore, if during trial the Defense convinces a judge or jury that the Plaintiff in any manner or degree negligently contributed to her predicament, then the Plaintiff receives nothing. Contributory negligence contrasts with comparative negligence doctrine, where the Plaintiff’s recovery would be reduced pro rata if she was deemed partially negligent.
Due to the harshness of contributory negligence doctrine upon persons suffering damages, comparative negligence is the rule in 46 US states- all but Alabama, Maryland, North Carolina, and Virginia. Nevertheless, the cleaning woman was injured in North Carolina. Therefore, the potential of a jury considering the Plaintiff/cleaning woman partially responsible for the incident posed a major hurdle.
The insurance company representing the Defendant was well aware of the figurative contributory wrecking ball, ready to demolish the Plaintiff’s case. Resultantly, during mediation the insurer proposed an initial settlement offer that barely exceeded initial medical costs, and then remained intractable.
Fortunately, a synergistic collaboration between Plaintiff counsel and the CPT expert produced favorable results. First, CPT assisted Plaintiff’s counsel in developing deposition questions and strategies. At first glance, the Defendant’s deposition responses appeared difficult to surmount. However, upon closer inspection, both the Plaintiff’s attorney and the CPT expert doubted the verity of several key Defendant answers. In short, we thought he was lying.
Whereas the Defendant stated the cleaning woman said she didn’t care whether the dogs were loose on the cleaning day, the cleaning woman (Plaintiff) was adamant that she requested he confine the dogs to an outdoor kennel, a crate, or a room. Yet, that’s “he said-she said.” And the Defendant was well known and respected within the rural community- a community where his extended family has deep roots.
Thus, we had gruesome photographs saliently depicting the dogs’ aggressiveness. We also had the word of the cleaning woman stating she requested the Defendant confine the dogs. At this point of discovery, the preceding was our most potent arsenal to counterbalance the Defendant’s claims there was no evidence the dogs were ever previously aggressive and the Defendant’s claim the cleaning woman never requested he confine the dogs- and perhaps the Defendant’s status as an honest, locally revered person.
The photographs of the cleaning woman’s wounds were certainly compelling. Yet, we wanted more before going to trial.
Serendipitously, the Defendant’s brazenness gave us more. In his deposition responses, the Defendant claimed that numerous family members of all ages participated in frequent pool parties where the dogs congregated with guests. Similarly, he stated peer group friends of his teenage daughter attended parties where the dogs milled about. Furthermore, he boasted that while the dogs were loose, these people often came on the property to use the pool without homeowner accompaniment. Therefore, he not only had no notice of the dog’s aggression, he had ample evidence of their sociability, both with and without owner supervision.
However, when asked to provide names he balked. It was almost like he was adhering to the principles of omerta.
Subsequently, we addressed our incredulity by designing a second set of interrogatories, in which we demanded the Defendant produce names, contact information, photographs, videos, and social media posts verifying the parties occurred. We received better than we intended. The Defendant basically said, “You got me.” In his interrogatory responses he admitted there weren’t any parties.
Our position improved tremendously. Although there still wasn’t evidence of prior aggression, there wasn’t evidence of the dogs acting friendly amidst unescorted guests. Moreover, the Defendant now was impeachable, whereby we thought we had a much higher probability of winning the “he said-she said” debate. Furthermore, in his depositions, the Defendant admitted he never professionally trained his dogs; never walked them off the property; and kept them exclusively outdoors, other than for very rare times during the winter or when one dog suffered a broken leg.
Subsequently, the CPT expert produced a detailed report focusing on:
Moreover, to minimize Defense rebuttal, the report was heavily researched, with over 80 footnotes to published peer reviewed studies and other supporting documents.
Plaintiff counsel elected to present the Defense with the report during a mediation session. Subsequently, the Defense tripled their offer, which was hesitantly accepted by the Plaintiff, as the cleaning woman wanted to figuratively “clean house” in court. Yet, she also realized the risk of a trial, especially in a contributory negligence state- and in a county where the Defendant and his family are well known.
This case provides an outstanding example of how an effective attorney-expert team can collaboratively strengthen a case. The attorney has stated that without his CPT expert he would not have acquired all the ammunition required to prod the intransigent insurance company into an equitable settlement.
North Carolina civil dog bite statute (67-4.4)
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 […]
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.
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 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.
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.
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.
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.
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”
The Prelude to the Event: The following event posed some very interesting legal questions for the CPT expert. In New York City, a father took his 2.5-year-old daughter to a small neighborhood park north of Little Italy. Unfortunately, the pleasant father-daughter urban interlude quickly morphed into a calamity. Within moments of entering the park, […]
The following event posed some very interesting legal questions for the CPT expert.
In New York City, a father took his 2.5-year-old daughter to a small neighborhood park north of Little Italy. Unfortunately, the pleasant father-daughter urban interlude quickly morphed into a calamity.
Within moments of entering the park, the father became enthralled with a restless Pit Bull dog. A heavily tattooed, mid-20s city dweller struggled to restrain the conspicuously agitated, leashed Pit Bull. Regardless, the owner situated the dog at the corner of the main path and another highly trafficked footway.
The four-legged creature saliently demonstrated a lack of emotional or physical control. Yet, the dog’s owner irrationally held the beast adjacent to one of the park’s most populated areas.
As the father and daughter approached, the unruly Pit Bull increasingly shared the father’s intrigue. The unsettled Terrier locked his eyes and grew progressively aroused by the stimulus of the approaching young girl.
This highly entertained the father, who felt compelled to video the interaction. Video evidence demonstrably shows the dog straining at the leash, barking, and lunging toward the daughter.
After collecting video of the saliently aggressive dog, the father took his daughter deeper into the interior of the park. Several minutes later, they reversed direction to exit the park. As the father and daughter returned toward the park entrance, the Pit Bull again became increasingly aroused.
Yet, the father never attempted to stop his ingenuous daughter from approaching the dog. Consequently, the girl walked within striking distance of the maniacal Pit Bull. Immediately, the dog inflicted a severe bite to the face of the young girl.
Park patrons promptly called 911. EMTs subsequently rushed the profusely bleeding girl via ambulance to a hospital emergency room. The primary bite beneath the girl’s eye removed a large chunk of flesh and caused notable blood loss. The victimized pre-schooler received requisite emergency treatment. In addition, she will likely need future cosmetic surgeries and require mental health treatment.
The girl’s mother was highly perturbed by the entirety of the event. She was distraught upon witnessing the savage injuries suffered by her formerly beautiful daughter. She was upset at the cavalier supervisory carelessness of the dog owner and the father/her husband.
The mother was at an impasse how to proceed legally. She remained uncertain whether to sue the dog owner. In addition, she contemplated re-evaluating her marital relationship with the father.
To facilitate astute legal decisions, the mother contacted a CPT expert. She requested the CPT expert write a detailed report. The mother asked the CPT expert to discuss the dog’s behavior and the concomitant negligence of the dog owner, She also wished the CPT expert’s opinion regarding negligence by the father.
While positioned alongside a highly trafficked path, the dog owner clearly permitted his blatantly aggressive Pit Bull to access the vulnerable child, In the opinion of the CPT expert, the mother had a high probability of successfully proving the dog owner’s negligence. Unfortunately, the dog owner was low income and did not carry a renter’s insurance policy. Therefore, suing the dog owner would be an exercise in futility.
The mother also wished the CPT expert to opine regarding suing the father, who failed to responsibly and prudently supervise his young daughter. Generally, in judicial interpretations of common tort law, an unemancipated minor child cannot legally sue a parent for ordinary negligence, unless the injury resulted during operation of the parent’s business or vocation. The principle is called the “doctrine of intrafamily tort immunity” or the “doctrine of parental immunity.”
For instance, the applicable Georgia civil code is 51-1-9, “Torts-General Provisions- Recovery for Torts to Self, Wife, Child, Ward, or Servant.” The case of Blake v. Blake typifies application of the code. Two minor children, through their mother, sued their natural father for injuries incurred during an automobile accident. The trial court and appeals court granted summary judgement to the father, based upon parental and family immunity. The appeals court cited 5 public policy reasons for parental immunity:
In another judicial decision related to the code, Wright v. Wright, the Georgia court ruled “while an unemancipated minor child has no cause of action against a parent for simple negligence, such child may maintain an action for personal injury against a parent for a willful or malicious act, provided it is such an act of cruelty as to authorize forfeiture of parental authority.” Yet, despite the general and Georgia interpretation of tort law, there have been judicial decisions to the contrary in other jurisdictions, as some judges believed it was inequitable to deny a child the right to indemnification, especially if the parent carried appropriate insurance.
In most states the doctrine is applied via case precedent, rather than via statute. The 1891 Mississippi case of Hewelette v. George initiated the doctrine. In Hewelette, the judicial opinion stated, “the peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.”
Most states adopted the doctrine of Hewelette. However, some states include exceptions, either in statute or in case rulings. The most common exceptions occur when mandatory insurance coverage is available to indemnify the injured child, when the injury occurs in the course of the parent’s business, or when the parent is guilty of gross negligence.
Other states decline to accept the doctrine. In North Dakota, courts rely on a statute stating every person is responsible for the damages he causes. Nevada courts have elected to dispel the doctrine. Utah courts have never applied the doctrine and the legislature has never written a parental immunity statute. Similarly, Vermont courts rebuff the doctrine, as do courts in Wisconsin and Hawaii.
Yet, the incident occurred in New York. New York is one of the “exception states.” According to an article written by Matthew Robinson-Loffler in a 2012 edition of the Albany Government Law Review (“Passive Parenting and New York’s Refusal to Recognize Parent-Child Actions for Negligent Supervision”), New York courts first recognized the parental immunity doctrine upon the 1928 Appeals Court ruling in Sorrentino v. Sorrentino. Later, in 1935, the state legislature passed General Obligation Law 3-111. The Law states, “In an action brought by an infant to recover damages for personal injury, the contributory negligence of the infant’s parent or other custodian shall not be imputed to the infant.” Thus, New York parents received broad protection against civil suits from an unemancipated, minor child plaintiff.
Then, in 1969, the case of Gelbman v. Gelbman started to add exceptions. Plaintiff Gelbman was a mother injured while riding in a car operated by her 16-year son. The judge wrote, “the rule will be changed… by a decision of this court.” Judge Burke expounded that courts in other states abandoned the doctrine, it was a court-created rule, and courts were free to revoke, with or without legislative action.
Burke then listed existing exceptions, such as if the child is of adult age, the child is emancipated, the car is owned by the parent’s employer, the injury occurred while employed by the parent, the injury was inflicted intentionally, or the suit is for property damage or breach of contract, rather than personal injury. They are reasonable exceptions, because in each case family relations were terminated (legal age, emancipation), abandoned (intentional injurious act), or irrelevant (employment, property damage, contract breach). Consequently, the exceptions fall outside the spirit and intent of parental immunity laws- to maintain family harmony.
Judge Burke opined that key principles underlying the doctrine likewise fail to apply to vital contexts of the Gelbman case. Parental immunity, family harmony, and protection of family financial resources were irrelevant, since the claim would be paid by the driver’s auto insurance carrier. In the opinion of Burke, the lawsuit was not really between Gelbman and her son, but between Gelbman and the insurance company. Thereafter, in New York, parental immunity did not apply in situations where compulsory insurance provided the injured party’s award.
Exceptions became more detailed in 1974, after the collective appeal of Holodook v. Spencer, Graney v. Graney, and Ryan v. Fahey. The latter 2 cases displayed similarities to the subject CPT expert case, where the case arose due to an alleged lack of supervision.
4-year Graney fell off playground equipment while carelessly supervised by his father. Infant Graney’s guardian ad litem then sued Graney’s father.
3-year Ryan played in the backyard of 8-year-old neighbor Fahey. Fahey operated a lawnmower that ran over Ryan’s hand. At the time, the mother of each child congregated inside Fahey’s house. The complex case spawned multiple lawsuits. Young infant Ryan, via his father, sued his mother for negligent supervision. Infant Ryan also sued young Fahey for negligent operation of the lawnmower. In addition, infant Ryan sued Fahey’s mother for negligent supervision of young Fahey. And Mr. Ryan sued his wife, young Fahey, and Mrs. Fahey for recovery of medical expenses.
In contrast, the Holodook case originated when Spencer accidentally hit young Holodook with her automobile. Holodook’s parents sued Defendant Spencer for injuries to the child. Spencer countersued Holodook’s parent’s, claiming lack of supervision. The accident occurred when 4-year old Holodook suddenly darted between parked cars and into the street.
