Importance of Comparative Psychology in Pet Industry Litigation

Journal of Social Sciences

Editorials Importance of Comparative Psychology in Pet Industry Litigation

Charles I. Abramson and Timothy E. Black

Department of Psychology, Laboratory of Comparative Psychology and Behavioral Biology, Oklahoma State University, USA

Article history Abstract: Comparative psychology is the branch of psychology that studies Received: 12-06-2017 animal behavior. This article describes the value of comparative Revised: 20-06-2017 psychology for pet industry litigation. An overview is provided on the Accepted: 29-08-2017 unique strengths and skills of a comparative psychologist and how Corresponding Author: comparative psychology differs from other scientific disciplines interested Charles I. Abramson in the behavior of animals. In addition, examples are provided on how Department of Psychology, comparative psychology can be applied to litigation in the pet industry. Laboratory of Comparative Information is also provided on the training of comparative psychologists Psychology and Behavioral and where comparative psychologists can be found. Biology, Oklahoma State

University, USA Email: [email protected] Keywords: Comparative Psychology, Pet Industry, Litigation

Introduction the industry (Paulman, 2008). In addition to lawsuits, companies face regulation, recalls and product liability The pet industry is a multibillion dollar enterprise claims. While many of these cases surround products with sales of products and services projected to be produced by major companies, some involve the ethical $62.75 billion dollars in 2016 (APPA, 2016). treatment of animals by public organizations. In the case Unfortunately much of the data on the amounts pet of Daskalea v. Washington Humane Society, for companies spend on related litigation is unavailable. example, the issue was not a product harming an animal, Major outlets such as the American Bar Association, Pet but the organization itself (Daskalea v. Washington Industry Magazine, Pet Business Magazine and Sundale Humane Society, 2010). The purpose of this paper is to Research for example, do not keep such statistics. A bring to the attention of legal professionals the contributions that comparative psychology can make to recent survey of Fortune 200 companies acknowledged the field of pet litigation. that there are few empirical studies documenting legal No case in the pet industry field has gone to trial in costs across disciplines (U.S. Chamber Institute for which a comparative psychologist has been called as an Legal Reform, 2010). The lack of empirical data as expert witness. While there is no direct precedent for opposed to anecdotal evidence is suggested to be due, in consulting a comparative psychologist as an expert part, because of confidentiality agreements witness, many legal teams have called upon As a result of cases settled out of court and subject to psychologists to offer testimony on subjects in which confidentiality agreements, it must be noted that, like the they are knowledgeable. These cases include domestic lack of data on how much is spent on pet industry litigation, there are no published accounts of specific abuse (New Hampshire v. Baker, 1980), custody cases where a comparative psychologist has been called disputes (Painter v. Bannister, 1966), and perhaps most to testify during a trial. All of the cases that the senior notably, cases involving the insanity defense (Clark v. author has been involved with, have been subject to Arizona, 2006; United States v. Salvia, 1992). The confidentiality agreements. Occasionally, as in cases of precedents set by the use of clinical psychologists as class action suits brought against major companies like expert witnesses lends support to the use of comparative Big Heart Pet Brands, Blue Buffalo Company (Ltd.), psychologists as a source of valuable information Nutro Products, and Tyson Foods Inc.-Animal Nutrition regarding animals, their behavior and interactions with Group, such litigation is brought to the attention of the humans, and the products that are supplied to them. public, the largest of which resulted in a settlement of 24 This article will highlight the application of million dollars and subsequent FDA regulatory reform of comparative psychology to pet industry litigation and

