Daubert criteria are rarely applied in dog bite civil cases. Unfortunately, as a canine dog bite expert witness, this is the opinion I have formed after many years testifying at trial in dog bite litigation.
My experiences been that trial judges usually fail to apply these criteria when ruling on the kind of animal behavior evidence that jurors should consider at trial. As a result, a lot of nonsense about dog behavior and dog aggression as a relates to liability is allowed into evidence. And this nonsense is almost always propagated by so-called canine dog bite experts who lack training in the science of animal behavior.
I have opposed these wannabe animal behaviorists in California on many occasions. These wannabe animal behaviorist usually lack any training in the science of animal behavior. The lack of such training compromises the competence of these so-called “experts”. These so-called experts will tell an attorney anything they feel the attorney wants to hear to get the assignment. And attorneys, sometimes in a rush to retain a dog behavior expert will often take the bait.
Why animal behavior science?
Knowledge about the fundamentals of animal behavior science is absolutely necessary for an expert to render competent analysis in dog bite litigation. I have discussed the reasons for this elsewhere on this website. In short, animal behavior science dictates that explanations of dog behavior cannot be made using anthropomorphic reasoning. Rather, opinions must be based on observable behavior about the dog or the victim involved in an incident. In short, animal behavior science provides the foundation for the understanding the variables that affect observable behavior and how observable behavior may impact liability issues in any given case.
- Animal behavior is an established scientific discipline and properly qualified animal behaviorists exist to render an expert opinion. Animal behavior is a multidiscipline, observational science taught at nearly every major university in the world. Animal behavior science has become increasingly technical in nature, and advanced degrees are offered in this field. Many academic, peer-reviewed journals dedicate themselves to original research in animal behavior, including research about canine behavior and dog aggression. Various certification programs are available to canine behavioral scientists. The qualifications of a dog bite expert lacking certification in animal behavior surely need to be questioned. I know of dog bite experts who misleadingly present themselves and dups attorneys into believing that they are “certified”, but certified in what? The certification of these self-proclaimed dog bite experts is not in the field of animal behavior!
- The methods used in animal behavior are reliable and can be used to formulate an opinion about legal issues such as liability and negligence. Specifically, the science is concerned with an objective description in terms of what an animal does, and the multitude of variables that affect overt behavior, and not what the dog is thinking or how the dog is feeling. Data in the science is collected through a variety of means, which include interview techniques, surveys, behavioral rating scales, video and audio analysis, and blood, urine, neurological and genetic analysis. The methods used in the science are no different from the methods the applied animal behaviorist has at his disposal to analyze a dog involved in a dog bite incident.
- Principles and findings developed in animal behavior can be applied to the actions of a dog in any given dog bite case. Moreover, these principles and findings would be shared by the majority of animal behaviorists. Opinions understandably can differ amongst experts, however. Specifically, some broad sweeping generalizations from the science of animal behavior would indicate that: (a) Aggressive behavior in dogs can become habitual and is affected by contextual variables, learning experiences and reinforcement history; (b) Owner behavior has a marked influence on the behavior of companion dogs; (c) A dog’s temperament in part is affected by breed characteristics and past experiences, and is predictive of future behavior in a given set of circumstances; (d) Aggression in dogs is patterned and has predictable sequences when directed towards a human.
- Information derived from the observations of witnesses, and owner descriptions about the behavioral and medical history of the dog and how the dog was maintained, provide sufficient information for the animal behavior expert to render credible and scientifically based opinions, provided that these observations are consistent with animal behavior theory.
Concluding thoughts
Animal behavior expert opinions rendered by the canine behaviorist will can be proffered with a low error rate provided:
- The expert has a scientific background in canine behavior which in turn allows the expert to apply findings from the academic literature to real-world situations;
- The expert has collected a sufficient amount of discovery about the dog from reliable sources or verified temperamental testing procedures.
More about Daubert
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
- What is the Daubert standard?
- Frye admissibility standards: does the standard of admissibility in state court make any difference in practice?
- Frye standard – Wikipedia page
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Richard Polsky, Ph.D. is a canine bite expert witness located in Los Angeles, CA. Dr. Polsky provides expert witness services to attorneys handling personal injury caused by dogs. Contact information can be found here.