The aggregated judicial opinion for Holodook, Graney, and Ryan concluded “Gelbman made no express exception for the failure to perform a ‘parental duty’… for the exercise of parental authority (disciplinary acts), and the performance of duties to provide food, clothing, housing, and medical care.” “A child could probably avoid most physical harm were he under his parents’ constant surveillance and instruction.” If state courts allowed “negligent supervision claims,” it would be a “rare parent who could not conceivably be called to account.”
Moreover, constant supervision inhibits the parents’ objective of teaching the child “to undertake responsibility and gain independence.” Furthermore, it will be difficult to apply an equitable standard. Parents arrive with diverse “economic, educational, cultural, ethnic, and religious backgrounds.” This diversity creates “many combinations and permutations of parent-child relationships.” “Supervision is uniquely a matter for the exercise of judgement.” “Parents have always had the right to determine” the level of child “independence, supervision, and control.” Therefore, “negligent supervision has not been a tort actionable by the child.”
The court further elaborated that parenting emanates from “such forces as natural instinct, love, and morality.” Parenting operations should not originate from “the essentially negative compulsions of the laws directives and sanctions.”
However, “where the duty is ordinarily owed, apart from the family relation, the law will not withhold its sanctions merely because the parties are parent and child.” In Gelbman, “the duty to drive carefully was owed to the world at large and derived from the parties’ relation as driver and passenger.” Their familial relationship was irrelevant to the duty and the breach.
In contrast, Holodook, Graney, and Ryan involve “a parent’s duty to protect his child from injury.” This duty “not only arises from the family relation, but goes to its very heart.” Accordingly, the court ruled that in each case the infant Plaintiffs had no cause of action against the parents for negligent supervision.
Applying the preceding case law to the client’s case, the CPT expert informed the client that most probably her daughter does not have an actionable claim against her father for negligent supervision. The daughter can sue the dog owner. Yet, without insurance, he likely has few financial resources to pay a claim. Unfortunately, despite the severity of the daughter’s injuries, she has limited civil remedies.
The mother then asked about the possibility of filing a claim with her renter’s insurance. The CPT expert replied that most likely the incident at the park is excluded from coverage. Moreover, as discussed by Robinson-Loffler, the carrier will likely refuse coverage based on parental immunity.
Unlike automobile insurance, state law does not mandate homeowners/renters insurance. Thus, courts have looked less favorably at allowing an action, since defendant parents may not have coverage. The inequality presents an obstacle to the courts removing immunity. Per the Holodook decision, “Children whose parents are covered by liability insurance” may “find their claims prosecuted eagerly.” In contrast, uninsured parents may hesitate “asserting their child’s rights.”
Initially, the victim’s mother expressed reluctance about contacting an attorney. The mother had concern about elevating existing marital discord, especially since she angrily blamed the father for her daughter’s injuries.
As a prelude to potential future legal action, she first wished to observe a CPT expert behavioral analysis of the event. She also wished the CPT expert report to include an assessment of human negligence and culpability. Yet, at the CPT expert’s behest, she hired an attorney.
Nevertheless, she was more impressed with the CPT expert and more comfortable working with the CPT expert. Therefore, in addition to the behavioral analysis, she asked the CPT expert to conduct legal research determining whether her daughter could sue the father. The CPT expert explained he typically works in conjunction with client attorneys. However, he sometimes contracts directly with clients. Resultantly, he will conduct the research, but recommends she also solicit the opinion of her attorney.
When writing the expert report, the CPT expert employed the police report; photographs of the victim child before the event, immediately pre-surgery, and post-surgery; and the described iPhone video shot by the father. The video demonstrably showed the dog exhibiting prominent vocal and physical aggressive behaviors upon the approach of the child.
The report:
Ultimately, the mother elected to use the CPT Expert report to further a maternal custody ruling should she elect to divorce the father. Sadly, their marriage was not optimal before the incident and was perhaps irreparably fractured after the dog bite.
Considerations When Hiring an Expert Witness in Dog Behavior
Background: In Oregon, a couple and their dog visited a popular restaurant that allowed dogs in an outdoor seating area. However, the dog apparently became nervous with the noise and the crowd. When the waitress took the couple’s order, she leaned over the table so they could converse amidst the loud environment. In the […]
In Oregon, a couple and their dog visited a popular restaurant that allowed dogs in an outdoor seating area. However, the dog apparently became nervous with the noise and the crowd. When the waitress took the couple’s order, she leaned over the table so they could converse amidst the loud environment. In the process, the waitress accidentally brushed the dog with her foot. The allegedly distressed dog reacted violently by biting the waitress on her face.
Resultantly, lateral to her mouth, the waitress suffered a severe laceration of several inches in length. In addition to her immediate medical bills, she would likely need future cosmetic surgery, may incur permanent disfigurement, and experienced pain and suffering.
Subsequently, the waitress sued the dog owner. The dog owners’ homeowner’s insurance company wished to examine whether there were viable rebuttals to the policy holder’s culpability. Therefore, an adjustor and attorney employed by the insurer contacted a CPT expert for consultation regarding possible defenses.
The CPT expert opined that an employee injured on the job should be eligible to collect worker’s compensation from the employer’s insurance plan. However, in most states the employer is responsible for paying only up to the limits of the plan. If medical expenses, lost wages, and related expenses exceed plan limits, the employee may not sue the employer for the excess, unless the employer exhibited gross negligence. Furthermore, the plan may not cover the employee if the employee violated a law, was under the influence of drugs, or did not adhere to company policy (provided there was a relevant policy).
There was no evidence of the waitress violating a law. Likewise, there was no evidence the waitress was under the influence of illegal narcotics. Neither did she consume legal prescription medication that affected her physical or cognitive performance.
Yet, perhaps the waitress did not adhere to company policy regarding interaction with customer dogs. Thus, the CPT expert advised the insurer to subpoena a copy of the retaurant’s policy manual. We specifically wished to view whether there was company policy regarding the positioning of dogs underneath a table. Relatedly, was there company policy for approaching tables where dogs were present?
In addition, the homeowner’s carrier needed to review the employer’s workmen’s compensation policy. The defense team could then ascertain coverage limits in comparison to the Plaintiff’s claimed damages.
Furthermore, the homeowner’s insurer needed to determine potential negligence by the restaurant. State law prevented the waitress from suing her employer. However, there was no law preventing the carrier from instituting a crossclaim or from arguing the doctrine of comparative negligence. A degree of fault assessed to the restaurant could reduce damages attributed to the dog owner.
Oregon is a modified comparative negligence state. To receive an award for damages, a Plaintiff cannot be more than 50% at fault. Therefore, if the waitress is 51% at fault, then she receives nothing. And if she is less than 50% at fault, her award can be reduced based upon her percentage of fault.
In addition, the court can consider the fault of third parties, even if they are not parties to the lawsuit. Consequently, without a crossclaim, an argument of employer fault can mitigate damages assessed to the dog owner.
To further an argument of potential plaintiff negligence, did the waitress violate company policy in how she approached or managed the table? Regardless of company policy, was the waitress careless when physically contacting the dog? Had she previously stepped on a person or a dog? Did she know of a similar event affecting another staff member or at another restaurant?
If yes, there may be an onus on the waitress to be more cautious when approaching any table- and especially one with a dog. Moreover, if the waitress (Plaintiff) had such knowledge, and then acted carelessly in her approach toward the table, one could argue that she was the principally negligent party, not the dog owner.
We also wished to evaluate potential arguments for employer negligence. Did similar dog bite events occur previously on company property? Was the employer aware of the potential for wait staff injury arising from staff-dog interaction? Should the employer have been aware based upon prior industry events published in newspapers or trade journals? Did the employer fail to publish a policy or handbook containing procedures that would have minimized risk of staff injury? Did the employer contract for specialized training that would have minimized risk of staff injury?
Depending upon the answers, one could reasonably argue the employer did not exercise a reasonable duty of care to its employees. Consequently, the defense team could benefit by investigating employer policies and actions and by deposing employer executives.
Lastly, the CPT expert recommended the carrier query the dog owner regarding the dog’s behavioral history. Did the dog inflict a prior bite? Did the dog have a history of aggressive vocalizations or postures without a bite? Had the dog previously visited a busy outdoor restaurant patio? During such restaurant visits, did the dog appear relaxed? Or did the dog appear stressed?
If the dog had no history of aggression and had a history of successful restaurant visits, then the dog owners had no scienter (notice) about the dog’s aggressive potential. Moreover, the defense could better argue that the waitresses’s careless physical movement caused acute pain to the dog, whereby the dog’s high arousal response was a pain-induced response that would not have occurred absent of the waitress’s carelessness. Therefore, the waitress was the party principally at fault for her injuries.
The insurance company incorporated CPT’s consultation within its strategy during settlement negotiations.
Considerations When Hiring an Expert Witness in Dog Behavior
A client was cited for violations of dog at large and vicious animal statutes. Furthermore, the client’s property owners’ association board of directors commenced efforts to utilize subdivision covenants to remove the dog from within the gated community. The dog was accused of starting a dogfight and injuring a neighbor animal on one occasion and […]
A client was cited for violations of dog at large and vicious animal statutes. Furthermore, the client’s property owners’ association board of directors commenced efforts to utilize subdivision covenants to remove the dog from within the gated community. The dog was accused of starting a dogfight and injuring a neighbor animal on one occasion and injuring another neighbor animal on a second occasion. During the first incident, the client dog was on-leash on its property. An off-leash neighbor dog progressed from its property to the client’s driveway while barking repeatedly. The client dog pulled on its leash and escaped the owner’s daughter. A brief fight ensued, whereby the neighbor animal was injured. During the second incident, a neighborhood dog received over $2,000 in veterinary bills, apparently from an animal attack. However, there were no witnesses to the attack, only the aftermath, and no forensic evidence proving that wound marks matched the client dog’s dentition.
Working as a strategic team in conjunction with the client’s attorney, a thorough CPT expert witness evaluation combined with a well researched written report and video evidence were able to prompt a dismissal of all charges and stop inappropriate, harassing actions from the client’s POA.
If you are an Attorney, a Plaintiff, or a Defendant engaged in a criminal or civil action involving dog behavior or dog law, please contact CPT to learn how CPT’s expert witness services may strengthen your case. Mr. Spivak’s CV is available upon request.
A client owning a well trained, friendly pit bull mix was accused of dog at large and vicious animal violations. During the relevant incident, the owner’s child was walking the dog. The dog pulled the leash from the child and ran toward a neighbor. The neighbor stated the dog jumped on him aggressively with intent […]
A client owning a well trained, friendly pit bull mix was accused of dog at large and vicious animal violations. During the relevant incident, the owner’s child was walking the dog. The dog pulled the leash from the child and ran toward a neighbor. The neighbor stated the dog jumped on him aggressively with intent to injure him. The child said the dog jumped on the neighbor to “say hello.” The adult client stated that the neighbor is afraid of dogs, especially her breed. A CPT expert witness evaluated the animal and produced video demonstrating that the dog was friendly and social with people and animals. In a subsequent research report and summary affidavit, CPT also described the event from a behavioral perspective. The client plead guilty to the dog at large violation (for when the child lost control of the leash), but the more serious vicious animal violation was dismissed.
A client was cited for violating dog out of control and vicious animal statutes. During the pertinent incident, the client was walking her Labrador Retriever on the street within her subdivision. A neighbor’s Chihuahua bolted out its front door and ran off its property and onto the street while barking aggressively at the client animal. […]
A client was cited for violating dog out of control and vicious animal statutes. During the pertinent incident, the client was walking her Labrador Retriever on the street within her subdivision. A neighbor’s Chihuahua bolted out its front door and ran off its property and onto the street while barking aggressively at the client animal. The client animal bit the Chihuahua, causing over $1500 in veterinary bills. This was the client dog’s second similar incident within the past year. Working in conjunction with the client’s attorney, a CPT expert witness behavioral analysis and summary affidavit regarding the dog and the event was able to establish provocation, which by statute exculpated the client dog. Charges were dismissed.
Dekalb County and a client’s condominium association accused the client of owning a “pit bull” in violation of zoning ordinances and restrictive covenants. Expert witness evaluation of the dog and a summary affidavit demonstrated that he was not a pit bull per the definitions authored within the pertinent County statute nor the definitions of the […]
Dekalb County and a client’s condominium association accused the client of owning a “pit bull” in violation of zoning ordinances and restrictive covenants. Expert witness evaluation of the dog and a summary affidavit demonstrated that he was not a pit bull per the definitions authored within the pertinent County statute nor the definitions of the condominium bylaws. The client was allowed to keep her dog.
The Client was accused by her HOA of owning a pit bull and owning an aggressive dog. The HOA covenants restricts residents from owning certain breeds, including pit bulls. In addition, the covenants provide the board of directors sole power in determining whether a dog is a nuisance or aggressive, whereby the Board has the […]
The Client was accused by her HOA of owning a pit bull and owning an aggressive dog. The HOA covenants restricts residents from owning certain breeds, including pit bulls. In addition, the covenants provide the board of directors sole power in determining whether a dog is a nuisance or aggressive, whereby the Board has the power to require that the resident remove the dog from the development.
The Client could not afford both CPT and an attorney, although CPT advised her to hire an attorney. Nevertheless, the Client hired CPT as an expert witness to construct a defense. First, CPT guided the Client in obtaining a DNA breed analysis. The analysis stated that the Client dog was not a purebred pit bull.
CPT then evaluated the dog in the presence of people and other dogs. CPT also had some experience with the dog, as it had participated in CPT group classes. CPT’s evaluation concluded that the dog was at times excitable, unruly, and poorly managed by the owner, especially when exposed to certain stimuli, but that with both people and dogs and both on-leash and off-leash the dog was merely overly energetic and not aggressive.
CPT then authored a letter to the President of the Board. The letter detailed the evaluation, prior experience with the dog, the conclusions, and the rationale behind the conclusions.
The Board found CPT’s letter compelling. Consequently, the Board decided to allow the dog to remain in the development, provided the owner continue a training program and obtain a CGC certificate or an equivalent within a 6-month period.
Given the power the Board had to remove the dog and their initial determination, the Client was very pleased with the outcome obtained from CPT’s expert services.
CPT provided expert opinion regarding the operation of a police canine handler and police K9 during a traffic stop that included detainment of the driver, K9 search of the exterior of the vehicle, a subsequent interior vehicle search, and the seizure of methamphetamine physically located within the vehicle. The case was more complicated than most […]
CPT provided expert opinion regarding the operation of a police canine handler and police K9 during a traffic stop that included detainment of the driver, K9 search of the exterior of the vehicle, a subsequent interior vehicle search, and the seizure of methamphetamine physically located within the vehicle. The case was more complicated than most due to the fact that during the exterior search the vehicle was occupied by a female Belgian Malinois in estrus owned by the driver. Therefore, a question arose regarding the dog’s presence and its resultant affect on the K9’s search behavior. CPT viewed video of the search to examine the behavior of the K9 dog and the handler. Most relevantly, we wished to examine whether the dog may have caused the K9 to commence a behavior that replicated the normal indication behavior, whether the handler communicated leading verbal or physical communication that inappropriately prompted an indication behavior, and/or whether the handler and dog adhered to department protocol for probable cause and search operations throughout all phases of the traffic stop.
CPT provided an expert witness affidavit on behalf of an Atlanta Falcon player accused of felony cruelty to animals. The player’s fiancee owned a dog that had exhibited aggressive behavior to family members and strangers and in the process inflicted several bites. Out of concern for the safety of his young child, himself, and the […]
CPT provided an expert witness affidavit on behalf of an Atlanta Falcon player accused of felony cruelty to animals. The player’s fiancee owned a dog that had exhibited aggressive behavior to family members and strangers and in the process inflicted several bites. Out of concern for the safety of his young child, himself, and the community, the client considered euthanizing the animal. Veterinary professionals concurred that euthanasia was a viable option given the dog’s history and the low probability of training success. Nevertheless, the player, in an attempt to keep the pet alive, contracted with a local trainer recommended by his veterinarian. The trainer board trained the animal and provided follow-up consulting. However, the dog remained frequently aggressive, which frightened the client and placed the family and community at risk. Still, the player continued attempting to modify the animal’s behavior by implementing the techniques espoused by the trainer. Unfortunately, on one occasion, when the player implemented the suggested techniques, the dog was subsequently injured and later died. Gwinnett County then charged the player with felony cruelty to animals.
The handler again announced that he would “send” his dog and that the dog “will bite.” The officer released the dog. The dog bit the fleeing Plaintiff in the posterior thigh, causing severe injury, including deep lacerations and tearing of the hamstring muscle.
The Plaintiff’s attorney’After researching all pertinent facts, CPT submitted an expert witness affidavit denoting that the primary technique advocated by the trainer was a legitimate technique favored by others within the dog training profession, that the technique was archaic and now rarely applied by educated professional trainers, that the technique was inappropriate for reducing the aggression of the subject dog, that the technique would likely exacerbate the aggression of the subject dog, and that the technique may cause the subject dog to act aggressively with less salient warning than communicated previous to the implementation of the technique. Felony cruelty to animals requires intent and malice. The CPT affidavit described the technique and how even proper implementation of the technique may accidentally result in severe injury or death. The affidavit also emphasized the client’s efforts to salvage the dog’s life by contracting with the trainer and taking the time, finances, and risk to implement continued training strategies, rather than simply having his veterinarian euthanize the animal, such that the evidence demonstrated that the client’s actions sharply contrasted with any allegations or legal requirements of intent, malice or forethought. Moreover, to eliminate potential allegations of criminal negligence, the affidavit communicated that the trainer had superior knowledge of the potential for injury or death inherent to the recommended training technique, that the trainer did not impart such information to the client, that the trainer was recommended by a state licensed veterinarian (the same state that was ironically now accusing the client of a crime), that the client precisely followed the trainer’s instruction, and that given the client’s lack of a dog training education and his rationale in trusting the trainer and the techniques advocated by the trainer, considering the circumstances and information at hand, the client’s actions were prudent and reasonable and not criminal or negligent in nature.s requested that the CPT expert witness analyze case files, depositions, Gwinnett County regulations regarding handling and usage of police dogs, and the training records of the particular police dog and handler to determine whether the handler violated standard protocols or procedures or whether training records indicated that the dog was either not trained to specification or exhibited abnormally aggressive behavior. A research report and verbal summation to the Plaintiff’s attorneys concluded that the officer followed standard Gwinnett County protocols and that the dog acted in accordance with guidelines. Therefore, the case was weak regarding improper handling or training of the dog. However, further analysis concluded that the Gwinnett County police handler protocols were more aggressive than those utilized in surrounding counties. Thus, moving forward, the strategy of the case should not focus on the officer or dog acting improperly per the standards established by the Gwinnett County police department, as was originally the goal of the Plaintiff’s attorney. Instead, the strategy of the case should focus on the legal possibility that the standards of the police department allowed the use of unwarranted “excessive force” that posed unnecessary and unreasonable risk of injury to the Plaintiff and violated the Plaintiff’s constitutional rights, which was an issue better left to an expert in criminal justice or constitutional law than an expert in animal behavior and training.
Consequently, the Gwinnett County District Attorney’s office dismissed all charges prior to the date of trial.
A CPT expert witness testified at a criminal trial where the defendant client was accused in Carrol County of felony cruelty to animals. The CPT expert provided verbal and visual testimony regarding the victim dog’s physical and verbal communication and overall behavior within the context of the pertinent events. The CPT testimony helped the jury […]
A CPT expert witness testified at a criminal trial where the defendant client was accused in Carrol County of felony cruelty to animals. The CPT expert provided verbal and visual testimony regarding the victim dog’s physical and verbal communication and overall behavior within the context of the pertinent events.
The CPT testimony helped the jury determine that the animal was aggressive and that the client’s actions were legally valid given the dog’s behavior, the circumstances, and the wording and intent of the pertinent statute, whereby in less than an hour the jury returned a not guilty verdict.
CPT worked on a civil slip and fall lawsuit where the plaintiff client was injured while attending a dog training class at a major big box retailer. The client’s resultant orthopedic injuries required several surgeries. A CPT expert witness provided an affidavit and a deposition on behalf of the client. The CPT affidavit and deposition […]
CPT worked on a civil slip and fall lawsuit where the plaintiff client was injured while attending a dog training class at a major big box retailer. The client’s resultant orthopedic injuries required several surgeries. A CPT expert witness provided an affidavit and a deposition on behalf of the client. The CPT affidavit and deposition incorporated the defendants’ answers to interrogatories, scientific research, knowledge of educational psychology, knowledge of animal behavior, knowledge of accepted practices and standards, and expansive experience teaching similar training classes to attempt to prove the defendant’s negligence and resultant liability in relation to the incapacitating injuries suffered by the Plaintiff.
Client was arrested and charged with felony cruelty to children. Her child was removed from her home and placed in the custody of DFACS. The school counselor and police alleged injuries to the child arose from physical abuse. The child and mother attested that injuries arose from rough play with the family dog. Medical reports […]
Client was arrested and charged with felony cruelty to children. Her child was removed from her home and placed in the custody of DFACS. The school counselor and police alleged injuries to the child arose from physical abuse. The child and mother attested that injuries arose from rough play with the family dog. Medical reports were inconclusive as to the origin of the wounds, but categorized them as scratches and excoriated lesions (not bruises or hematomas). Expert evaluation of the client dog, along with expert produced photographs and video, demonstrated an untrained, out of control animal, who due to breed tendencies and lack of attention often jumped, pawed and scratched. The animal had long, untrimmed nails that had scratched through sheetrock in a basement enclosure. Moreover, photographs of the scratches closely corresponded to the direction and dimension of the wound sites documented in the hospital medical report created at the urging of DFACS. Expert analysis and a summary affidavit supported the Defense position and raised more than reasonable doubt that injuries to the child were originated by the family dog- not a human, as alleged by the state.
CPT’s research and a resultant expert witness affidavit were essential in having the charges dismissed, whereupon the child returned home to his parents.
Client was arrested and charged with felony aggravated assault on a law enforcement officer. The officer accused the client of intentionally sending his dog to attack. Though there was no contact and no injuries, the officer alleged the client used commands that prompted the dog to chase her off the property. Expert witness observational and […]
Client was arrested and charged with felony aggravated assault on a law enforcement officer. The officer accused the client of intentionally sending his dog to attack. Though there was no contact and no injuries, the officer alleged the client used commands that prompted the dog to chase her off the property. Expert witness observational and video analysis and a resultant affidavit proved incontrovertibly that the dog was not trained in protection, was not innately aggressive or inordinately territorial, and did not understand the protection commands stated in the officer’s complaint. To strengthen the case we provided a video of a contrasting dog trained in protection. The charges were dismissed.
CPT consulted in a civil case involving police brutality. The Gwinnett County police believed the Plaintiff robbed a convenience store, then stole an automobile to aid in his escape. The police pursued the stolen automobile, whereby they stated they visually observed the Plaintiff abandon the automobile alongside a road and flee by foot into a […]
CPT consulted in a civil case involving police brutality. The Gwinnett County police believed the Plaintiff robbed a convenience store, then stole an automobile to aid in his escape. The police pursued the stolen automobile, whereby they stated they visually observed the Plaintiff abandon the automobile alongside a road and flee by foot into a wooded area. The police strategically positioned backup officers around the perimeter of the wooded area. A Gwinnett County police dog then tracked the suspect Plaintiff from the point of the abandoned car into a specific thicket within the wooded area. Once the Plaintiff’s position was located, the police dog handler verbally informed the hidden Plaintiff that he was under arrest and that he was to move into view. When the Plaintiff refused the police dog handler’s requests, the handler announced three times that he would “send” his dog and that the dog “will bite.” The handler released the dog, whereby the dog bit the Plaintiff on the arm. Subsequently, the handler and an accompanying officer attempted to subdue and handcuff the Plaintiff. In the process, the Plaintiff again fled on foot.
The handler again announced that he would “send” his dog and that the dog “will bite.” The officer released the dog. The dog bit the fleeing Plaintiff in the posterior thigh, causing severe injury, including deep lacerations and tearing of the hamstring muscle.
The Plaintiff’s attorney’s requested that the CPT expert witness analyze case files, depositions, Gwinnett County regulations regarding handling and usage of police dogs, and the training records of the particular police dog and handler to determine whether the handler violated standard protocols or procedures or whether training records indicated that the dog was either not trained to specification or exhibited abnormally aggressive behavior. A research report and verbal summation to the Plaintiff’s attorneys concluded that the officer followed standard Gwinnett County protocols and that the dog acted in accordance with guidelines. Therefore, the case was weak regarding improper handling or training of the dog. However, further analysis concluded that the Gwinnett County police handler protocols were more aggressive than those utilized in surrounding counties. Thus, moving forward, the strategy of the case should not focus on the officer or dog acting improperly per the standards established by the Gwinnett County police department, as was originally the goal of the Plaintiff’s attorney. Instead, the strategy of the case should focus on the legal possibility that the standards of the police department allowed the use of unwarranted “excessive force” that posed unnecessary and unreasonable risk of injury to the Plaintiff and violated the Plaintiff’s constitutional rights, which was an issue better left to an expert in criminal justice or constitutional law than an expert in animal behavior and training.