Charles I. Abramson and Timothy E. Black. / Journal of Social Sciences 2017, 13 (3): 118.123 DOI: 10.3844/jssp.2017.118.123 seeks to encourage those in the legal professions and pet A comparative psychologist bridges the gap between industries to consult comparative psychologists. This Ethology and Sociobiology. Comparative psychologists paper will explore the strengths and skills of a brings an understanding of behavior, both human and comparative psychologist, the advantages over other animal, and its multitude of potential underlying causes professions that examine animal behavior, what it takes to the analysis of any legal argument. Comparative to become a comparative psychologist, and how such a psychology, unlike other behavioral sciences, is able to psychologist can address issues in the pet industry. approach pet industry litigation with psychological Comparative psychology can be defined as the expertise in many areas of interest including human-pet application of the comparative method to problems in interactions, product testing, assessment of emotional psychology (Abramson, 2015). A major emphasis in aspects of a product on its user, and evaluating the comparative psychology is the study of animal behavior effectiveness of enrichment devices on pets and farm both within and between species and subspecies. animals. Moreover, unlike other disciplines that study Depending on the history one reads, it is considered the animal behavior, comparative psychologists are trained first form of psychology, and has as its founders and as psychologists. An ethologist, socio-biologist, and adherents, Aristotle, M. E. Bitterman, Charles Darwin, zoologist all study behavior but they are inadequate if Pierre Flourens, C. Lloyd Morgan, Ivan Pavlov, George the evidentiary basis of the litigation is psychological Romanes, B. F. Skinner, Ethel Tobach, Margaret F. such as human-pet interactions, animal depression, and Washburn, and John B. Watson (Jaynes, 1969; Lockard, pet custody disputes. 1971; Dewsbury, 1984). Indeed, in his summary of the Comparative psychologists are well versed in field, Greg Moran stated that comparative psychology is experimental design. In the normal course of their work, a field uniquely focused on issues regarding interaction they routinely use such fundamental building blocks of with, and maintenance of, animals of all kinds (Moran, experimental design as independent and dependent 1987) suggesting it has a place in the legal proceedings variables, control variables, analogies, homologies, regarding these interactions. For readers interested in the statistical analyses and systematic variations. It is worth history of comparative psychology there is an on-line noting that analogies and homologies hold specific resource: http://comparativepsych.wixsite.com/mysite. relevance to pet industry litigation, as they are defined as behaviors of a common function, or of a common Applicability of Comparative Psychology to ancestral descent respectively (Wenzel, 1992). Litigation Comparative psychologists routinely use descriptive Comparative psychology has much to recommend it designs (known as behavioral profiles or ethograms), for pet industry litigation. It is arguably the only correlational designs, and experimental designs including quasi-experimental designs. Indeed, it can be psychological discipline where one is explicitly trained concluded that the majority of a comparative to make direct comparisons. It may be argued that all psychologist’s qualifications to serve on a litigation team psychologists are trained to make comparisons, but given stems from this set of skills. The ability of a comparative the recent revelations about the problems of replication, psychologist to examine behaviors, and subsequently there is room for doubt (Grice et al ., 2012; Bohannon, make comparisons between and among species is all due 2015; Hubbard, 2015). One may pose the question “why to the rigorous training in experimentation that is should we use comparative psychology, when other required for an advanced degree. For example, consider systems for examining behavior, such as ethology, a common example in the pet industry where the use of exist?” The answer is simple. Other sciences that focus “systematic variation” would be of value to in litigation. on behavior, often fail to take into account the In an experiment suggesting the superiority of one type psychological perspective and frankly do not have the of treat over another an advertisement might claim that necessary psychological training. Ethology, for example, four out of five cats prefer treat “A” over treat “B”. A focuses almost exclusively on behavior expressed under comparative psychologist would point out that such a natural conditions with a goal of understanding the claim is meaningless if, for example, the study has a evolutionary history and adaptivity of behavior (Lorenz, limited age range, a single sex, and/or one breed of cat is 1981). Sociobiology, another science that is interested in tested. Age, sex, breed, and other factors, must be animal behavior focuses primarily on social behavior and “systematically varied” before such a claim can be made. its underlying evolutionary and genetic components A comparative psychologist in this instance can offer (Alcock, 2001). Although the fields of Ethology and litigators information and suggestions concerning new or Sociobiology have both made major contributions to the ongoing research, and in the case of improving the study of behavior, proponents have little or no formal evidentiary basis of a case, bring to light potentially training in the psychology of pets nor the interactions of overlooked factors in a company’s testing and pets and their human companions. development procedures.

