Moves to strike Texas board experts testimony based on VIN comments, alleges witness was not impartial.
Kristen Lindsey and Brian Bishop, her attorney, at the administrative hearing. (Photo courtesy of Alley Cat Allies)
Kristen Lindsey, DVM, the Texas veterinarian at the center of the controversy surrounding the bow-shooting death of a cat that began more than a year ago, has filed a motion to strike testimony from a witness who testified during an administrative hearing to determine the status of her license, according to court documents.
William Folger, DVM, MS, DABVP (feline), feline regent for the American Board of Veterinary Practitioners, testified as an expert witness for the Texas Board of Veterinary Medical Examiners (TBVME) on the pain the cat that Lindsey shot may have felt and the immediacy of its death. Lindsey's motion calls into question Folger's ability to give fair and balanced testimony based on online statements Folger made on the Veterinary Information Network (VIN) website regarding Lindsey's actions.
In April 2015, Lindsey posted an inflammatory message on Facebook along with a graphic photo of herself holding an orange and white cat with an arrow shot through its head. "My first bow kill ... lol," the post read. "The only good feral tomcat is one with an arrow through it's [sic] head! Vet of the year award ... gladly accepted."
An Austin County grand jury found insufficient evidence to charge Lindsey with criminal animal cruelty, though there was a tidal wave of outrage from all corners of the world regarding her actions. The TBVME, however, found her in violation of the Veterinary Practice Act and moved to revoke her license.
After a mediation session to resolve the case was unsuccessful, a hearing before administrative law judges took place on April 25-26, 2016. Testimony was heard over two days with witnesses being called by both Lindsey and the TBVME.
Lindsey testifying during her administrative hearing. (Photo courtesy of Alley Cat Allies)
At the conclusion of that hearing, lawyers for both parties had until June 10 to submit closing arguments. But on June 6, Lindsey's lawyer filed a motion that seeks a partial new trial or to reopen the evidence to supplement the record and to strike testimony of Folger, according to court documents.
During the hearing Folger discussed the markings of the cat in question and the pain and suffering it likely experienced. He also testified that he believed that the cat in the photo was still alive when Lindsey took the picture, based on its body positioning, local media reported. Lindsey had asserted that the cat died instantaneously in her testimony.
In the June 6 motion, Lindsey's lawyer asserts that Folger's testimony contained "extremely damning and incriminating opinions to support the Board's allegations" and that most of Folger's opinions were "subjective conclusions based on what Dr. Folger testified he believed the 4/15/15 Facebook photograph showed."
The motion alleges that Folger's testimony at the hearing directly contradicted what he'd posted about the situation on the VIN website in 2015. According to the motion, Folger wrote on VIN that "it seems to be a perfect kill shot through the skull ... a perfect kill shot by a novice hunter with a cat that may be missing part of it's [sic] RR leg = could the cat have been caught in a trap? If the cat was immobilized, it would have made the perfect kill shot by a novice more likely."
Folger also displayed animosity toward Lindsey and her actions in his VIN posts, according to the motion, comparing her to Hannibal Lecter and calling her a lunatic, stating that he hoped for "Texas to be free of Kristen Lindsey. I hope she leaves our great state," that he was ashamed over "how incompetent and lazy the local DA was in this matter," and that he hoped the state board would be more diligent.
Folger also sent an email to the district attorney's office after its decision not to pursue criminal animal cruelty charges against Lindsey, according to the motion. In the email he sarcastically congratulated the attorney for clearing Lindsey and said he hoped she'd leave Texas "right now," the motion states.
Lindsey's lawyer says in the motion that this new evidence "fatally undermines Dr. Folger's credibility and his integrity" and that his testimony should be stricken from the record as patently untrustworthy and unreliable. Folger was the primary witness the TBVME called in this case.
The TBVME filed a response to Lindsey's motion on June 20, calling the motion an "eleventh-hour attempt to discredit a highly reliable, informative expert witness," according to court documents. The board states that Lindsey's motion doesn't meet the required elements to reopen evidence, that she hasn't shown good cause for partial new trial and that there's no basis to strike Folger's testimony. The TBVME asks that the motion be denied by the administrative law judges assigned to the case.
In its response the TBVME argues that Lindsey and her lawyer did not do due diligence to obtain Folger's comments before the trial, though they were readily available. "Respondent's motion merely states that Respondent's counsel 'has obtained' the VIN comments. Respondent did not divulge when the comments were obtained," the TBVME's response states. "If the comments were obtained before the hearing, Respondent cannot introduce them after the fact simply because Dr. Folger's testimony was harmful to her position."
The TBVME alleges that Lindsey and her lawyer had opportunity to research Folger and prepare for his cross-examination, but it appeared that they "simply declined to do so." Lindsey's lawyer could have deposed Folger, requested a written expert report or asked for a more detailed designation of Folger's expected testimony, but "deliberately declined to do any of these things," according to the court document.
In regard to Lindsey's assertion that Folger's VIN comments were inconsistent and biased compared with his testimony at the hearing, the TBVME states that the comments "clearly reflect a practitioner who is shocked and disgusted by Respondent's actions. However, these statements don't necessarily show bias. In fact, they are entirely consistent with Petitioner's position that Respondent has tarnished the practice of veterinary medicine and should no longer be allowed to practice in Texas."
The TBVME asserts that though Folger may find Lindsey's actions reprehensible, there is no indication that Folger's personal opinions in any way affected the professional, expert opinions offered in his testimony. It also notes that Lindsey's motion inaccurately states that Folger's testimony is "the only evidence" the TBVME presented to prove that the cat Lindsey shot was not an intact male as she has claimed. The TBVME also presented photography and testimony from Tiger's owners and pet sitter.
Other arguments the TBVME makes against granting Lindsey a partial new trial is that the admission of the new evidence at this stage of the hearing process will cause a considerable delay to the already lengthy process and that "Staff has already devoted substantial time and resources in responding to Respondent's copious pleadings and conducting the contested case hearing. Furthermore, Respondent has repeatedly complained that the contested case proceedings have prevented her from finding permanent employment."
From here, each side has until July 8 (extended from July 1) to respond to the other party's arguments. Should the case follow standard protocol, the administrative law judges will then have 60 days to issue a decision. Both parties will have an opportunity to file written responses and ask the judges for any changes they feel are appropriate. The TBVME will then consider the case at its next open meeting. The TBVME expects that the case will go before the full board at its October 2016 meeting.