Veterinary Expert Witness Allowed and Animals Expert Witness Allowed in Part

Plaintiffs sued defendant for violation of the Endangered Species Act and hired two experts to assist in their case.  The court allowed the veterinary expert witness in full and partially allowed the animals expert witness.

Facts:  This case (Graham et al v. San Antonio Zoological Society – Western District of Texas – United States District Court – June 8th, 2017) involves a beloved elephant names Lucky.  The plaintiffs argue that the defendant (Zoo) is harming and harassing Lucky under the Endangered Species Act (EPA) by: 1) keeping her alone without any companions; 2) keeping her in a small space which does not meet the minimum standards under the Association of Zoos and Aquariums (AZA); 3) depriving her of adequate shelter from the sun; and 4) forcing her to live on a substrate inappropriate for her species.  The plaintiffs hired Dr. Philip Ensley (veterinary expert witness) and Scott Blais (animals expert witness).  The defendant filed a motion to exclude the testimony of these experts.

Discussion:  Dr. Ensley is a retired zoo veterinarian who worked with Asian elephants when he was employed at the Zoological Society of San Diego.  In reaching his conclusion, Dr. Ensley reviewed video footage and photographs of Lucky, the elephant’s medical and husbandry records, depositions of Zoo staff and others..  He spent a day and a half observing Lucky at the Zoo, but he did not administer his own veterinary examination of Lucky.

The Zoo argue that Dr. Ensley’s opinions should not be allowed because the legal issue present in the court is whether the Zoo did not meet the standards of animal husbandry required by the AWA.  They argue that Dr. Ensley did not address the AWA issue at all.  The court opined that this issue is not the sole legal issue involved in this case and Dr. Ensley’s opinions are relevant because they could assist the trier of fact in determining whether the husbandry practices are compliant even if he did not expressly address AWA compliance.

In addition, the Zoo maintains that Dr. Ensley’s opinions are not reliable for four reasons: 1) he misstates the facts; 2) his review of the literature does not provide a basis for his opinions; 3) his relevance on a specific study contradicts his causation opinions; and 4) there is too great an analytical gap between the facts and his opinions.  The court disagreed and allowed Dr. Ensley’s opinions in full.

Regarding Mr. Blais’ opinions, the Zoo argues that they are not relevant because they apply to all zoo elephants and are not relevant to Lucky.  In addition, they argue that Blais opinions lack reliable methodology. Last, the Zoo argues that Blais is not qualified to give expert testimony on veterinary issues because he is not a veterinarian.

The court decided that the Blais’ opinions are relevant even though they discuss the size of enclosures at other zoos.  Also, the court allowed only part of Blais’ opinions as he does not provide reliable methodological backup.  His reliance on commonly accepted fact without any studies to back it up made some of the opinions a candidate for exclusion.  Last, the court opined that Blais is not subject to exclusion based on qualifications.

Conclusion:  The motion to exclude the expert witness testimony of Dr. Philip Ensley is denied and the motion to exclude the expert witness testimony of Scott Blais is granted in part and denied in part.