119 Charles I. Abramson and Timothy E. Black. / Journal of Social Sciences 2017, 13 (3): 118.123 DOI: 10.3844/jssp.2017.118.123

Comparative psychologists have uncovered many on observational research with little attention paid to species and subspecies differences which lead to the human-pet interactions. Conversely, the general conclusion that it is difficult to generalize across psychologist works almost exclusively with humans, subspecies. One study noted differences in the ability of offering little insight into how behavior varies across and dogs to respond to hand gestures based on breed within species. In juxtaposition to the two, the (Wobber et al ., 2009). Likewise, examination of anxiety comparative psychologist explores behavioral variations across dog breeds revealed that there are significant within and between species and possesses the extensive variations based on the breed of dog studied (Mahut, research tools to make valid conclusions. 1958). Yet another study, conducted on cattle, noted Consider what goes into designing a single direct changes in feeding behavior based on the breed experiment comparing a cat and a dog. First, does it (Schenkel et al ., 2004). Thus companies making make sense to make such a comparison? What should be generalized claims such as “most pets prefer” or nine out compared – is the behavior we are comparing between of ten dogs prefer” open themselves up to suits regarding the two species analogous or homologous, how are deceptive advertising. rewards or punishment equated across the two species, Second only to their expertise in research design, what apparatus should be used? If a difference is found, comparative psychologists are trained to make valid is the difference qualitative and not based on differences comparisons, and expose invalid ones. Consider, for in motivation, sensory ability, subject variables such as example, a recent study by Halos et al . (2015) the title of age or sex, rewards and testing protocols? As such, once which is “Preference of dogs between two commercially a difference is detected, possible explanations must be available oral formulations of ectoparasiticide containing systematically varied to ensure that difference is real and isoxazolines, afoxolaner or fluralaner” A comparative not simply based on quantitative variations. psychologist would immediately point out that such a The ability to answer these kinds of questions and to title is potentially misleading. Further analysis of the evaluate them experimentally is one of the hallmarks of article revealed that only beagles were examined. It is comparative psychology. Comparative psychologists are not logical, nor experimentally sound, to extend the able to answer questions in depth, and ensure that the results obtained with a beagle, to other dog breeds results can be replicated. In the pet industry this type of without adequate experimentation. To generalize this to comparative work can be used to improve and evaluate a a human example, it would be similar to collecting data product, explore a product’s generalizability from from the Ponca Tribe in Oklahoma, and claiming that it laboratory to field, appraise the preference of a product over was representative of all Native Americans. There is a a competitor, and determine why one product is selected by further issue of ecological validity, as the behaviors of an animal (or human) over another. An in depth animals are often specific to their environment. For comparative analysis offers direct benefit to those involved example, a study by Blanchard et al . (1986) noted in litigation as proper evaluations and the understanding and marked differences between fear responses in a interpretation of experimental designs can bolster, or even comparison of laboratory raised and wild caught rats. pre-empt, many legal cases before they proceed to trial. What was needed in the Halos et al . (2015) study was a Given all these abilities, one may make the logical group examined under “in-home” conditions. Finally, the conclusion that a comparative psychologist’s greatest benefit to litigation is in expert testimony. Psychologists, study used beagles that had been the subject of previous have often been brought into courts to provide testimony on drug trials. Clearly, there is potential for the results to mental and behavioral disorders (Myers, 1992), emotional have been compromised by the dogs’ previous history of state, and psychological testing (Greenberg et al ., 2003). In drug use. Other questions that might compromise results all of these cases, the role of the psychological expert in Halos et al . (2015) include the type of testing method witness is to provide clarification of definitional issues, (some methods being more valid than others given the clinical and experimental evaluations, and scientific circumstances of the study), issues related to age and weight assessment of the issue at hand (Myers, 1992). While such of test subjects, what kind of products were evaluated on cases exist for many types of litigation, no case has gone to the animals prior to the administration of the test product trial in which a comparative psychologist has been called to (known as subject variables). These and many other act as such a witness. Therefore, the body of existing questions are the type asked by comparative psychologists. literature that can explore the usefulness of a To further highlight the niche filled by comparative comparative psychologist to litigation teams is psychologists, consider the comparison of a general understandably small. To further explore the value of psychologist, comparative psychologist, and an comparative psychology in pet industry litigation some ethologist. All three have interest and experience in potential legal situations in which a comparative research and uncovering fundamental issues related to psychologist might be called to act as such a witness will the analysis of behavior. The ethologist typically focuses now be considered.

