Berman: Defending dog-bite cases: An expert’s view

Dog bites continue to be a growing problem in the United States, both in the number of incidents and the seriousness of the victims’ injuries. The U.S. Post Office reports that there are approximately 4.5 million dog bites per year.

Dog bites happen everywhere dogs and people cohabitate, and they happen for many different reasons. There are many questions that need to be answered, and although there are patterns in every dog bite incident, no two incidents are the same.

Basics

The dog’s veterinary records are a treasure trove of information: the dog’s breed, age, weight relative to the time of the incident and, most importantly, behavioral history. Often included in the dog’s records are notes regarding any incidents of dog-on-human or dog-on-dog aggression that the owner reported to the veterinarian or the veterinary staff.

Although many attorneys know to subpoena the vet records, they do not specifically ask for the doctor’s handwritten notes. Veterinarians usually handwrite notes like, “be careful,” “watch out,” “will bite” — often in red ink — as a precaution to staff.

It is also important to get the veterinary records for all the dogs present at an incident because often, the dog that appears to be the victim has a history of aggression.

Bite wounds

To an experienced and trained eye, bite wounds can often show which dog bit the plaintiff (in multidog incidents), whether the dog was provoked or if the dog bit without provocation, whether it was a serious attack, etc. Scratches usually follow certain patterns, but there are cases in which determining whether the injury was made by teeth or claws is not so easy. Hopefully the treating physician did their due diligence and measured the length and thickness of the plaintiff’s wounds, as well as diagramed the locations of the bite marks.

Often, a mention of bite marks on a medical record relates to one bite with several teeth involved but is mistakenly interpreted as multiple bites. The number, depth and placement of the bites says a lot about the dog’s state and intention. Bites to the stomach, chest or anywhere to the center of mass are more concerning than bites to an arm or leg. Domesticated dogs do not commonly bite humans in those parts of the body; those wounds fit more with predatory aggression.

All of the above are extremely important when investigating a dog bite and determining the evidence that supports or conflicts with a plaintiff’s account of the incident. A perfect example of this is with bites to the face. The plaintiff will state that the dog jumped up and bit them, but that is almost never the case; those incidents are almost always provoked by a plaintiff who thinks that because they love the dog, the dog loves them back. The wounds on their face are evidence that they were wrong.

Photos of the bite wounds after the plaintiff has been treated by emergency medical personnel often have only limited value because the actual wounds have typically been altered, in essence destroying valuable evidence. On the other hand, pretreatment photos can tell a powerful story, as they portray what actually happened.

Witnesses

It is important to note that although professional investigators can be excellent at their jobs, they also carry with them a formality and effect that can cause potential witnesses to want to back away from participation. Also, even if the investigator gets a statement, that statement may be hearsay.

But if your expert is first contact, it is much more likely that the witness will feel more comfortable talking to them. The important thing is that your expert gets to ask the correct questions, in the correct order, at the correct time. Your investigator doesn’t have the background and experience to do that, and a vital first encounter with a potential witness may be left mostly unusable.

The dog

It is always important to have the dog evaluated and inspected by your expert, as an evaluation video can win your case for you. The rule of thumb is that aggressive, dangerous and/or vicious dogs almost always act aggressively in evaluations. Your client may tell you how wonderful their dog is, but they will rarely tell you the truth.

Any dog behavioral evaluation has to be planned carefully so as not to give the opposing counsel opportunities to attack the results. Time of day, place, people present, distractions and many other things need to be controlled so that the environment is not too far removed from the actual incident.

Breeds

All dogs are individuals within a breed, and breed alone is not a clear predictor of aggression. The American dog-loving public has changed since the early 1980s, when pit bulls were found mostly in the inner city.

It is always important to focus on the individual dog with evidence based on previous behavior. Breed, size, age, sex, exercise and socialization, to name a few, are merely factors, each carrying minimal weight on its own but telling a convincing story as part of a whole.

Owners

As a forensic expert who has served in nearly 1,000 legal cases, I can attest to certain patterns in the owners of aggressive, dangerous and/or vicious dogs. One is what can be called “owner denial,” which describes an emotional state in which the owner is either unable or unwilling to see their dog as it really is.

I had two dog training clients, each of whose dogs had bitten or attacked 16 people before they contacted a canine professional. They each had very detailed reasons as to why each bite their dog delivered was reasonable under the circumstances. Surprisingly, neither were ever sued.

Recently, I heard from a man who wanted my help with his dog, a recently rescued Saint Bernard who had bitten his daughter twice and wasn’t good with toddlers. He said he didn’t want to give up on his dog until things could be sorted out, so his daughter and the dog were separated in the house. The fact that his very large dog had bitten his 18-year-old daughter on two occasions, unprovoked, and was aggressive to young children didn’t dawn on him as a dangerous situation.

Medical records

Plaintiffs have been known to give different narratives about the incident based on where they were and when they said it. In more than a few cases, while going through a tedious amount of medical records, I found doctor’s notes stating that the patient himself had told the doctor a completely different story regarding how the incident happened — one that clearly showed the plaintiff had provoked the dog.

Summary

Like any complex case, dog bites require knowledge and expertise to litigate well. Most plaintiff attorneys have told me they do one to two dog bite cases every five years — certainly not enough to become an expert in handling them. This article will hopefully give you a deeper view of some of the surface knowledge you need to be successful in dog bites and pet-related injury cases.•

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Ron Berman is a dog trainer, canine behavioral consultant and forensic expert. His website is www.dogbite-expert.com. He can be reached at [email protected]. Opinions expressed are those of the author.