Dogs are wonderful companions that we as humans have become veryfond of. There are approximately 68 million dogs in the U.S.,making pets and pet products a very big business. Living with a doghas been shown to benefit children, adults, and senior citizensboth physically and emotionally. At the same time, however,according to the Centers for Disease Control and Prevention (CDC),every year more than 4.7 million people are bitten by dogs,resulting in an estimated 800,000 injuries that require medicalattention.

The latest numbers available show that dog bites are anincreasing problem for carriers. According to the InsuranceInformation Institute (I.I.I.), claims related to dog bites cost the insurance industry $317 million in 2005 and$356.2 million in 2007, a significant increase.

As a result, insurers may increase premiums and in many casesexcludespecific breeds like rottweilers, German shepherds, and pitbulls from coverage altogether. A total of 32 states haveinstituted a dog bite statute that makes the owner “strictly”liable for any injury or property damage their dog causes.Depending on the state, the defense may have to prove that thevictim provoked the dog in order to minimize or even escapeliability. The only other defenses are that the victim wastrespassing or that the defendant is not in fact the owner orcaretaker of the dog.

Here is some insight into the discovery process as it relatesspecifically to dog bites and other pet-related injuries, includingeight common ways insurance professionals may miss vital evidencethat can have a profound effect on the outcome of their case.

Mistake #1: Not Evaluating the Dog

A video presentation of the defendant's dog is possibly the mostpowerful evidence to determine if the dog has dangerous or viciouspropensities. If the dog is displays aggression during aprofessional evaluation, each member of the jury will get to fullyexperience that behavior at trial. Having this knowledge will helpthe adjuster in several ways. First, if the defendant claims thathis or her dog is not aggressive, then it diminishes the insured'scredibility and affords a more realistic evaluation of thecase.

Second, the adjuster has the opportunity to experience theplaintiff's most damaging evidence against their insured which maylead to an early settlement. On the other hand, if the dog is shownto truly be non-aggressive, then a powerful piece of evidence inopposition to the plaintiff's account is available for settlementnegotiations or trial. Of course, it is importantthat the evaluation is set up correctly and that no opportunity toview and record the dog's unprovoked behavior in various situationsis missed. There are many questions that have to be answered andplanned for when setting up the format for an evaluation:

• Was another dog involved?
• Did the incident happen on the defendant's property or somewhere the dog would relateto as neutral territory?
• Has the defendant made any statements that could be testedduring the evaluation?
• Which testing protocol should be used?

The goal is to set up a foolproof and professional evaluation assoon as possible after the incident so that every bit ofinformation possible is obtained, as immediacy is a prime factor.Often, the dog is given away, disappears, or dies for one of manyreasons. The opportunity to evaluate the animal is gone and with ita possible turning point in the plaintiff's case. Fortunately, asolid presentation can be conducted even if the dog is no longeravailable, but no other evidence sums it up quite as well orintensely.

The choice not to evaluate the defendant's dog, especially ifthe dog is alive and available, can easily backfire. If you haveretained an expert, not evaluating the dog can be used to show thatnot only did the expert not perform a complete investigation butthat the expert's opinions are based on secondhand information. Ina case where the plaintiff's expert conducts an evaluation but thedefense expert does not, problems may arise. If the plaintiff'sexpert was able to see and evaluate the dog, his or her testimonywould likely carry more weight.

Mistake #2: Scene Inspection

If a dog living at the defendant's home spends time indoors,then it is important to conduct an inspection inside the home.Chewed door or window frames, scratches on doors, the dog's bed orlack of one, photos of dogs on the wall, and more can give you asense of how the dog was treated and how it acted in the house. Aplethora of toys in every room gives a lot of information aboutwhether the defendants were indulgent with their dog.

