Deposition of Dana Fennewald, Executive Director of Missouri Veterinary Medical Board

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IN THE CIRCUIT COURT OF CLINTON COUNTY 1

STATE OF MISSOURI 2

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MISSOURI VETERINARY MEDICAL ) 4

BOARD, ) 5

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Plaintiff, ) 7

) 8

vs. ) Case No. 10CN-CV00842 9

) 10

BROOKE RENE GRAY and ) 11

B & B EQUINE DENTISTRY ) 12

) 13

Defendants. ) 14

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DEPOSITION OF DANA FENNEWALD 17

Taken on behalf of Defendant 18

September 7, 2011 19

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I N D E X 1

EXAMINATIONS PAGE 2

Direct Examination by Mr. Roland 5 3

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EXHIBIT INSTRUCTIONS: 5

Original exhibit is attached to original deposition. 6

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EXHIBITS PAGE 8

Fennewald Exhibit No. 1 9

Letter 44 10

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IN THE CIRCUIT COURT OF CLINTON COUNTY 1

STATE OF MISSOURI 2

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MISSOURI VETERINARY MEDICAL ) 4

BOARD, ) 5

) 6

Plaintiff, ) 7

) 8

vs. ) Case No. 10CN-CV00842 9

) 10

BROOKE RENE GRAY and ) 11

B & B EQUINE DENTISTRY ) 12

) 13

Defendants. ) 14

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DEPOSITION OF WITNESS, Dana Fennewald, 16

produced, sworn, and examined on September 7, 2011, between 17

8:00 a.m. and 6:00 p.m. of that day at the Office of the 18

Attorney General, Broadway State Office Building, 221 West 19

High Street, Jefferson City, Missouri, before Janna L. 20

Tayon, Court Reporter, CCR No. 1260, in a certain cause now 21

pending before the Circuit Court of Clinton County, 22

Missouri, wherein Missouri Veterinary Medical Board is 23

Plaintiff and Brooke R. Gray and B & B Equine Dentistry are 24

Defendants.25

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A P P E A R A N C E S 1

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FOR THE PLAINTIFF: 3

MR. EDWIN R. FROWNFELTER 4

Office of the Attorney General 5

Fletcher Daniels State Office Building 6

615 East 13th Street, Suite 401 7

Kansas City, Missouri 64106 8

816.889.5019 9

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FOR THE DEFENDANTS: 11

MR. DAVE ROLAND 12

Freedom Center of Missouri 13

5938 De Giverville Avenue 14

St. Louis, Missouri 63112 15

314.604.6621 16

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CERTIFIED COURT REPORTER: 20

Janna L. Tayon, CCR NO. 1260 21

TIGER COURT REPORTING, LLC 22

3610 Buttonwood Drive, Suite 200 23

Columbia, Missouri 65201 24

573.886.894225

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IT IS HEREBY STIPULATED AND AGREED by and 1

between Counsel for the Plaintiff and Counsel for the 2

Defendant that this deposition may be taken by JANNA L. 3

TAYON, a Certified Court Reporter, CCR 1260, thereafter 4

transcribed into typewriting, with the signature of the 5

witness being expressly requested. 6

DANA FENNEWALD 7

of lawful age, having been produced, sworn, and examined on 8

the part of the Defendant, testified as follows: 9

DIRECT EXAMINATION BY MR. ROLAND: 10

Q. Could you state your name for the record, 11

please. 12

A. Dana Fennewald. 13

Q. