Expert Witness Services
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; strategizing; assisting attorneys in the construction of interrogatory, deposition, and trial questions; writing convincing affidavits; and comfortably communicating compelling trial and deposition testimony.
How An Expert In Animal Behavior and Training
Can Assist An Attorney
- Dog bite injuries
- Homeowner-victim claims regarding person or property
- Landlord-tenant issues
- Seller-purchaser contract issues
- Service performance issues
- Negligence issues
- Questions of provocation
- Zoning violations
- (habitats, breed specific ordinances)
- Animal control violations
- (barking, dog at large, nuisance complaints)
- (scratching, biting, quarantine)
- (vicious animal hearings)
- Misdemeanors and felonies
- Motions to Suppress (analysis of K9 handler or dog behavior)
Case Examples of How CPT Expert
Witness Services Have Helped Clients
The Case of Was it Murder? Or Merely an Accident?
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 Case of the Mangled Arm
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.
The Case of Is He Just a Pit Bull or is He Also a Service Dog
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.
The Case of the Mangled Leg
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.
Nevertheless, by utilizing case files, transcripts, interviews with witnesses, and interviews with neighbors combined with a thorough review of pertinent statutory law, case precedent, statistical data, and animal behavior research, a CPT expert analysis and concomitant affidavit was able to convincingly support the client’s/Plaintiff’s arguments that:
1) Based on two acknowledged unreported bites, the Defendant had prior knowledge (scienter) of the dog’s unprovoked aggressive behavior,
2) The Defendant was aware of the dog’s known propensity to behave aggressively toward neighbor children,
3) The Defendant failed to exercise due diligence to protect the public,
4) Chaining the dog increased the probability that the dog would act upon its known aggressive propensities,
5) The Defendant’s actions were legally negligent- since information was readily available in the public domain that chaining increased the probability of aggressive behavior- similarly, information was available in the public domain that many counties and municipalities had concomitantly statutorily prohibited chaining due to the risk chaining presented to the public,
6) The chained dog potentially posed an attractive nuisance to the young child,
7) There is information in the public domain that German Shepherds and German Shepherd Mixes, in comparison to the average domestic dog breed, have a higher probability of acting aggressively and a higher probability of inflicting severe or lethal bites,
8) Lack of proper care on the part of the Defendant could have contributed to the dog’s aggressive propensities,
9) The Defendant was aware that neighbor children frequently used the disputed common area,
10) The Defendant should have been aware that the length of the dog’s chain allowed the dog to have contact with children who frequently walked or ran within the disputed area,
11) Shrubbery between the undisputed private property of the defendant and the disputed common area obstructed the small child’s view of the dog and created a hidden trap,
12) “Beware of Dog” signage was not conspicuously placed where it was visible to a child using the common area,
13) Georgia civil case precedent has determined that a young child is considered unaware of the concept of trespass,
14) The shrubbery may have heightened the dog’s territorial aggressive behavior,
15) The child running may have heightened the dog’s barrier frustration, territoriality, and/or predatory aggressive behavior,
16) The Defendant failed to reduce exposure to known potential risks by properly confining the dog,
17) The Defendant failed to reduce risks by commencing any form of obedience or behavioral training, and
18) The size, depth, and severity of the bite did not correspond to the level of threat rationally posed by the child and was the maladaptive act of an unstable, poorly managed dog.
Consequently, the previously intractable insurance company attorneys agreed to substantially increase their settlement offer. Shortly thereafter, the case settled favorably for our client.
The Custody Dispute
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.
Probably and Probably Not Probable Cause- A Legitimate and Illegitimate Interior Vehicle Search Based Upon Exterior Police K-9 Activity
CPT provided expert witness consultation in one case and testimony in a second case, where both cases involved the legality of interior vehicle searches based upon the behavior of police K-9s. 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 that 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 that the client’s actions were “erratic,” which provided him probable cause 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.
