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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, writing convincing affidavits, and testifying on behalf of clients while working closely in conjunction with the client’s attorney.

 

How An Expert In Animal Behavior and Training
Can Assist An Attorney

CIVIL

  • Dog bite injuries
  • Homeowner-victim claims regarding person or property
    • Dog to person
    • Dog to dog
  • Landlord-tenant issues
  • Seller-purchaser contract issues
  • Service performance issues
  • Negligence issues
  • Questions of provocation

CRIMINAL

  • Zoning violations
    • (habitats, breed specific ordinances)
  • Animal control violations
    • (barking, dog at large, nuisance complaints)
    • (scratching, biting, quarantine)
    • (vicious animal hearings)
  • Misdemeanors and felonies
    • Assault
    • Battery

 

Case Examples of How CPT Expert
Witness Services Have Helped Clients

 

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 is daughter. However, the neighbor’s insurance company refused to budge from an inequitably low initial offer that covered only existing and anticipated actual damages.

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 or the following case in Florida.

 

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 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 effects of the disability and/or the limitations 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 on 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 Case of the Poorly Bred Puppy

CPT provided expert 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 has 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 CPT 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 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’s position and raised more than reasonable doubt that injuries to the child were originated by the family dog- not a human, as initially alleged by the state. CPT’s research and resultant affidavit were essential in having the charges dismissed and the child returned home to his parents.

 

The Case of the Slipping and Falling Knee Injury

CPT recently 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 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 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 the client was found not guilty of all charges.

 

The Case of the Falcon and the Dog

CPT provided an 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 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 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 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 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 attorney, a CPT expert 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 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 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.