Wednesday, October 12, 2005

Canine Personality, Canine Character, Canine Science & Canine Value

Brown v. Eberly, 2002 U.S. Dist. LEXIS 22012 (E.D.Pa. 2002) grew out of a civil action by a couple against a police officer for shooting their dog, a female Rottweiler. The trial judge, Thomas N. O'Neill, considered various motions. His memorandum opinion states in part:
3. Defendant's motion to preclude all testimony and exhibits that seek to attribute human qualities or attributes to plaintiff's dog

The issue to be tried is whether defendant's actions on April 8, 1998, violated plaintiffs' constitutional and state law rights. Evidence that would seek to attribute human characteristics to the dog is not relevant and will be excluded.

The pictures attached to defendant's motion must be examined under a Rule 403 analysis. The first picture, of the parking lot at the location of the incident, is clearly admissible. The picture of the dog and the child on the couch with the child thinking "we're best buddies" is excluded under Rule 403. The third picture attached to the motion shows one of plaintiffs' children leaning on the dog, who is [lying] on the floor. It is admissible because it is evidence of how well behaved the dog was with people and is not unfairly prejudicial to the defendant. The fourth picture shows the dog by herself wearing a large bow around her neck. Unless the dog was wearing this collar when shot on April 8, 1998, the picture is excluded under Rule 403.

4. Defendant's motion in limine to preclude all character testimony related to plaintiff's dog

Plaintiffs seek to introduce testimony establishing the friendly nature of their dog in an attempt to refute defendant's claim that she lunged at him. Defendant argues that such testimony is inadmissible character evidence under Federal Rule of Evidence 404.

We have not found any Pennsylvania or Third Circuit cases addressing whether evidence of past behavior of an animal should be excluded under Rule 404, however, the highest courts of several states have admitted such evidence. See Hood v. Hagler, 1979 OK 163, 606 P.2d 548, 551-52 (Okla. 1979); Forsythe v. Kluckhohn, 161 Iowa 267, 271, 142 N.W. 225 (Iowa 1913); Stone v. Pendleton, 21 R.I. 332, 43 A. 643, 643-44 (R.I. 1899); see also 1A Wigmore, Evidence § 68a (Tillers rev. 1983). I will not exclude evidence concerning Immi's disposition as inadmissible character evidence.

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8. Defendant's motion in limine to preclude the expert report of Andrew Bensing

Plaintiffs seek to have Andrew Bensing testify as an expert on the behavior of Rottweilers. He would testify to the behavior of female Rottweilers as a breed and the behavior of Immi in particular. Defendant challenges the testimony on three grounds: (1) that it would be inadmissible character evidence; (2) that Mr. Bensing's experience with the dog would be irrelevant because it ended over a year before the shooting; and (3) that it does not satisfy the prong of the Daubert analysis that requires a "fit" between the expert testimony and the facts of the case.

The objection to the testimony as inadmissible character evidence is taken care of by my ruling on character testimony in general. Testimony about Immi's past behavior is admissible.

That Mr. Bensing's frequent contact with the dog ended a year before the incident does not render his testimony irrelevant. Mr. Bensing had extended contact with Immi for over two years and then occasional contact with her until her death. Defendant may point out to the jury that Mr. Bensing's time with the dog was only occasional for a year before her death, but he cannot preclude his testimony entirely.

Defendant's argument about the "fit" step of the Daubert analysis will be considered at a Daubert hearing.

9. Defendant's motion in limine to limit testimony regarding the valuation of plaintiff's dog

Under Pennsylvania law a dog is personal property. 3 P.S. § 459-601 (2002); Desanctis v. Pritchard, 2002 PA Super 221, 803 A.2d 230, 232 (Pa. Super. 2002) 3 P.S. § 459-601 (2002). It is proper as regards the section 1983 claim, therefore, to limit testimony regarding the value of the dog to that addressing its value as a piece of personal property. No testimony regarding the value of Immi to the plaintiffs in particular will be admitted as evidence regarding the valuation of the dog.

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