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 proceed 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 that 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 ever produced a meter that verifies window tint levels. During the interrogation, the driver responded with some answers that were slightly different from those of the passenger. The officer stated that the disparity in responses and the lack of cooperation of the driver provided him probable cause 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 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 that the dog’s behavior clearly indicated that there was narcotics in the vehicle, which provided him probable cause to initiate an interior search of the vehicle. 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 that contained 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 properly and improperly during 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 whereby he commenced an interior search, and the percentage of interior searches that resulted in the acquisition of illegal narcotics. In addition, the expert used his days in the semiconductor industry to recommended that a chemist skilled in gas chromatography 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 temperature would encourage upward air flow away from the dog. However, there was insufficient time before the scheduled hearing to produce the latter expert requests.
During the hearing, the CPT expert was qualified by the judge after voir dire. He then testified that the search was highly biased by a number of confounds:
• First, the handler inappropriately allowed the scent of the ball to freshly gather underneath the driver-side rear wheel well, which presented ambiguity as to whether it was the smell of narcotics or the smell of the ball that prompted the dog to briefly move underneath the well.
• Second, the handler’s physical pointing and leading biased the dog, as ideally the dog would work independent of handler direction or cues, where the scent or lack thereof would guide the dog.
• Third, the handler’s verbal encouragement biased the dog, as ideally the dog would focus principally on task, not on handler approval or disapproval.
• Fourth, the significant leash correction that forcibly moved the dog underneath the bed biased the dog’s behavior, as it created question whether any subsequent action was to avoid punishment, rather than an alert to a detected target odor.
• Fifth, the increase in the dog’s respiration and physical activity was likely due to handler encouragement, the sight and smell of the ball, and the heat, not to the detection of a target odor.
• Sixth, the dog moving underneath the wheel well initially, in addition to the scent of the ball, may have been to escape the heat.
• Seventh, and most significantly, in every training session reviewed over the recent 6-month period the dog had one recognized alert behavior, sit, and during the client traffic stop the dog never sat.
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 susceptible to police handler cues. In the research, police handlers were provided misinformation that drugs were planted in a movie theater 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 allows for a number of indication behaviors that can be effectively interpreted by educated handlers. Therefore, although sit may be the preferred alert behavior, 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 a sit. Moreover, the subsequent acquisition of a substantial quantity of illegal narcotics verifies such on the day in question.
Although the CPT expert believes to this day that the State expert’s testimony is a huge stretch of the truth, the Defense case always had three 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, and 3) a conflict of interest regarding civil asset forfeiture laws that financially enrich the State. Regardless, perhaps with a judge more open-minded to the application of 4th and 14th Amendment rights the outcome would have been different.
The Case of the Service Dog Denied Passage
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.
1. In depositions, the Plaintiff stated that during her initial conversation with the ticket agent she never communicated the nature of her disability, only that her dog was a service dog.
2. There are a myriad of “invisible disabilities” other than mental health disabilities, including epilepsy, hypokalemic periodic paralysis, neurocardiogenic syncope, narcolepsy, postural orthopedic tachycardia syndrome, Ehlers-Danlos syndrome, lupus erythematosus, autism, diabetes, and severe allergic responses, of which CPT has trained service dogs for all, except diabetes and allergy detection.
3. The Plaintiff met the definition of disabled as stipulated by the Americans with Disabilities Act (ADA), as she suffered both a TBI and PTSD from her experiences in the wartime theater.
4. Given that the majority of pertinent interactions with the Plaintiff were in a public area prior to the onset of airport security, the ADA applied, not the Air Carrier Access Act (ACAA). Thus, the Defendant, American Airlines, owed the Plaintiff duties of care mandated within the ADA.
5. The ADA does not allow owners, landlords, tenants, supervisors, or agents of property to inquire about the specific nature of a person’s disability. According to Title II of the ADA only two “inquiries” are allowed. First, the representative may ask “if the animal is required because of a disability.” Second, the representative may ask “what work or task the animal has been trained to perform.” The representative may not ask about the “nature or extent” of the disability, and “shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal.” Furthermore, “generally, a public accommodation may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability.”