Inspecting leashes, collars, chains, dog houses, food bowls,kennels, yards, and toys also provide a wealth of information aboutthe dog to someone who deeply understands the human/caninecompanion bond and how it influences behavior. Does the owner use achoke or prong collar? Is the dog's leash extendable to 15 or 20feet? Is the water in the bowl dirty? Does the fence meet thestandard for containing a dog of this size? Is there any evidencethat the dog was aggressive at the fence and or property boundaries? Mistake #3: Using the WrongInterviewer

Often, statements of witnesses are taken by experiencedinterviewers who have little familiarity with animal behavior. As aresult, the evidence they discover leaves openings that can beexplored by the defense. What if a witness gives a statement thatthe dog was aggressive and it scared him or her? That sounds likesolid evidence, but what does it really say? Aggressive is ageneral term that can mean many things. In one case, the witnesswho labeled a dog aggressive meant that the dog had a lot of energyand played really hard or “aggressively.”

The fact that a dog has scared someone based only on theperson's non-expert perception of the dog has little meaning unlessthe dog actually demonstrates threatening behaviors. A dog thatbarks at people passing the property may seem aggressive, butbarking is not considered an aggressive behavior on its own. Even astatement from a witness that a dog barks aggressively can bechallenged unless it is dissected and proven to reveal trulyaggressive behavior, though it may just be the witnesses' personalobservations and reactions.

Additionally, an interviewer such as a private investigator maymiss important information because he or she did not realize that anumber of follow-up questions were necessary to insure a valuableinterview. It can be frustrating to learn that a second interviewis necessary, but that the previously willing witness seen by theinvestigator is now not so willing to cooperate and that aopportunity has been lost.

Mistake #4: Missing Important DiscoveryDocuments

The laundry list of important discovery documents needed in adog bite or pet-related injury case are well-known. In terms ofthe dog's information, it is almost always necessary to obtainveterinarian records, animal control records, police reports,paramedic records, names of any trainers and or groomers, and namesof independent witnesses that are familiar with the dog. Otherrelated documents that may prove helpful are American Kennel Club(AKC) registration certificates, breeding documents if the dog wasimported as a puppy or as a trained dog, and diplomas from anytraining schools.

Mistake #5: Depending on Documents Alone

Receipt of a veterinarian's records does not insure that youhave all the necessary information. These days, many veterinaryclinics respond to subpoenas for records with digital files orcomputer printouts. As most veterinarians still write out initialreports, it is important to get the handwritten notes and thecomputerized printout if even to help decipher the doctor'shandwriting. In more than a few cases, records contained the words“reactive” or “tried to bite” written in the top corner that werenot transferred to the computerized version. Additionally, it isalways ideal to talk to the veterinarian, as he or she is a greatsource and may possess information that was not included on thecharts.

Mistake #6: Not Properly Evaluating Wounds andPhotos

If a plaintiff claims that a rottweiler bit his or her arm andheld the arm in its mouth for over two minutes while knocking theplaintiff down and shaking its head, the wounds are considereddirect physical evidence of the attack. An expert who is court-qualified in wound evaluationcan give strong opinions based on photos of the wounds as well asspecific information that supports the plaintiff's version. Victimsof dog attacks are often unclear about every detail of theincident, though their wounds can tell a complete story in a waythat is hard to challenge. If there is too much disparity betweenthe plaintiff's version of the story and his or her actual wounds,then it can lead to a serious credibility issue. An example of this is a case in which theplaintiff—a tenant on the landlords property—filed suit against thelandlord after being attacked by the landlord's 125-pound, male,unneutered pit bull/rottweiler mix. The plaintiff suffered frommany wounds and the photos were disturbing. The plaintiff, anactor, gave highly emotional testimony about how he thought the dog would kill himand how the dog bit down and held each arm for minutes at a timewhile the plaintiff struggled trying to escape. He described thedog grabbing and tearing at his flesh.

When the photos of the wounds were examined by an expert, it wasdetermined that the plaintiff's wounds did not support his story.There were puncture wounds but none that suggested that the dogever “clamped down” or tore flesh. In fact, one area where theplaintiff described such an attack had no puncture wounds at all,just scratches and bruising. There was also no sign of ecchymosis,the dark bruising that appears when minor blood vessels breakaround a wound caused by the pressure of a bite.