120 Charles I. Abramson and Timothy E. Black. / Journal of Social Sciences 2017, 13 (3): 118.123 DOI: 10.3844/jssp.2017.118.123

Walker et al . (1997) present anecdotal evidence for manner that would be “best for the animal.” Such a case the treatment of phobias and anxiety in dogs by oral mirrors that of many custody disputes regarding medication. Suppose that a dog owner after reading the children, such as Painter v. Bannister (1966) in which article (and/or the various advertisements touting the two psychologists were brought in as expert witnesses to benefits of antidepressant medication for pets) assess the home conditions posed by the parties vying administers amitriptyline and sees little or no for custody. A comparative psychologist, unlike an improvement. The dog owner may file suit against the ethologist or sociobiologist, has the ability to do much authors of the study and the manufacturer of the same regarding the well-being of pets under custody amitriptyline claiming that the analysis of the authors disputes. Under the circumstances presented by and the product’s effectiveness was unreliable if not Houseman v. Dare (2009), a comparative psychologist outright false and dangerous. Here, a comparative could provide empirical evidence based on experiments psychologist’s experimental skills and cross-species as to which environment would be more beneficial to the experience are exemplified. In such a case, a pet. Moreover, a comparative psychologist could comparative psychologist unlike an ethologist or examine the animal’s behavior, and offer insight, based sociobiologist, could provide operational definitions for on empirical evidence, to determine which party the revealing anxiety in dogs and how this definition relates animal would most prefer to remain with. to the definitions of depression in humans. It may be a The previous two cases were concerned with the surprise for readers to lean that there are no generally effectiveness of pet “psychotherapy” and pet custody accepted definitions of such human psychological issues, respectively. Now consider Heiligmann v. Rose disorders as anxiety, depression, separation anxiety, (1891) a precedent setting case which gave rise to the compulsive disorder, and cognitive dysfunction. If there practice of paying economic damages when an animal are no generally accepted definitions for human can no longer perform its function. According to the psychological problems it cannot be claimed that any ruling in Heiligmann v. Rose, this “fair market value” medication can solve these problems in pets. Medication encompasses not only what price was paid for the to relieve cognitive dysfunction is especially problematic as animal, but also the value of any services the animal there is no generally accepted definition of cognition. In a provided to their owners. Here again, having expert recent study surveying 9 popular introductory psychology testimony from a comparative psychologist is of benefit. and cognitive psychology textbooks, each textbook A comparative psychologist may assess, based on either provided a different definition of cognition (Abramson, previous observation of the animal, accounts of its 2013). How can a medication state that it improves former skills, and/or empirically derived evidence, cognitive function in dogs if there is no generally accepted whether or not an injury has impaired its ability to definition of cognition – the answer is that it cannot. perform tasks that it was purchased to perform. An analysis of behavioral definitions forms a central theme of comparative psychology and is often Additional Skills overlooked in litigation. Definitions of behavior, intelligence, and the procedures used to measure these In addition to research skills, comparative behaviors are often inconsistent. This becomes important psychologists by their very training have advanced in pet litigation as products may claim to increase critical thinking skills, a cultivated world view, and a set intelligence, cognitive function, or even improve of real world problem solving abilities (White, 2007). behavior. Consider that there is no consistent definition Unlike in other types of psychology, comparative of the word “behavior” among behavioral biologists psychologists can be found in a wide range of applied (Cvrčková et al ., 2016; Levitis et al ., 2009). That any fields in addition to academia. These fields include product may claim to alter an animal’s behavior when little agriculture, animal-human interaction, “pet psychology”, scientific consensus exists as to what is behavior is startling. reproduction and reintroduction of endangered species Psychologists have sought to bring consensus to the and zoological gardens, even extending as far as scientific community on such definitions, not only for the robotics. In addition to a wide range of applications, term behavior, but also intelligence (Sternberg and comparative psychologists make use of many species in Detterman, 1986; Legg and Hutter, 2007). Even the their research, far beyond the traditional white laboratory definitions of learning procedures associated with Pavlovian rats and pigeons (Papini, 2010). The wide range of skills, and operant conditioningare inconsistent (Abramson, 1994). and experiences that go into the training of a The case of Houseman v. Dare (2009) is another comparative psychologist, along with the core skills illustration of the potential value of a comparative required in the field, ensure that a comparative psychologist to pet industry litigation. Here, the custody psychologist would be of value to any litigation team. of a pet dog was in dispute after both parties separated. Unlike clinical psychologists and psychiatrists who In this case, both parties urged the court to find in the typically come from graduate programs that are

121 Charles I. Abramson and Timothy E. Black. / Journal of Social Sciences 2017, 13 (3): 118.123 DOI: 10.3844/jssp.2017.118.123 accredited by the American Psychology Association or Funding Information the American Psychiatric Association respectively, and must pass state licensure requirements before they are This article was funded in part by grants NSF-REU allowed to practice unsupervised, comparative (2016-1560389), NSF-OISE (2015-1545803). psychologists have no such formal requirements. The question naturally arises how do comparative Author Contributions psychologists become qualified. Typically, training in Charles Abramson: Drafted the paper. comparative psychology starts at the undergraduate Timothy Black: Assisted in editing and revision. level. Following completion of a bachelor’s degree in psychology, students interested in advanced training apply to a graduate program in comparative psychology Conflict of Interest with the goal of obtaining a PhD. The PhD may take There is no conflict of interest to declare. anywhere from four to seven years of advanced training. Following successful completion of coursework, References qualification and comprehensive examinations, dissertation and dissertation defense, the student is now ABI, 2017. Animal Behavior Institute. qualified as a comparative psychologist. Abramson, C.I., 1994. The Primer of Invertebrate Conducting ethical research and the ethical treatment Learning: The Behavioral Perspective. Washington, of animals forms a major part of the training of a DC: American Psychological Association, pp: 273. comparative psychologist. No experiment can be Abramson, C.I., 2013. Problems of teaching the performed without approval of an Institutional Animal behaviorist perspective in the cognitive revolution. Care and Use Committees (IACUC) of the host Behav. Sci., 3: 55-71. DOI: 10.3390/bs3010055 organization. The training, which includes such courses Abramson, C.I., 2015. A crisis in comparative as reducing pain and stress and proper handling psychology: Where have all the undergraduates procedures must be taken by all professors, students, and gone? Front. Psychol., 6: 1500. care givers who work with animals. Moreover, the DOI: 10.3389/fpsyg.2015.01500 course must be taken every three years. The IACUC ABS, 2014. Certification Requirements and Application. training is designed to comply with the Animal Care Act Alcock, J., 2001. The triumph of sociobiology. Oxford, of 1966. This is the only federal law in the United States United Kingdom: Oxford University Press. that governs the treatment of animals in research. APPA, 2016. Pet Industry Market Size and Ownership Several organizations provide applied animal Statistics. behavior certificates. These organizations include the Blanchard, R.J., K.J. Flannelly and D.C. Blanchard, ABI (2017) and the ABS (2014). Certified animal 1986. Defensive behaviors of laboratory and wild behavior specialists come from a variety of backgrounds Rattus norvegicus. J. Comp. Psychol., 100: 101-107. including biologists, ethologists, psychologists, DOI: 10.1037/0735-7036.100.2.101 veterinarians, and zoologists. However, none of these Bohannon, J., 2015. Many psychology papers fail courses offer a concentration in comparative psychology. replication test. Science, 349: 910-911. DOI: 10.1126/science.349.6251.910 Discussion and Conclusion Clark v. Arizona, 2006. 26 S.Ct. 2709. Cvrčková, F., V. Žárský and A. Markoš, 2016. Plant Comparative psychologists have a unique set of studies may lead us to rethink the concept of evaluative skills should be part of any pet litigation team. behavior. Front. Psychol., 7: 622. Comparative psychologists can provide not only critical DOI: 10.3389/fpsyg.2016.00622 evaluations of pet industry experimental designs and Daskalea v. Washington Humane Society, 2010. 710 analysis, but also help design experiments to evaluate pet F.Supp.2d 32. products and human-pet interactions. Comparative Dewsbury, D., 1984. Comparative psychology in the psychology is uniquely suited to the field of pet litigation. twentieth century. Stroudsburg, Pa.: Hutchinson Industry officials seeking a comparative psychologist Ross Inc. may want to contact them directly, or use a “subject Greenberg, S.A., R.K. Otto and A.C. Long, 2003. The matter expert program”, which are often hosted by utility of psychological testing in assessing professional organizations like the American emotional damages in personal injury litigation. Psychological Association (APA). Division 6 of the Assessment, 10: 411-419. APA maintains a list of comparative psychologists. DOI: 10.1177/1073191103259532

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