CPT provided expert witness trial testimony in a case involving a dispute between a purchaser and breeder. The Plaintiff purchaser believed the dog’s aggressive behavior frequently exhibited toward several members of the family amidst food or territory and post commands or reprimands constituted a violation of warranties present in the breeder-authored puppy sales contract. CPT […]
CPT provided expert witness trial testimony in a case involving a dispute between a purchaser and breeder. The Plaintiff purchaser believed the dog’s aggressive behavior frequently exhibited toward several members of the family amidst food or territory and post commands or reprimands constituted a violation of warranties present in the breeder-authored puppy sales contract. CPT expert testimony corroborated the Plaintiff’s observations of the dog, technically categorized the dog’s behavior within the formal classifications of “dominant aggressive, possessive aggressive, and fear aggressive,” and classified the dog’s behavior as “abnormal,” especially for a puppy less than six months of age.
In a South Carolina case, due to specious complaints from several residents in an affluent gated community that a homeowner’s dogs confined by an invisible fence frightened them, the POA alleged the dogs were “dangerous.” Subsequently, the POA mandated the homeowner construct a wrought iron fence around the sizable property- at a cost to the […]
In a South Carolina case, due to specious complaints from several residents in an affluent gated community that a homeowner’s dogs confined by an invisible fence frightened them, the POA alleged the dogs were “dangerous.” Subsequently, the POA mandated the homeowner construct a wrought iron fence around the sizable property- at a cost to the homeowner of over $120,000.
Yet, the dogs had never escaped the property, were friendly to persons who entered the property, and other than on one occasion were friendly to dogs and cats that wandered on the property. Moreover, the lone exception occurred with only one of the homeowner’s four dogs and only when a loose intact male dog from outside the neighborhood entered the property to instigate an aggressive event with an intact male residing on the grounds.
The large dogs often barked at passersby. However, they never left the perimeter of the electronically fenced property, which was a high-end system that had battery backup to continue operation should there be a general power outage. Furthermore, the dogs were service dogs, where their principal ADA task was to nonviolently bark at the approach of persons, which mitigated the anxiety of the homeowner, who suffered from PTSD after experiencing a physical assault that required hospitalization and a burglary.
Given an objective view of the facts, the homeowner rightfully believed the POA’s demands were unreasonable, unwarranted, discriminatory, arbitrary, and onerous. Therefore, to strengthen legal efforts, the homeowner contracted with a CPT expert.
CPT’s Mark Spivak read documents, witness statements, depositions, and social media posts; listened to recorded phone calls; viewed still photos, Ring camera videos, and phone videos; and conducted thorough statutory research to author a report evaluating whether the POA’s claims and concomitant mandate were reasonable, equitable, and within their purview. The report analyzed:
Subsequently, the POA withdrew its requests.
A musician from New Orleans was playing a gig in Atlanta with his jazz band. Tired and weary, at around 2 am he returned to his hotel room. However, before retiring for the night he walked toward his manager’s room to receive payment for the concert. While walking in the outdoor breezeway of the hotel […]
A musician from New Orleans was playing a gig in Atlanta with his jazz band. Tired and weary, at around 2 am he returned to his hotel room. However, before retiring for the night he walked toward his manager’s room to receive payment for the concert. While walking in the outdoor breezeway of the hotel a large Lab/Mastiff dog suddenly charged out an open door and clamped onto the musician’s testicles. He screamed in pain, whereby the dog’s owner got up from his bed and removed the dog from the bloody, distraught musician. The musician with difficulty maneuvered to the hotel lobby. The front desk then contacted an ambulance.
The musician spent several days in the hospital and his injuries took a total of close to a year to completely heal. Moreover, in addition to medical bills, he suffered lost wages for several months, as his testicles remained too swollen for him to travel with the band or play his trumpet in concert, loss of consortium, which caused severe marital discord, and conspicuous pain and suffering.
The owner of the dog was interviewed by the police. During the interview he stated that the musician inadvertently walked into his room, that his door was mostly shut, but cracked open a bit to let in outside air, and that the dog only attacked after the musician entered his room. He also stated that he was sober, has been sober for over a year, and doesn’t use drugs. Meanwhile the police officer commented that the dog owner was blatantly inebriated.
The musician hired a local attorney to sue the dog owner and the hotel. However, suing the dog owner was an exercise in futility. He was indigent. His pockets went no deeper than if he wore yoga pants. Thus, the case wrested upon Plaintiff arguments demonstrating negligence on the part of the hotelier.
In depositions the hotel manager stated that management and employees of the business had no knowledge of the dog’s presence at the hotel, nonetheless the dog’s aggressive propensities. He stated that the dog owner stayed at the hotel for 10 days, declined housekeeping service, moved from room to room every few days, never notified the front desk that he had a dog in his room, and never paid a required pet fee. The hotel’s stance was adamantly that it was not negligent. Consequently, the hotel’s attorney filed a motion for summary judgment.
The Plaintiff’s attorney then hired CPT to counter the Defense motion. CPT prepared an expert witness affidavit that discussed the size of the dog (over 100 lbs.), the fact that interviewed housekeepers refused to enter the dog owner’s room out of fear of the dog, and that the dog owner multiple times per day over a 10-day period walked his dog in the lone grassy area of the hotel property, which was directly in view of the lobby and front desk. The report also argued that even though the hotel never received pet fees from the dog owner, the lack of collection of such fees was indicative of the overall lax management of the hotel staff, especially given that front desk and housekeeping staff were aware of the dog or should have been aware of the dog and that housekeeping was apparently aware of the dog’s aggressive propensities. Moreover, the dog owner stated that he moved from room to room over 10 days not to avoid paying pet fees, but because air conditioners and door locks malfunctioned in each prior room, whereby he requested several room changes. In addition, he stated that he was not aware that he needed to pay a pet fee. Regardless of the truth of the prior statement, the hotel had ample opportunity to observe his dog and yet staff never requested a fee or collected a fee. Furthermore, although housekeeping staff believed the dog was aggressive, based on how it barked when they looked through a window and walked by the door of the room, neither they nor management took action to remove the dog to protect guests of the hotel.
The CPT expert witness affidavit was sufficiently compelling, whereby the Defense motion was denied.
A local rescue organization tried to save a Pit Bull dog with a history of aggression to fellow dogs. The rescue paid for a professional trainer, who worked with the dog in a kennel environment. The dog’s behavior improved slightly. Yet, the dog still posed a hazard should it come in contact with another dog. […]
A local rescue organization tried to save a Pit Bull dog with a history of aggression to fellow dogs. The rescue paid for a professional trainer, who worked with the dog in a kennel environment. The dog’s behavior improved slightly. Yet, the dog still posed a hazard should it come in contact with another dog. Nevertheless, the rescue elected to move the dog from its kennel environment to a foster environment in a condominium complex. Moreover, the rescue organization never provided the foster caretaker specialized training on how to handle an aggressive animal or any aspects related to canine aggression. In addition, they never provided her training on how to fit or operate the Gentle Leader head halter collar that they preferred the caretaker use when walking the animal.
After several days, during a walk the dog escaped the Gentle Leader, most likely because it was fit improperly. Thus, due to lack of training and carelessness on the part of the rescue organization, the caretaker was left with a leash and collar, but no dog. While loose the dog ran more than 50 yards and then attacked a small dog walked by a neighbor. The neighbor attempted to physically remove the Pit Bull from her dog. While doing so she suffered bite wounds that required medical treatment. Fortunately, her dog ran and hid while she held the Pit Bull, whereby her dog did not suffer significant injury. During the process, the caretaker was uninformed regarding how to intervene and only came upon the scene near its conclusion.
The neighbor (Plaintiff) was taken by ambulance to the emergency room. At the emergency room medical staff treated wounds to her hand and forearm, gave her a tetanus shot, and gave her a rabies inoculation that cost over $10,000. She later sued the rescue organization and the caretaker for her medical costs, plus pain and suffering.
The Plaintiff’s attorney contacted CPT to help strategize the case and to submit an expert witness affidavit that strengthened an argument of negligence on the part of the rescue organization. CPT’s report emphasized the organization’s knowledge of the dog’s aggressive propensities, the organization’s failure to train the caretaker in how to manage a dog with an aggressive temperament, the organization’s failure to train the caretaker in the operation of the equipment provided, and in its selection of an inappropriate caretaker for the animal, given that the animal was young and strong, while the caretaker was elderly, suffered from an orthopedic condition, and admittedly had difficulty walking the dog when it pulled. The report provided an incontrovertible conclusion that the rescue organization was negligent, whereby the organization’s insurance company promptly submitted a reasonable settlement offer that satisfied the Plaintiff.
In Philadelphia, parents purchased 3 ferrets that they contained in a canvas enclosure. When the mother left her infant unattended after a feeding the three ferrets escaped the enclosure and savagely attacked the infant. By the time the mother intervened, one or more of the ferrets had literally chewed the nose off the infant, leaving […]
In Philadelphia, parents purchased 3 ferrets that they contained in a canvas enclosure. When the mother left her infant unattended after a feeding the three ferrets escaped the enclosure and savagely attacked the infant. By the time the mother intervened, one or more of the ferrets had literally chewed the nose off the infant, leaving a visibly gaping sinus cavity, and had caused severe lacerations and punctures to the lips, cheeks, chin, and top of the head. The infant was rushed to the emergency room for surgery and nearly died from the injuries.
Although the infant survived, she experienced salient physical disfigurement that will result in years of multiple reconstructive and cosmetic surgeries, pain and suffering, and presently unknown psychological damages. Since the parents are unemployed, indigent, and subsist on government transfer programs, the court assigned a guardian ad litem to administer to the child’s legal needs. The guardian hired a top Philadelphia legal firm to address civil indemnification. Despite the parents’ negligence, they had no avenue to provide financial recovery for the child’s damages. The law firm consequently contacted CPT to consult in strategizing the case.
CPT provided research on ferret behavior, animal enclosures, and a history of similar ferret attacks. CPT’s work provided sufficient background to commence a product liability lawsuit against the big box retailer that sold the ferrets without warnings regarding the potential of ferrets to attack infants, especially immediately post a feeding, and against the manufacturer and distributor of the canvas enclosure that was insufficient to contain ferrets that have sharp teeth and that are known escape artists. Moreover, based on numerous consumer complaints, the specific enclosure may have had a defective zipper that the manufacturer failed to remedy.
The scientific research background of CPT’s Mark Spivak and his 1980’s experiences in high-tech manufacturing also proved helpful in designing a research methodology to test the physical impact of ferret teeth upon the zipper area and the canvas of the enclosure and in hiring appropriate mechanical engineers and materials scientists to conduct a customized product evaluation pertinent to the case. The case is ongoing.
There is an old aphorism from the musical The Man of La Mancha– “Whether the pitcher hits the stone or the stone hits the pitcher, it’s going to be bad for the pitcher.” We can paraphrase the pithy line delivered by Sancho Panza to: “Whether the dog hits the motorcycle or the motorcycle hits the […]
There is an old aphorism from the musical The Man of La Mancha– “Whether the pitcher hits the stone or the stone hits the pitcher, it’s going to be bad for the pitcher.”
We can paraphrase the pithy line delivered by Sancho Panza to: “Whether the dog hits the motorcycle or the motorcycle hits the dog, it’s going to be bad for the dog.” In this Virginia case, the contact was lethal for the dog, bad for the motorcycle, and caused serious injury to the Plaintiff, the motorcycle rider.
The Plaintiff and 2 friends were riding their motorcycles in a rural area of Campbell County, Virginia. They were riding in a formation with the Plaintiff leading and the other 2 riders behind her and alongside one another. While traveling below the 45 mph rural speed limit, on a clear day, with excellent weather, an Australian Shepherd dog suddenly bolted from its property and impacted the front tire of the motorcycle.
Subsequently, the motorcycle crashed to the ground, the Plaintiff became dislodged from her motorcycle and slid violently across the roadway, one of the riders behind her ran over her, and the dog was ejected to a ditch on the opposite side of the roadway. The Plaintiff suffered lacerations, contusions, and severe orthopedic and internal injuries. The dog survived for several minutes, but died before anyone could transport him to a veterinarian.
The first impression from an attorney is to exuberantly shout, “Slam dunk! Strict liability!”
However, Campbell County subdivides areas where dogs may or may not run at large. Unfortunately for the Plaintiff, the incident occurred in a location where owners were permitted to allow their dogs to run freely, even onto public roadways. Therefore, for Plaintiff counsel to obtain the highest probability of indemnification the legal team needed to prove negligence- and conclusively proving negligence required proving scienter.
Consequently, the Plaintiff’s law firm hired CPT. The CPT expert read interrogatories, depositions, police reports, medical reports, local and state statutes, and other pertinent documents; conducted research; and wrote a compelling affidavit.
The CPT affidavit focused on the following legal arguments
The case was scheduled for trial. The CPT expert was prepared to appear. However, one month prior to trial the case settled favorably for the Plaintiff. The law firm replied that CPT’s assistance was vital in achieving such a satisfactory outcome, as prior to CPT’s inclusion and the submission of CPT’s compelling affidavit Plaintiff attorneys believed opposing counsel would not settle- and certainly not for an acceptable financial figure.
CPT provided expert consultation, analysis, and an affidavit in support of a Defendant in a civil matter filed in the state of Montana. The Defendant was accused by the Plaintiff, a veterinary technician, of negligently failing to inform the Plaintiff and her employer, a veterinary facility that also provided boarding services, of the aggressive propensity […]
CPT provided expert consultation, analysis, and an affidavit in support of a Defendant in a civil matter filed in the state of Montana. The Defendant was accused by the Plaintiff, a veterinary technician, of negligently failing to inform the Plaintiff and her employer, a veterinary facility that also provided boarding services, of the aggressive propensity of the Defendant’s 3 Olde English Bulldogges. While the Defendant was on vacation, one of his dogs aggressively bit the Plaintiff, whereupon the other two family dogs packed aggressively and also bit and shook the Plaintiff. Resultantly, the Plaintiff suffered a fractured ulna and radius, a dislocated shoulder, and severe lacerations to her upper and lower extremities.
The expert affidavit countered the Plaintiff’s claims of negligence by emphasizing:
CPT’s Mark Spivak participated as a plaintiff expert witness in a case in Mississippi filed in Federal District Court. The case raised relevant current events issues regarding the right of passage of airline passengers with service dogs and the behavior and training of airline personnel who interact with disabled passengers. The Plaintiff, a military veteran […]
CPT’s Mark Spivak participated as a plaintiff expert witness in a case in Mississippi filed in Federal District Court. The case raised relevant current events issues regarding the right of passage of airline passengers with service dogs and the behavior and training of airline personnel who interact with disabled passengers.
The Plaintiff, a military veteran who served two tours of duty in Afghanistan and Iraq, arrived at the Manhattan Regional Airport to check-in herself and her service dog for an American Airlines flight departing Manhattan, Kansas and arriving in Biloxi, Mississippi. However, the ticket agent refused to allow passage for the service dog unless the passenger (Plaintiff) produced specific documentation- a letter from a licensed mental health professional, on letterhead, dated within the past 12 months, denoting the license number, date of the license, and state of licensure of the mental health professional, stating that the passenger is a current client of the practice, that the passenger has been diagnosed with a condition categorized within DSM V, and that the dog has been prescribed by the mental health professional as a component of the passenger’s treatment plan. The ticket agent also stated that passengers must provide 48 hours notice to board with a service animal and that the Plaintiff failed to provide ample notice.
Therefore, based on the lack of proper documentation and notification he was denying complimentary boarding privileges for the animal, although he communicated that the Plaintiff could pay a $150 fee to board the animal in cargo.
The Plaintiff argued, contacted customer service, and spoke to supervisors. Nevertheless, American Airlines remained steadfast in requiring monies for her to board her service animal. She left the airport in tears. The next day she returned to the ticket counter with a letter from her mental health professional that she found stored on her email server. She had used the letter to board previous flights on American Airlines. However, she was again denied passage, as the letter was missing a date and the date of license of the mental health professional. She also, in the opinion of the ticket agent, did not provide ample notice, as only 24 hours elapsed from the time she first communicated her wish to fly with her service dog.
She then rebooked for 24 hours later, 48 hours after her original flight. When she arrived at the ticket counter the third time, she was finally allowed to board with her service dog. Interestingly, she was allowed to board without an accompanying pet fee, although she did not produce documentation any different than the day previous. The only differences were that an additional 24 hours elapsed and she became a squeakier wheel when she verbally and in an email threatened to sue.
Yet, American Airlines didn’t give in easily. Not only did American postpone the Plaintiff’s arrival by 48 hours, which caused her to miss business meetings, when she arrived they embarrassed her by announcing loudly that there was a wheelchair awaiting her. Then, within the presence of the public, gate agents strongly insisted that the Plaintiff travel within the terminal in the wheelchair, even though a wheelchair was never requested and was declined repeatedly by the Plaintiff. The actions of the arriving gate agents drew undue attention to the Plaintiff and unnecessarily and with apparent malice caused public embarrassment to the Plaintiff.
The CPT expert wrote an affidavit that was crucial to the Plaintiff receiving a fair settlement prior to trial. In addition, the CPT Expert 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.
2 Legitimate and 2 Illegitimate Interior Vehicle Searches Based Upon Exterior Police K-9 Behavior CPT provided expert witness consultation in 4 motions to suppress involving K9 searches of a motor vehicle. In the first case, the client (Defendant) was pulled over in Dekalb County ostensibly for crossing the solid white line between his lane and […]
CPT provided expert witness consultation in 4 motions to suppress involving K9 searches of a motor vehicle.
In the first case, the client (Defendant) was pulled over in Dekalb County ostensibly for crossing the solid white line between his lane and the right shoulder. Nevertheless, subpoenaed dashboard video indicated the Defendant’s car was targeted, possibly from an informant’s tip. After questioning the client outside the vehicle, with the client talking articulately and with proper diction and not appearing physically to be under the influence of alcohol or narcotics, the police officer stated the client’s actions were “erratic,” which provided reasonable articulable suspicion to commence an exterior search of the vehicle with his male, K-9 Belgian Malinois. The dog initially was excited and distracted upon leaving the police cruiser, which prompted the officer to circle the vehicle a second time. During the second revolution the K-9 dog remained focused, despite a female Malinois in estrus present in the back seat of the client’s vehicle, the handler did not unduly influence the dog’s work, and the dog clearly performed its trained alert behavior, a down stay, upon reaching the driver’s side rear of the client’s pickup truck. The subsequent interior vehicle search quickly located 2 kilos of methamphetamine.
The Defendant’s attorney contracted with CPT to review the dashboard video and pertinent written documentation (police reports, training records of the dog, statutory law, case law) to determine whether the dog produced a valid alert behavior and whether the dog’s behavior appeared influenced by the presence of the female dog in heat. A Motion to Suppress based upon the illegitimacy of the officer’s or dog’s behavior would have been a powerful defense tool. Nevertheless, CPT responded that the evidence did not support such a motion, at least a motion emanating from the action of the dog’s exterior search, although an action based on the officer’s conclusion of erratic behavior prior to the search may be warranted.
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In the second case, on a 91-degree August day 2 clients (Defendants) were pulled over in Coweta County, ostensibly for driving their Florida registered pickup truck with window tinting that exceeded Georgia limits. Subpoenaed dashboard video showed the officer proceeded by requesting that the driver produce his license, registration, and insurance card. After asking a backup officer to input the data into a dashboard computer, the officer asked the passenger to exit the vehicle for a “field interview” that focused on his origin and destination. The passenger responded cooperatively. The officer next demanded the passenger move away from the vehicle and alongside the backup officer. He then asked the driver to exit the vehicle and conducted a similar field interview behind the rear hatch of the pickup truck. Meanwhile, neither officer produced a meter verifying window tint levels. During the interrogation, the driver responded with some answers slightly different from those of the passenger. The officer stated the disparity in responses and the lack of cooperation of the driver provided reasonable articulable suspicion to employ his male, K-9 Belgian Malinois in an exterior vehicle search.When first removing the dog from the police cruiser, the officer conveniently had the dog’s reward toy, a ball, roll underneath the hatch of the Defendants’ truck. He then asked the Driver to retrieve the ball, whereupon the driver handed the ball to the second officer. Once leashing the dog and removing the dog from the cruiser, the officer proceeded to verbally excite the dog with enthusiastic praise and physically excite the dog with playful slaps around the dog’s rib cage. He then commenced the search, whereupon throughout the process he pointed with his hand where he wanted the dog to move amidst the vehicle, he administered leash corrections when the dog lost focus or didn’t adhere to instruction, and he vocally excited the dog. The search started at the rear passenger wheel well, progressed to the front of the vehicle, and then moved to the driver’s side. When the dog reached the rear wheel well the dog went underneath, where the ball was previously located, then promptly exited. The dog then was guided by the handler to the rear of the vehicle. When the dog didn’t show any interest in working, the officer administered a hard physical leash correction that again directed the dog underneath the bed.
Once moving underneath the bed the dog quickly exited without ever sitting, the dog’s lone trained alert behavior, as indicated by expert review of 6-months of training logs. Nevertheless, the officer stated the dog’s behavior clearly indicated there was narcotics in the vehicle, which provided him probable cause to initiate an interior search. The officer started his interior search in the covered bed of the pickup, rather than the cab. Once opening the hatch and sliding the bed cover, he ignored multiple suitcases to immediately open a garbage bag containing 24 pounds of marijuana, whereupon he placed the clients under arrest for narcotics trafficking.
The Defendants’ attorneys contracted with CPT to assist with strategy and to testify during a Motion to Suppress. CPT reviewed dashboard video, police reports, and training logs and conducted research regarding case law, handler and canine conduct during narcotics searches, preferred police operating protocols, the effects of social handler influence on dog behavior, videos of handlers performing proper and improper searches, and videos of dogs alerting clearly and properly during searches. CPT also requested production of the policy manual for the police jurisdiction; a deposition or detailed statement from the State’s expert regarding the major points of his planned testimony; and formal logs regarding all interactions between the officer and citizen drivers, to determine the percentage of drivers he pulled over where he used his dog, the percentage of times he stated the dog alerted, and the percentage of interior searches that resulted in the acquisition of illegal narcotics.
In addition, the CPT expert used his years in the semiconductor industry to recommended the defense team add an expert chemist skilled in gas chromatography. The chemist could then investigate the evidence bags, as mylar is impermeable to nitrogen and mostly impermeable to oxygen, the major constituents of atmospheric air. Moreover, vacuum sealing the bags would further diminish the movement of volatile organic compounds (VOCs) and a 91-degree ambient temperature would encourage upward air flow, rather than an air plume underneath the pickup bed. However, there was insufficient time before the scheduled hearing to fulfill the latter expert request.
During the hearing, the CPT expert was qualified by the judge after voir dire. He then testified the search was highly biased by a number of confounds:
To buttress his opinions, the CPT expert witness cited peer reviewed fMRI research he conducted on canine olfaction under the aegis of the Office of Naval Research. He also cited a study conducted at the UC Davis Veterinary School, where the research concluded that police K9s are highly influenced by incidental and purposeful handler cues. In the research, police handlers were provided misinformation that drugs were planted wherever there was a red card. Subsequently, the dogs communicated false-positive alerts over 80% of the time. In addition, the expert produced videos of well trained dogs, handled in an unbiased manner, in which the dogs clearly produced positive indications, in sharp contrast to the K9 relevant to the case. The CPT expert believed (and still believes) strongly that his arguments were valid and persuasive.
Nevertheless, the State expert, who also was the person who trained and certified the dog and handler, testified that the POST protocol in which the dog was certified allowed for a number of indication behaviors that can be effectively interpreted by educated handlers.
The preceding was supported by precedent from the 2013 US Supreme Court decision in Florida v. Harris. Therefore, although sit may be the preferred alert behavior, or the trained “conditioned response,” there are a myriad of other behaviors that may indicate the dog has detected a target odor. The alternative behaviors include an increase in respiration and/or physical activity, which a perceptive and educated handler will accurately determine is an indication, even in the absence of the conditioned response. Moreover, in the opinion of the judge, the subsequent acquisition of a substantial quantity of illegal narcotics verified such on the day in question.
Although the CPT expert believes the State expert’s claim that the dog’s increase in respiration constituted a valid alert is a huge stretch of the truth, the Defense case always had four major obstacles: 1) the seizure of a large quantity of marijuana, 2) a conflict of interest regarding the State’s objective to imprison drug dealers, 3) a conflict of interest regarding civil asset forfeiture laws that financially enrich the State, and 4) the tendency for judges to provide greater credence to law enforcement officers and their experts over persons assisting the accused. Regardless, perhaps with a judge more open-minded to the application of 4th and 14th Amendment rights, more willing to acknowledge the officer’s multiple inappropriate actions, and more willing to evaluate science over emotion, the outcome would have been different.
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In the third case, based upon the observation of what GBI agents believed was a drug deal at a Gwinnett County Walmart, the Georgia State Patrol initiated a traffic stop. The stated premise behind the stop was that an automatic license plate reader (ALPR) communicated that the North Carolina vehicle was not currently insured. After conducting field interviews of the 3 passengers and a personal search for weapons, a K9 officer led his male German Shepherd Dog around the exterior of the vehicle. The dog was disinterested, distracted, and appeared confused. To compensate, the officer repeatedly gave the dog breaks, administered high-pitched verbal encouragement, implemented leash corrections toward the car, and pointed at different spots on the car.
At 17:21 of the dashboard cam the most controversial action of the exterior search occurred. The handler blatantly used his fingers to increase the opening of the front passenger door, which was not fully closed by the officer after he requested the exit of the front seat passenger. Thus, the door was not ajar through the action of the passenger, but through the apparently conscious act of the officer.
At 17:23, through the open door the dog entered the front passenger area of the car. The dog remained inside the vehicle until 17:30. The dog then remained stationary outside the front passenger door. At 17:38, with the dog again looking disinterested and distracted, the handler says “Where is it?” while pointing to the door with his right hand, bending at the waist, and repeatedly nodding his head. He then repeated the words “Where is it?” while continuing to saliently nod his head while bending from the waist. At 17:41 the dog hesitantly began to sit. At 17:42 the dog completed his sit. At 17:44 the handler praised and released the dog, whereupon he concluded the exterior search. A subsequent interior search found over 1 pound of methamphetamine and a firearm.
Since the K9 officer appeared to base probable cause upon the dog’s sit behavior and since the sit behavior occurred immediately post the dog’s entrance into the vehicle- an entrance facilitated by 2 direct actions of the officer- there were 2 key questions related to the motion to suppress. First, was the dog’s entrance into the vehicle legal? Second, did the repeated trips around the vehicle and seemingly purposeful verbal, bending, and head nod prompts inappropriately cue the dog?
In regard to the first question, the CPT expert’s research cited multiple relevant cases, including Felders v. Malcom (US Court of Appeals 10th Circuit 2014), US v Vazquez (10th Circuit 2009), US v. Winningham (10th Circuit 1998), and US v. Pierce (3rd Circuit 2010). The opinion of Felders v. Malcom states, “facilitating a dog’s entry into a car prior to establishing probable cause violates the Fourth Amendment.” In Vazquez the court states it is a “constitutional violation” when a K9 dog’s leap into a car is “orchestrated,” rather than “instinctual.” The opinion in Pierce states, “It is a Fourth Amendment violation for a narcotics dog to jump into a car because of something the police did, like training the dog to jump into cars as part of the search or facilitating or encouraging the jump.”
Regarding the second question, CPT recommended the attorney: 1) ask the handler in court to repeat the verbal and physical behaviors amidst the dog and observe whether the dog sits in the absence of a target odor; 2) obtain video of previous traffic stops so the expert may determine the reliability of the dog sitting after receiving similar verbal and/or physical communications from the handler; 3) obtain video of previous traffic stops so the expert may determine whether the dog sat only or predominantly after multiple trips around the vehicle or after receiving similar handler cues; and 4) obtain video of previous traffic stops so the expert may determine whether the handler pressured or fatigued the dog by walking around the vehicle until the dog sat. In addition, the CPT expert produced video of several CPT Trainers in less than 5 minutes educating dogs to automatically sit in response to the identical cues produced by the K9 handler.
Due to a limited budget for this appointed federal case and due to a schedule conflict, the CPT expert was unavailable to testify. Nevertheless, the above strategies were implemented in the attorney’s brief to the court prior to the date of the hearing.
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In the fourth case, in Omaha, NE, uniformed police officers initiated an interrogation of 3 persons parked legally alongside a residential road. The time was 3 am. The 3 middle-age vehicle occupants were minority. The 2 officers were white. The officers commenced the interview despite the vehicle occupants not committing a traffic violation or otherwise openly committing an illegal act.
Upon approaching the vehicle, one officer asked for the driver’s documentation. Meanwhile, the other officer asked the rear passenger occupant to exit the vehicle so he could commence a field interview. During the interview the person bolted and escaped. The officers then handcuffed and detained the front seat occupants.
Despite remaining cooperative throughout the process, they were forced to remain handcuffed in the rear of separate police cruisers while waiting more than 50 minutes for a K9 officer to arrive. Upon arrival to the scene, the K9 officer received a background from the uniformed officer. He then promptly commenced an exterior search with his Belgian Malinois. Upon the second revolution around the vehicle the dog barked. A subsequent interior search found phencyclidine (PCP) and rolling papers.
In consideration of a possible motion to suppress, CPT was contracted to conduct a thorough analysis of the behavior of the K9 handler and dog. CPT reviewed multiple body cams and dash cams, read multiple police reports, examined 6 months of training logs, and evaluated 6 months of field logs. The training logs showed appropriate documentation, reliable behavior, proper handling, multiple training environments, training protocols both on and off-leash, and target samples varying in quantity, packaging, and location. The training logs also clearly communicated that the dog’s conditioned response was barking, which is not as common as a sit or down, but is a viable alert behavior. The videos showed a dog handled correctly, without undue handler influence. The dog appeared to alert because it detected a target odor, not because it was influenced by human-dog social communication or handler pressure. Moreover, to satisfy the question of whether the dog was reliable in the field and whether the K9 officer was prone to racial profiling, CPT completed a statistical analysis of field stops. With over 40 data points, the dog’s positive predictive value (PPV) was 82%, meaning that only 18% of the dog’s alerts were false-positives. Furthermore, the racial constituency of the drivers searched paralleled the demographics of the community and the majority of false-positives occurred with white drivers.
Therefore, CPT informed the attorney that there may be an action related to Terry v. Ohio (US Supreme Court 1968) arising from an illegal detainment of the vehicle occupants without reasonable articulable suspicion. Similarly, there may be an action related to Rodriguez v. United States (US Supreme Court 2015) originating from the 50-minute wait for the K9 dog, especially since the 2 detained persons were cooperative and had not committed a traffic or criminal violation in the presence of the officers. The rear-seat passenger fleeing does not make them guilty by association. However, there was not a valid action related to improprieties by the K9 officer and dog, as they had undertaken their job tasks responsibly.
When summarizing the 4 referenced cases we wish attorneys to realize that despite our distaste for the “drug war,” CPT will provide a thorough, scientific, objective analysis that should hold weight in court. We represent the truth. Therefore, although to date all our motion to suppress work has been for defense counsel, we will provide equally professional and impartial work product for the prosecution.
CPT consulted on a case in Austin, Texas, in which a divorced couple argued regarding the safety of child visitations in the presence of a potentially aggressive dog that resided with the noncustodial parent. The couple had a 3-year old daughter that visited the father bi-weekly on weekends. However, a contentious situation arose when the […]
CPT consulted on a case in Austin, Texas, in which a divorced couple argued regarding the safety of child visitations in the presence of a potentially aggressive dog that resided with the noncustodial parent. The couple had a 3-year old daughter that visited the father bi-weekly on weekends. However, a contentious situation arose when the father allowed his indigent sister to move into the household. The adult sister owned a large dog that while the couple was together had growled at the child and lunged at the child’s grandmother. The mother asked amicably for the father to institute preventive measures precluding contact between the dog and child. However, the father initially responded that the dog was “safe” and refused to comply. Consequently, the divorced mother commenced civil action to restrict visitation unless the dog was removed from the household permanently or at least during the time periods of the visitations. CPT was integral in strategizing the Plaintiff case and was scheduled to travel to Austin to evaluate the dog and subsequently testify during the custody hearing. Fortunately, the father’s attorney realized their position was weak. Thus, she encouraged the father to enter mediation, whereupon the Plaintiff and Defendant settled. They cooperatively agreed that the dog would stay with a pet sitter at the father’s expense during the periods of visitation. The solution was optimal for all parties, most of all the daughter, but even for the dog, who based on history saliently became distressed upon proximal exposure to unfamiliar people.
While running across an area in dispute between the Plaintiff and Defendant as to whether it was community property or private property, the Plaintiff client’s minor child was severely bitten on the leg by the Defendant’s chained German Shepherd Mix. Resultantly, the child required several surgical procedures. The Defendant’s lawyers hired by his insurance company […]
While running across an area in dispute between the Plaintiff and Defendant as to whether it was community property or private property, the Plaintiff client’s minor child was severely bitten on the leg by the Defendant’s chained German Shepherd Mix. Resultantly, the child required several surgical procedures. The Defendant’s lawyers hired by his insurance company refused to provide a reasonable settlement offer. They argued that the dog was properly confined within the laws of the county and municipality, that the child had trespassed onto the Defendant’s property, that the Defendant had posted appropriate “Beware of Dog” signs along the front of the property, and that the Defendant had no prior knowledge of the dog’s aggressive behavior, since there were never any formal charges or convictions against the Defendant for violating dangerous dog statutes. Due to opposing counsel’s recalcitrance, Plaintiff attorneys contracted with CPT. Unfortunately, a first-hand behavioral evaluation of the dog was impossible, since the Defendant had the dog euthanized several months after the incident.
Miami-Dade County has a breed specific ordinance than bans residents from owning and housing a pit bull dog within the County’s domain. The Plaintiff owned a pit bull that he stated was a trained service dog. The County refuted the Plaintiff’s claim regarding the dog. The County then informed the Plaintiff that, in accordance with […]
Miami-Dade County has a breed specific ordinance than bans residents from owning and housing a pit bull dog within the County’s domain. The Plaintiff owned a pit bull that he stated was a trained service dog. The County refuted the Plaintiff’s claim regarding the dog. The County then informed the Plaintiff that, in accordance with the County statute, should he continue to maintain the dog within his County residence that the County would seize and euthanize the dog. The Plaintiff then sued the County for his right to maintain the dog within his Homestead, Florida residence. In the interim, until the case completed, the Plaintiff temporarily rehomed his dog with a caretaker.
The Plaintiff’s attorney contacted CPT to assist with the case. CPT began by informing the attorney of key facts necessary in determining the definition of a service dog per the Federal Americans with Disabilities Act (ADA). After listening to CPT’s presentation, the Plaintiff’s attorney agreed with CPT that the ADA was likely prepotent to the County legislation.
The ADA requires two primary criteria to classify a dog as a service animal. First, the recipient must have a legitimate disability as defined by the ADA, which means that the recipient must have a physical or psychological disease or condition that substantially affects “major life activities” or major organ systems. Second, the dog must perform a behavior “related to” the disability, meaning that the behavior must mitigate the limitations and/or effects posed by the disability.
After speaking with CPT, the Plaintiff’s attorney met with the County attorney, whereby they agreed that the ADA superseded the County legislation. They also agreed that the Plaintiff was by definition disabled. The Plaintiff had significant upper extremity, mobility, and balance limitations as the result of a severe motorcycle accident and for many years suffered from periodic respiratory attacks that required the immediate intervention of corticosteroid medication via a prescription inhaler. Thus, the only major issue still in contention was whether the dog was legitimately a service dog as defined by the ADA.
The Plaintiff’s attorney and County attorney then agreed to enter mediation. As part of the terms of the mediation, both parties agreed to jointly hire CPT to evaluate the dog and to author a report stating whether the dog was in fact by definition a service dog. Furthermore, both parties agreed to abide by the conclusions registered in CPT’s report, provided that the report was logical, unbiased, and supported by evidence.
CPT then flew to Miami to evaluate the dog. Although by the text of the ADA the dog needed only to perform a behavior related to the disability, CPT also tested whether the dog would be safe if provided public access. Therefore, CPT administered the American Kennel (AKC) Club Canine Good Citizen (CGC) Test, the Assistance Dogs International (ADI) Public Access Test, and the standard CPT Adult Dog Evaluation. CPT also asked that the dog perform the specified assistance behavior, locating and retrieving an inhaler upon command, both at home and in a public environment (a crowded shopping mall). To avert potential bias, CPT performed all the preceding evaluations in the presence of the attorneys.
The dog performed admirably both at home and in public, whereby CPT authored a detailed report that concluded that the dog was a service animal as defined by the ADA. Consequently, the Plaintiff was allowed to maintain his pit bull service dog within his Miami-Dade County residence. Furthermore, the County agreed to author a formal exception to the breed restrictive ordinance, so that in the future persons relocating to the County would not need to commence a law suit if their pit bull dog is a valid service dog.
While enjoying some nice weather in the Charlotte, NC area, an 11-year old girl, her father, mother, and older sister took an early evening walk in their subdivision. The family walk was pleasant until a neighbor opened her backyard gate, whereby one of the neighbor’s dogs immediately bolted across the lawn, across the street, and […]
While enjoying some nice weather in the Charlotte, NC area, an 11-year old girl, her father, mother, and older sister took an early evening walk in their subdivision. The family walk was pleasant until a neighbor opened her backyard gate, whereby one of the neighbor’s dogs immediately bolted across the lawn, across the street, and directly toward the startled family. The dog next circled the family in a threatening manner. After completing one circle, the dog immediately launched a vicious attack on the young girl.
The first bite was insignificant. However, the second bite severely tore into the tricep muscle of the girl’s left arm. The dog latched tightly while shaking the frightened girl to the ground. The wound bled profusely. Several minutes elapsed before the girl’s father could forcibly remove the dog’s jaws from the arm of his distraught daughter.
An ambulance arrived to take the girl to the nearest emergency room. Emergency room doctors sutured the deep and long laceration. However, her injuries went beyond the merely cosmetic. She needed to see a neurologist due to paresthesia in the arm- an intermittent sensation of tingling or “pins and needles.” She needed to see a mental health professional due to symptoms of post traumatic stress disorder that caused her to become agoraphobic (fear of open spaces) in her neighborhood and cynophobic (fear of dogs). The agoraphobia resulted in weight gain as she became hesitant to leave the house after arriving home from school. The fear of dogs resulted in the family canceling plans to acquire a pet and in the victim having panic attacks when seeing large dogs. In addition, in accordance with doctors’ instructions she could not attend physical education class for several months. Consequently, she became depressed and her grades suffered. In addition, she needed plastic surgery to reduce physical scarring from the attack.
Considering the significance of the physical and emotional damages, her father commenced a civil suit on behalf of his daughter. However, the neighbor’s insurance company refused to budge from an inequitably low initial offer that covered only existing and anticipated medical costs.
Plaintiff’s counsel then engaged CPT to help strategize the case. CPT’s role included composing deposition questions, composing questions for a private investigator, aiding in researching the dog’s behavioral history, interpreting data, providing insight regarding the dog’s breed origin and behavior, and providing insight regarding the neighbor’s actions and knowledge. CPT expert witness Mark Spivak also remained available to move beyond a consultative role if the case failed to settle and there became a need for depositions or trial testimony.
The major sticking point was an acknowledgement of negligence. The Defendants (a married couple owned the dog, although only the female spouse was present during the event) stated that they had no knowledge of the dog’s aggressive propensity. However, upon CPT joining the legal team, the private investigator was able to locate and question the parent of a child that had received over 20 stitches from the dog just a year earlier. Yet, the Defendants insisted that the previous injury was accidental and occurred when the dog was “playing” with the child.
To impeach the Defendants’ argument, CPT constructed a detailed expert witness report that considered the elements required to establish tortious negligence. The report explained the duty the Defendant owed the victim, the breach of the duty, the cause in fact of the injuries to the Plaintiff, and the proximate cause, whereby with clear logic CPT established that a reasonable and prudent person would have understood that the injury to the face of the first youngster denoted aggression, not play, and that the Defendants afterward failed to take any action (training, behavior modification, exercise, prophylactic management protocols) that would better safeguard the community. In addition, the report documented the Defendants’ admission that they did not have full control of the animal, that he was rarely socialized, that he was energetic and difficult to handle, and that they had physical ailments that inhibited their ability to control such a sizeable and powerful animal. Lastly, the report explained that the dog was from a breed known for aggressive behavior and that the dog acted similarly with the victim to how a breed member would act when hunting wild boar, the breed’s typical working role.
After seeing the report during mediation, Defense counsel capitulated. They admitted negligence and significantly raised their offer, whereby the case settled favorably prior to trial.
Although CPT is located in Georgia, Mark Spivak is available to participate in out-of-state cases, such as this case in North Carolina and the following cases in Florida, Texas, Mississippi, Montana, Virginia, and Pennsylvania.
CPT’s Mark Spivak recently participated as an expert witness in a criminal murder case. A 71-year old grandmother in Hart County, Georgia was taking care of her grandson, while her daughter, the child’s mother, spent time at a tanning salon. During their time together the grandmother made a stop at her house to feed two […]
CPT’s Mark Spivak recently participated as an expert witness in a criminal murder case. A 71-year old grandmother in Hart County, Georgia was taking care of her grandson, while her daughter, the child’s mother, spent time at a tanning salon. During their time together the grandmother made a stop at her house to feed two dogs that she kept in a backyard pen. The dogs enjoyed playing with the infant. Therefore, she let her grandchild out of the car to interact with the dogs. After feeding the dogs she closed the pen. She then proceeded to open the rear door to her kitchen. The grandmother opened the door gingerly and only a crack, since inside were two Pit Bull dogs. The Pit Bulls had never bitten anybody outside the family and never bit family members severely. Yet, she did not trust the Pit Bulls around her grandson. Typically, when with her grandson, she placed him in the car whenever she needed to enter her home, so that should the dogs somehow escape they would not have contact with the child. However, on the day in question she thought it wouldn’t be a problem if she just opened the door a crack while she squeezed her arm through to grab a piece of paper that was on a nearby counter.
Yet, despite her efforts to carefully open the door, the dogs, a male and a female, pushed through the crack, widened the gap between the door and the doorjamb, and bolted into the yard. The male dog instantly bit and shook the grandson. The female dog then packed, whereby both dogs repeatedly bit the young child. The grandmother hastily intervened verbally and physically. The less aggressive female dog then distanced itself from the child. However, it took the grandmother a longer time and much physical effort to remove the male dog and return him to the kitchen. When she placed the male in the kitchen, the female dog followed, whereupon the grandmother immediately secured the door and went outside to her grandson. She then promptly placed him in the car and raced to a nearby urgent care center. However, the boy’s body and head were mutilated. When she reached the medical facility the doctor rushed to the waiting area. He attended to the child in less than a minute. Unfortunately, it was for naught. The young boy was DOA due to exsanguination and shock.
The police swiftly began investigating. They interviewed the grandmother, the doctor, the child’s mother, and the child’s father. By the end of the evening the grandmother was taken away in handcuffs and charged with second-degree murder, second-degree cruelty to children, and involuntary manslaughter. The next day she was released from jail after posting a $50,000 bond. However, she realized her freedom might be only temporary. Second-degree murder, OCGA 16-5-1 (d), carries a minimum sentence of 10 years and a possible sentence of 30 years. Felony cruelty to children, OCGA 16-5-70 (c) carries a minimum sentence of 1 year and a maximum of 10 years. Involuntary manslaughter, OCGA 16-5-3, may result in a prison sentence of 1 to 10 years.
The incident occurred in August 2017. For 7 months the District Attorney was intractable about allowing a plea to a lesser charge. He remained relentless about seeking a murder conviction. In March 2018, one week before the trial date, the lead defense attorney contracted with CPT to provide expert services. CPT’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. CPT 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 focus of the Defense strategy was based upon the State’s burden of proof (beyond a reasonable doubt) and the definitions inherent to each charge. 16-5-1 (d) states that “a person commits the offense of murder in the second degree when, in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice.” Thus, although the second degree murder charge imposed the most serious penalty, it was secondary to the felony cruelty to children allegation, as the former can not occur without a conviction in the latter.
16-5-70 (c) states “any person commits the offense of cruelty to children in the second degree when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.” The issue of excessive physical or mental pain was inarguable. However, the issue of criminal negligence was certainly open to interpretation.
Criminal negligence, 16-2-1, defines a crime as “a violation of a statute in which there is a joint operation of an act or omission to act and intention or criminal negligence.” The statute defines criminal negligence as “an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.” Not even the gung ho prosecutor accused the grandmother of willful and wanton conduct. Yet, recklessness remained open for question.
Recklessness has legal definitions that vary from state to state and a general legal definition. OCGA 16-5-60 (b), defines Reckless Conduct as when “a person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.”
In law a criminal act must have both an actus reus (guilty act) and a mens rea (guilty mind). To have one without the other would not constitute a crime, except in cases of strict liability. The Modern Penal Code defines the multiple levels of mens rea, as negligence, recklessness, knowingness, or purposefulness (intent), where each is respectively correlated to an act of greater severity within the law. Negligence is when a reasonable person should have foreseen a substantial and unjustifiable risk and that actions will lead to the result, whereupon the actor may not have been aware of the risk but should have been. Recklessness is when the actor consciously disregarded a substantial and unjustifiable risk and its associated outcomes. Knowingness is when the actor is aware with great certainty of the risk and that the action will lead to the outcome. Purposefulness is when the actor is aware of the risk and intends for the outcomes to result.
Given that prisons are overpopulated, whereby truly bad people are released early on probation, we did not see the logic to populating a Georgia prison with a 71-year old grandmother who with good intent meant to take care of her grandchild and who by witnessing the horrific event already paid a penalty far greater than any that could be levied by the State. Moreover, imprisoning the woman was not going to keep the citizenry any safer, especially since the dogs were euthanized soon after the incident, and it would be burdensome for the taxpayers to finance $45,000 of annual room and board for someone who did not perform an illegal act and who did not have a guilty mind.
Thus, our legal strategy focused on dispelling the prosecution’s argument of recklessness, as without recklessness by law there could be no conviction. The CPT expert report argued that the act of opening the door a crack was an act to mitigate risk, not to accept risk. Thus, the grandmother did not disregard risk, she acted in a manner to consciously reduce risk. Moreover, her actions were those of a reasonable person and standard practice for many dog owners who have concern regarding the potential actions of their dogs. Therefore, the Defendant did not grossly deviate from the standard of care expected of a reasonable person, nor did she deviate with less than gross magnitude. In fact, she acted in a reasonable manner duplicated by many persons that CPT has observed in our 26 years of business. Consequently, in this circumstance, her actions may be legally construed as careless, but they do not fit the general legal definition or the Georgia statutory definition of reckless behavior.
Moreover, her specific action of opening her own door was not an illegal act and her dogs were not classified by the State as vicious or dangerous, whereby husbandry practices needed to deviate from those applied to the average pet dog. Accordingly, there was no strict liability.
After submission of the CPT report to the legal team and a video conference to revise 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 CPT’s testimony it would be difficult to secure unanimous juror opinion that beyond a reasonable doubt the Defendant acted recklessly. Although he refused to discuss a plea for 7 months, 2 days prior to trial he agreed to dismiss the murder and cruelty to children charges and have the Defendant plea 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 attorneys concurred that equivalent pre-trial plea results would have been unlikely without the inclusion of CPT to the legal team.
The Florida Event: In Florida, a 31-year-old man resided at a home owned by his mother. Despite his mother’s protest, for several days the man charitably took care of his ex-girlfriend’s Pit Bull. As you read on, you will agree the mother was more prescient than her forlorn, temperamental, and disobedient son. When the ex-girlfriend […]
In Florida, a 31-year-old man resided at a home owned by his mother. Despite his mother’s protest, for several days the man charitably took care of his ex-girlfriend’s Pit Bull.
As you read on, you will agree the mother was more prescient than her forlorn, temperamental, and disobedient son. When the ex-girlfriend arrived to pick up the dog, the rationale for why she was an “ex” soon became apparent.
While eating dinner at the kitchen table, an argument ensued. During the increasingly heated verbal quarrel, the Pit Bull impulsively disregarded the man’s caretaking largesse. Resultantly, the Pit Bull defended his female owner by nipping the man on the leg.
The man responded with fear (if you believe his claim) or rage (if you believe the girlfriend’s claim), whereby to protect himself and his young son he progressed to his bedroom. Once inside the bedroom, to further enhance safety he closed the door.
Readers may ponder that a closed bedroom door should be sufficient to protect he and his son from the dog. Moreover, a departure to the bedroom should interrupt the squabble. That would be a logical conclusion. However, the man said he was concerned his son may open the bedroom door and suffer an attack from the dog.
Therefore, he did what any loving, concerned father would do (note sarcasm). He exited his bedroom with a loaded AK-47 semiautomatic rifle. One may surmise he could have more effectively protected himself and his child by simply keeping the bedroom door closed. Yet, the man was not going to allow his ex’s dog to make him a prisoner in his own house (technically, his mother’s home, but perhaps one day he will inherit title).
The ex-girlfriend observed the paternally concerned (enraged?) man storm out of the room like he was hunting gators in the Florida Everglades. Thinking rationally, she sapiently became distressed regarding her impending welfare, not to mention the longevity of her dog. Thus, she locked herself and the dog inside a guest room.
As readers are likely aware, dogs are well known to shape-shift like the “Red Lady” from Game of Thrones. While shifting, they may become vaporous, transport themselves underneath a door, and then re-solidify on the other side (note sarcasm).
Therefore, the man acted as would any logical, valiant person trying to protect a 3-year-old child. He heroically shot through the guest bedroom door in an attempt to save the world (or at least he and his son) from the vicious animal he boarded without incident during the prior 2 days.
Furthermore, since the man had x-ray vision, he believed he could accurately aim through the door. Resultantly, he would injure or kill only the dog, while leaving his ex-girlfriend unscathed.
Except, he didn’t really have x-ray vision. And he certainly didn’t have good aim. Consequently, he permanently maimed the ex-girlfriend, while only grazing the dog.
Uh oh! Maybe using the rifle wasn’t a wise plan.
Neighbors called 9-1-1 once hearing the military rifle shots. With their red lights flashing in the hot Florida night, law enforcement rapidly arrived upon the scene.
Despite the man’s solicitations for sympathy and understanding, Tallahassee, Florida police detectives didn’t find his plan cerebral or valorous. Moreover, they failed to empathize with his communicated predicament.
A vicious dog may have supported the man’s position. However, the Pit Bull dog behaved amicably with the cops, EMTs, and an animal control officer. Therefore, the man’s argument lost credibility.
It didn’t take long for law enforcement to formulate an opinion. Once viewing his exsanguinating, disfigured girlfriend, who would never regain full use of one arm, the police didn’t require extensive strategizing or scrutiny before arresting the man for aggravated battery with a deadly weapon.
The man acquired a creative defense attorney, which doesn’t often happen on an appointed, indigent case. Nevertheless, despite his creativity, the defense counsel faced several formidable roadblocks.
First, the ex-girlfriend’s story was very different from the man’s description of the event. In her version, the event started when eating dinner. During dinner, the man imbibed excessively. He then started a kerfuffle about personal issues. As the disagreement evolved, the man became increasingly irate. He then threatened to get a gun. To enhance her safety, the ex-girlfriend locked herself and her dog inside the guest bedroom. She hoped temporary absence would make his heart grow fonder- or at least provide the man time to reach a calmer emotional state.
Unfortunately (according to the woman’s version) isolating to the guest bedroom did not work as she hoped. Since nothing beats louder than the heart of a man who feels scorned, her escape further agitated his dudgeon.
To appease his umbrage and teach the disobedient woman that a man is always king of the castle, even when the castle is legally owned by his mother, the man attempted to pry the guest bedroom door off its hinges with a screwdriver and butter knife. Once realizing his attempt to use rudimentary tools would not achieve objectives, he employed more modern weaponry. Unfortunately for the woman, a wood door is insufficient to stop a speeding bullet shot from close range by a powerful AK-47 assault rifle.
Second, the woman and dog were behind a door at the time he pulled the trigger. Therefore, the dog did not present an imminent threat warranting the use of a high-powered firearm.
Third, all the professionals present after the 9-1-1 call (detective, patrol officer, EMTs, animal control officer) stated this was a friendly Pit Bull. Accordingly, they did not believe the man was inappropriately threatened or bitten by the dog. Therefore, they remained incredulous that the man was defending the safety of he or his child.
To surmount these obstacles, the Defense attorney wished to validate the man’s claim that his actions were legitimate and were intended solely to defend he and his child from the ferocious dog. Consequently, he had the judge approve an appointment for a CPT expert.
CPT expert Mark Spivak reviewed the physical evidence and all witness statements. The expert then authored a written report.
In the report, the expert opined that it is highly probable the dog was friendly to the Defendant while he conducted caretaking duties, but defensively aggressive while the Defendant argued with the dog’s owner. The report included footnotes to peer-reviewed scientific studies corroborating the plausibility.
To balance the scientific explanation, the report also included a germane analogy, where a homeowner is typically friendly when interacting with a neighbor, but exhibits defensive aggressive behavior if/when the neighbor threatens the man’s wife. Loyalty toward an intimate party combined with the perceived presence of a threat of harm to the party may catalyze defensive aggressive behavior. This phenomena is true regardless of whether the relevant species is a dog or a human. That is why in the statutory code of many states dogs are exempt from classification as vicious, dangerous, or potentially dangerous if a bite originates in defense of an owner. To further validate the man’s story, there was a photograph documenting what most probably was a minor dog bite injury upon the man’s leg.
The CPT expert also opined that in such a situation, if the event persisted the Defendant had reason to be fearful of more severe injury from the large Pit Bull dog. To further rationalize a fearful emotional state, the man knew of a prior incident when in a similar context the dog inflicted wounds upon a former boyfriend of his ex-girlfriend. The former boyfriend required emergency room treatment.
Nevertheless, CPT experts are advocates for the truth, rather than unprincipled, biased advocates for a client. Consequently, the CPT expert would not extend support to validating a rationale for opening a closed master bedroom door to shoot the dog with an assault rifle. Neither would the CPT expert provide rationale for shooting blindly through a closed guest bedroom door with an assault rifle.
The attorney asked the CPT expert to testify in Tallahassee, Florida, to which the CPT expert agreed. However, 2 weeks before the scheduled trial, the man accepted a plea deal for 10 years of incarceration.
Background: Service dogs assist persons with a disability. The definition of a service dog and a specific dog’s training and performance are focal to this case. In Michigan, the owner of a dance company was the victim in a car accident. An admittedly at-fault driver t-boned the dancer’s car in an intersection. The dancer/dance teacher/business […]
Service dogs assist persons with a disability. The definition of a service dog and a specific dog’s training and performance are focal to this case.
In Michigan, the owner of a dance company was the victim in a car accident. An admittedly at-fault driver t-boned the dancer’s car in an intersection.
The dancer/dance teacher/business owner claimed she resultantly suffered orthopedic injuries, recurring vertigo, headaches, and mental health deficits that constitute permanent disabilities. Allegedly, severe physical injuries created pain when walking and impaired her ability to dance at a high-level. Vertigo compromised her safety when dancing. Headaches and mental health issues caused emotional pain and panic episodes.
To mitigate the limitations and effects posed by her disabilities, the dancer elected to obtain a Golden Retriever and then educate the dog to become a service dog. To facilitate her objectives, she hired a private trainer, who used a combination of virtual instruction, private instruction, and small group instruction.
The at-fault driver’s insurance company disbelieved the dancer’s injury claims and the legitimacy of her canine remedy. Therefore, they refused to settle for an amount satisfying the dancer. Concomitantly, the frustrated dancer sued the at-fault driver and the driver’s auto insurance carrier.
In the Plaintiff’s claim for damages, she requested indemnification for the cost of her service dog and the associated training. However, the auto insurer had doubts regarding the verity of the dancer’s injuries, their severity, her need for a service dog, the legitimacy of private and group training as a modality for the dog’s education, and whether the dog’s current proficiency qualified it as a service animal. Therefore, the insurance company hired a CPT expert to consult on the case.
The CPT expert reviewed depositions, medical letters, social media posts, photographs, and videos forwarded by the insurer’s contracted counsel. Defense attorneys principally wished the CPT expert to answer several key questions.
Expert response to the preceding questions would determined whether the insurer refused to pay damages related to claimed service dog expenses or whether the insurer settled in good faith.
The American with Disabilities Act (ADA) provides the industry accepted definition for “service animals.” Title II and Title III of the ADA define a service animal as “any dog that is individually trained to do work or perform tasks for the benefit of a person with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”
Letters from medical doctors and therapists documented the physical and mental health injuries claimed by the Plaintiff. The letters also detailed a prognosis for each injury, including a probable duration. Thus, evidence supported the Plaintiff’s claim of multiple disabilities.
Per the ADA, the Plaintiff must suffer a disability for her dog to satisfy the definition of a “service animal.” Thus, the primary remaining factor pertinent to Question 1 was whether the dog did work or performed tasks related to the Plaintiff’s disabilities.
Due to cost, the insurer decided against deposing the Plaintiff’s doctors. Therefore, the referenced letters provided the exclusive source of professional medical opinion.
However, the defense deposed the dog’s trainer and the Plaintiff. When deposed, the dog’s trainer and the Plaintiff discussed the dog’s education. Moreover, they provided compatible answers, without inconsistencies. They listed multiple task behaviors within the dog’s lesson plan. They disclosed the dog’s stage of training and competence related to each task. And they explained each task’s relevance to a specific disability claimed by the Plaintiff.
Nevertheless, the CPT expert did not wish to incontrovertibly trust the depositions. People are prone to fraud, misstatement, and exaggeration. Consequently, doubt remains unless physical evidence confirms verbal or written testimony.
To resolve doubt, the CPT expert next viewed still and video images of the Golden Retriever’s training and practical performance. Ouch! The photographs and video were highly compelling- for the Plaintiff.
Photographic and video evidence confirmed the dog’s competent performance of several psychiatric task behaviors. The Golden Retriever calmly and proficiently performed “deep pressure therapy.” Deep pressure therapy (DPT) appears deceptively simple. It is the dog laying atop a seated or reclined recipient for an extended period. Yet, despite the apparent simplicity, the behavior can produce a remarkable calming effect upon an anxious or distressed person. Moreover, only a minority of dogs possess the temperament and training to competently execute the behavior for the required duration.
The Golden Retriever also proficiently performed a “stand-lean.” In a stand-lean, the dog consciously remains stationary, while leaning into the leg of the recipient. Recipients then commence tactile contact upon the dog’s head or spine. The combined canine lean and human manual contact can powerfully relax an otherwise distressed person.
Until receiving an explanation from the CPT expert, the attorney was unaware the preceding behaviors were industry accepted task behaviors. Nor was the attorney aware the behaviors fell within the scope and spirit of the ADA definition for service dog work.
Moreover, the CPT expert advised defense counsel that in CFRs and TMs the Department of Justice has ruled that a service dog’s task need not be necessary. The code only requires that the task be related to the recipient’s disability. Furthermore, the task does not have to be unique, whereby no other solution accomplishes the same objectives. All that matters is whether the task mitigates the limitations and effects of the disability.
Elaborating further, the ADA does not establish registration, certification, or competency requirements for a dog to satisfy the definition of “service animal.” Nevertheless, the dog must be more than an emotional support animal, where benefit is obtained via the dog’s mere presence. The dog must perform at least one task behavior specific to the recipient’s disability. Yet, the depositions and images documented that the dog in question fulfilled the ADA requirements.
Thus, the answer to Question 1 is “yes, the dog is a legitimate service animal.” Likewise, the first part of the answer to Question 2 is “medical evidence supports the existence of the Plaintiff’s claimed disabilities.” Moreover, there is no evidence dispelling the Plaintiff’s claims. The answer to the second consideration for Question 2 is “the dog perform tasks related to the claimant’s disabilities.” Similarly, the answer to Question 3 is “evidence supports the dog’s competence in its service dog role.” Furthermore, competence is not requisite or defined within the ADA specifications.
In summary, unfortunately for the defendant’s insurer, CPT expert Mark Spivak concluded evidence overwhelmingly supported the Plaintiff’s (dancer’s) position.
Consequently, from the standpoint of defining the dog as a service animal versus a standard pet or emotional support animal, the CPT expert could not ethically agree with the defense counsel’s position. Thus, in the CPT expert’s opinion, purchase, training, and maintenance costs for the dog were most likely recoverable as part of indemnification for the injured party’s overall medical costs.
CPT experts are highly competent and objective. If we agree with counsel’s position, we will vehemently and passionately assist the attorney in obtaining justice for the client.
However, if facts lead otherwise, we will provide a detailed, forthright, unbiased response regarding weaknesses to the case, while recommending that CPT’s role be limited to “consultant.” Thereby, CPT’s work product is not disclosable to opposing counsel.
Integrity is important to CPT experts. Furthermore, we believe such honesty is in the best interests of the hiring attorney, as then the attorney is less likely to spend time and money protracting a case that he/she has a low probability of winning.
Background: In Washington state, CPT expert Mark Spivak provided consulting services for a criminal defense attorney whose client was charged with larceny based on the tracking and scent discrimination actions of a police K9 dog. A K9 officer started his dog at the location of a burglary, whereupon the dog allegedly tracked ground scent […]
In Washington state, CPT expert Mark Spivak provided consulting services for a criminal defense attorney whose client was charged with larceny based on the tracking and scent discrimination actions of a police K9 dog. A K9 officer started his dog at the location of a burglary, whereupon the dog allegedly tracked ground scent through a variety of surfaces until locating the defendant. I wrote “allegedly,” as the officer did not turn on his body cam to video the track.
The defense attorney needed to learn more about the biological and procedural operation of tracking/trailing dogs. He also wished advisement regarding what evidence to request in a demand for discovery.
The resultant demand included requests for:
a) policy manuals and regulations regarding the training and handling of K9 dogs;
b) certifications obtained by the dog and handler;
c) results from K9 certification tests;
d) detailed K9 training logs covering a specified 6-month period;
e) field logs reporting on the actual use of the dog for scent discrimination purposes and detailing the dog’s mission and outcome (i.e., person found, track abandoned, positive alert for drugs, no alert, contraband found, no contraband found, et al.);
f) disciplinary records for the dog and handler;
g) body camera and/or car cam video;
h) police reports; i) witness statements;
j) reports regarding physical evidence acquisition and analysis; and
k) veterinary records for the dog.
There are two main considerations regarding canine olfaction. First, the dog’s biological ability to detect a target odor. Second, the dog’s cognitive ability to accurately identify and discriminate the target odor.
Many environmental variables can affect biological factors. Pertinent environmental variables in a tracking situation include temperature, humidity, wind strength, wind direction, ground substrate type, the smoothness or hilliness of terrain, cross tracks, initial odor strength, odor duration, and odor degradation. Germane cognitive factors include training history, experience in similar environmental conditions, historical accuracy in similar environmental conditions, experience with similar odor origins and types, and historical accuracy with similar odor origins, types, and conditions.