Originally, the plaintiff asked for more than $1 milliondollars. Just before trial, the defense offered $300,000.00. In theend, the jury did not buy the plaintiff's story, assigned him alarge percentage of comparative fault, and awarded him$19,000.00.

Mistake #7: Not Consulting an Expert

It is vital to know as much about a case as possible even beforeaccepting it. Retaining an expert can be expensive, especially if acase goes all the way through deposition and trial. Most, if notall, experts offer a free initial consultation. An attorney cangive a very general set of facts and pick at the expert's brain. Asno proprietary information is being exchanged, there is no risk toeither party.

If the expert is worth his or her salt, it is highly likely thatthe case will benefit from this call. Either the expert will offerinitial responses that support what the defense's case, or theexpert will bring up potential weaknesses, not previously givenmuch notice, that need to be addressed in a timely manner. Eitherway, the claims professional will have more information and perhaps newinsights that he or she did not have before.

If retaining an expert is necessary, then it is a matter ofpicking the right one. A 5-10 minute phone call can be veryvaluable in determining if an expert is worth the expense andmaking the right decision. There are only a handful of competent,court-qualified experts in this field and the closest one may be inanother state. However, if he or she is the right expert for yourcase, costs can be reduced if the expert performs necessaryinterviews on the telephone and even completes his or herdeposition electronically, eliminating the need for travel unlessthe matter goes to trial. If travel is necessary, arrange for theexpert to complete all review during the flight so the cost oftravel also includes the cost of review for trial. Depending on thenumber of documents involved, this could save a good portion of thecost. Mistake #8: Picking the WrongExpert

Picking the right expert can make your case, while picking thewrong expert can destroy it. Experienced, court-qualified caninebehavior experts are few and far between. It is imperative that athorough examination of the expert's qualifications is performed.For example, an expert who holds a doctorate in animal behaviorsounds great on paper, but is not ideal if the animals that he orshe studied were not dogs and were housed in a laboratory ratherthan in an open environment with humans.

Veterinarians who have not received special training in thebehavior of companion animals can also be problematic, especiallyif their experience is only in veterinary clinics and the incidenthappened elsewhere. People whose professions deal with animals canbe extremely knowledgeable, though they may not have thepersonality or experience to handle attacks on theirprofessionalism and credibility in a courtroom.

The right expert should have many years of experience with asolid background specific to dogs, dog training, and dog behavior.If he or she has testified in a similar case or one involving thesame breed such as a pit bull, it is important to make sure he orshe has not testified in a conflicting manner in another case. Itis good to directly ask this question, as it can be quite upsettingwhen the opposing side impeaches your expert with their owntestimony.

An expert who changes their testimony based on which side of thecase he or she is representing will think twice before answeringthis question dishonestly, but may easily offer the opinion anattorney wants to hear and let it go at that if he or she is notasked directly. An expert who has been around for a while shouldhave solid impeachment materials in regards to other experts incase one of them is chosen by the opposition. Has he or she beenqualified in every court he or she has agreed to appear in? If not,why? If attorney references are offered make sure that he or shehas testified either at trial, mediation, or arbitration for thatattorney. A great question to ask prospective experts is for thenames of two attorneys: one who he or she has testified for and onewho has cross examined him or her. That should give a very goodsense of whether the expert is right for you.

Your expert should also have a great deal of experience in boththe investigation and litigation of animal-related cases. Knowledgeis power and you want to make sure you have all that you need tofully support your case. It is also important that your expert iscourt qualified in wound evaluation. This will be essential,especially if your expert's opinions regarding your clients' woundsare challenged.

The Reality of Litigation

In many cases, the only witness that will tell the whole truthis the dog. Dogs are truly independent witnesses in the sense thatthey have no desire to control the outcome and no ability or desireto change their behavior because they are being evaluated.

In a well-planned and well-executed evaluation, an aggressivedog will almost always act aggressively and a friendly dog willalmost always act friendly. Taking advantage of each and everysource of information is the most effective way of defending yourcase.

Ron Berman is a canine and feline behavior expertspecializing in the litigation of dog bites and pet-relatedinjuries. He may be reached at www.dogbite-expert.com.