6. In Title II of the ADA, under “surcharges,” the law clearly states “a public accommodation shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees.”
7. The treatment the Defendant provided the Plaintiff violated provisions required of commercial facilities and personnel as stipulated within Title II of the ADA.
8. The service dog was well behaved throughout the Plaintiff’s ordeal at the airport. The expert’s assessment was confirmed by hours of video, which unfortunately was absent of audio.
9. The service dog passed industry validated evaluations provided by the expert, including the CGC Test and the ADI Public Access Test. Furthermore, the Plaintiff demonstrated the dog’s assistance behavior that mitigated the limitations and effects posed by her disability. The dog passed the Assistance Behavior Test both in a private residential environment and a public environment. Thus, the dog met the ADA definition for a service animal.
10. The Plaintiff satisfied the ADA definition of “disability”- “a physical or mental impairment that substantially limits one or more of the major life activities of such individual”- and the ADA definition of “physical or mental impairment.” Furthermore, the Plaintiff produced a letter from the Department of Veterans Affairs that clearly stated she has a service-connected disability, is 40% disabled, and receives a monthly award amount.
11. An analysis of the ADA Title II and Title III definition of a “service animal”- “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability… The work or tasks performed by a service animal must be directly related to the individual’s disability… Examples of work or tasks include… helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.”- concluded that the Plaintiff’s dog met all requirements.
12. A review of the definition of “commercial facility” within Title II of the ADA concluded that the ticket counter of the airport terminal by definition was a commercial facility that falls within the aegis of the ADA, not the ACAA.
13. The Plaintiff’s service animal was always in-control, properly leashed, and wore an appropriate identification vest. There was no evidence that should lead a reasonable person to believe that the dog was not a legitimate service animal or that the animal’s behavior warranted denial of admission to board an aircraft.
14. American’s staff tried very hard to coerce the Plaintiff into paying a fee to transport her service dog in cargo, which was a clear violation of federal law.
15. There were a large number of prior consumer complaints alleging that poorly trained or supervised American Airlines employees mistreated persons with disabilities.
16. American Airlines’ website duplicates the code of the ACAA, where agents are supposed to make a determination of a service animal based upon “the credible verbal assurance of a qualified individual with a disability” and the “presence of a harness, tags, and/or identification cards or other written documents.” The Plaintiff satisfied the requirements, yet was mistreated and had her civil rights violated by an intransigent ticket agent.
17. The Defendant claimed the ACAA applied even in the commercial facility of the ticket counter, which was prior to the entrance of terminal security. The application of law is pertinent. The ADA does not separate psychiatric service dogs from the category of “service animals,” although the ADA specifically excludes emotional support animals (ESAs). In contrast, the ACAA categorizes psychiatric service animals as ESAs. Thus, the ACAA allows an airline to require documentation (the letter described previously) for passengers with mental health disabilities, regardless of whether their accompanying animal is a trained service dog as defined by the ADA or an ESA that provides benefit by its mere presence. On the other hand, the ACAA would not allow the carrier to require documentation for any other form of disability, provided there was credible verbal assurance and the presence of identification, as described above. In addition to the CPT Expert argument that the ADA applied at the ticket counter, CPT’s responded to the Defense claim that the ACCA was the presiding law. CPT stated that there was credible assurance that the dog was a service animal, no identification of the nature of the disability by the Plaintiff, and no valid reason for the ticket agent to assume that the dog was not a legitimate service animal. Moreover, the ticket agent should have been trained and aware that there are many forms of “invisible disability” that may typically remain inapparent. Yet, the ticket agent harassed the Plaintiff by accusing her of trying to transport a pet as a service dog and by attempting to force her to pay a surcharge, a salient violation of federal law governing treatment of the disabled, regardless of whether the ADA or ACAA applied.
18. CFRs explain that the spirit of the advance notice provision within the ACAA is to ensure that environmental conditions are suitable for travel with a service dog. Although the ACAA permits an airline to require 48 hours notice, such notice is not mandated within the ACAA. Therefore, even if the ACAA was applicable, which it would have been beyond security, if there was no valid environmental constraint that should deny boarding due to reasons of health and safety for persons or the animal, then the airline’s actions defy the spirit of the law, which ironically is to enhance customer service.
19. Even within the ACAA, the requirement of documentation for a psychiatric service dog or ESA is not mandated, although it is allowed. Moreover, CFRs deter airlines from requiring documentation if there is credible verbal and visual assurance that the dog is a legitimate service animal or ESA. The Plaintiff provided verbal assurance and the dog was well behaved. Therefore, in the spirit of the law the ticket agent should not have requested documentation. Furthermore, the letter produced on the second day fulfilled all documentation requirements, except it lacked a date and a date of licensure. Also of importance, the letterhead of the document was VA letterhead.
20. The Plaintiff stated she is a military veteran and produced documentation proving such. Moreover, it is common knowledge that many veterans have mental health disabilities. Yet, on the first two occasions the ticket agent refuted the legitimacy of her disability and her dog was denied passage in the cabin. This is not an appropriate way to treat a military veteran or a disabled non-veteran.
21. Forcing the dog to fly in cargo, apart from the Plaintiff, raised the probability of the Plaintiff experiencing a panic episode, which would have been potentially damaging to the Plaintiff and disruptive to all persons aboard the flight.
22. Lastly, the airline staff’s actions at the gate upon arrival clearly constituted harassment and appeared to occur with malice.
The CPT Expert Witness Report along with conjunctive conversations discussing negotiation strategy, case strengths, and case weaknesses were key to the Plaintiff receiving a satisfactory outcome prior to trial. Nevertheless, we were prepared to go to trial if the Defendant refused to submit a satisfactory settlement offer, as we believed a jury would be very empathetic to the plight experienced by the Plaintiff.
The Case of the Board that Went Bad
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: 1) the lack of evidence of prior out of context aggressive behavior on the part of any of the dogs while under the care or supervision of the Defendant or his family, 2) the Plaintiff’s employer’s previous experience caring for the dogs in both a veterinary and boarding capacity, 3) the evidence of a possibly aggressive event that occurred during a previous board at the employer site where the boarding caretaker failed to verbally inform the Plaintiff, her employer, or co-workers or to enter pertinent information onto a chart or computer database, 4) the Defendant’s lack of scienter regarding how his dogs behaved in a boarding environment, 5) the employer and Plaintiff’s superior knowledge regarding how the Defendant’s dogs behaved while boarded and how dogs in general behave when boarded, 6) the employer’s and Plaintiff’s failure to exercise due diligence by verbally or in writing asking questions of the Plaintiff regarding the dogs’ behavioral history, 7) the fact that the situation was a voluntary bailment for hire, whereby the Plaintiff and her employer owed the Defendant beyond a standard duty of care, 8) the mismanagement of the boarding situation by allowing all 3 defendant dogs out simultaneously with the petite Plaintiff as the sole human caretaker, which constituted one of several breaches of the duty of care, 9) the inadequate education in canine behavior received by the Plaintiff either from her employer or on self-initiative, 10) the fact that the employer was a licensed veterinarian, who should have had knowledge regarding the proper care of animals in a boarding environment, the interpretation of canine body language, and factors that may increase environmental stress and concomitant aggression, 11) the fact that the Plaintiff was employed in a professional position that required knowledge regarding animal husbandry and behavior, 12) the Plaintiff’s inability to properly interpret canine body language on the day in question and to perceive the dogs as anxious and stressed, and 13) the Plaintiff’s inappropriate harsh verbal response to jumping behavior that likely provoked the event.
The Plaintiff sued for the amount of $1 million, citing actual medical damages, psychological damages, pain and suffering, physical disfigurement, and lost wages. Although CPT believed the Defense arguments were much stronger than the Plaintiff’s position, whereby the case was likely winnable at trial, the Defendant’s homeowner’s insurance company elected to settle for an amount significantly below the policy limits.
The Case of When the Pitcher Hits the Stone
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:
1) In her deposition, the Defendant admitted to knowing that motorcycles travel on her road “all the time.”
2) The Defendant admitted to purposefully allowing her Australian Shepherd and a companion Australian Cattle Dog to run free and unsupervised when she left the property, even though she had facilities to house or pen the dogs.
3) The Defendant admitted that she knew her dogs entered the roadway while loose and unsupervised.The Defendant was quoted as saying, “I mean they got free will. They can go wherever they want.” Depositions of neighbors corroborated that the dogs entered the roadway.
4) In the expert’s 26 years of professional experience, Australian Shepherds were one of the breeds most likely to require behavior modification training for predatory or territorial vehicle chasing. The expert also produced written materials from 10 reliable industry authorities, where the opinions concurred with the experiences and opinions of the expert. In addition, the expert produced excerpts from notable peer-reviewed scientific research where the conclusions of the studies validated the opinions of the expert and the industry authorities.
5) In addition to being a pet owner, the Defendant admitted to being an Australian Shepherd and Australian Cattle Dog breeder for 20 years. In her deposition, she stated she, “has read manuals, publications, books, and articles about the breed.” She also described knowledge of the breed’s herding predilections, commenting that, “They more herd from the front than the back.” Interestingly, the dog contacted the front tire of the motorcycle.
6) The Defendant admitted to knowledge that her Australian Cattle Dog was accused of injuring a motorcyclist 5 months prior to the Plaintiff’s incident.
7) The Defendant foresaw or should have foreseen the likelihood of her Australian Shepherd crossing the property boundaries, entering the roadway, and/or chasing a motor vehicle. Moreover, in the opinion of the CPT expert, “the unreasonable and imprudent election on the part of the Defendant to allow her dogs to run free constituted a violation of a duty of care she was obligated to provide as a pet owner and a community citizen, which further perhaps progressed beyond the point of carelessness and ordinary negligence to a level where it meets the definition of ‘reckless behavior,’ especially given her knowledge of the previous injurious event and fact that the ability to safely confine her dogs was simple and readily available.”
8) The Defendant admitted to knowing that impact with a motorcycle traveling at 45 mph could cause serious injury to the motorcyclist.
9) There was no compensatory or contributory negligence on the part of the Plaintiff. She was an experienced motorcycle operator. She had never previously been involved in a motor vehicle accident, either while operating a car or a motorcycle. She had ridden previously with the same riders, in the same formation, without incident or injury. She was driving at a safe speed. She was not under the influence of alcohol, illegal narcotics, or prescription medication. She was deemed not at fault by the investigating state trooper.
10) To further substantiate the lack of culpability of the Plaintiff, although the weather was clear, an aroused Australian Shepherd dog can travel between 25 – 30 mph, which gives little time for a motorcyclist traveling 40 mph to successfully undertake evasive maneuvers that avoids collision with a canine traveling quickly in a perpendicular direction. In this regard, the expert cited experiences in protection sports, where dogs move very quickly toward people who may try to avoid impact.
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.
The Case of the Baby that Lost His Nose
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.
The Case of Good Intentions Gone Bad
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.
The Case of the Punctured Ball
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.
The Case of the Poorly Bred Puppy
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.
The Case of the Police Dog and the Fleeing Suspect
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.
The Case of the Zoning Inspector that Needed Glasses
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.
The Case of DFACS Not Having the Facts
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.
The Case of the Slipping and Falling Knee Injury
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.
The Case of the Falsely Accused
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.
The Case of the Falcon and the Dog
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.
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.
Consequently, the Gwinnett County District Attorney’s office dismissed all charges prior to the date of trial.
The Case of the Police Dog and Probable Cause
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.
The Case of What is He and Is He Aggressive
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.
The Case of the Pit Bull that Wasn’t
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 Case of the Provoked Dog
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.
The Case of the “Vicious” Dog that Only Wanted to Make a New Friend
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.
The Case of the Out of Control POA With an Axe to Grind
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.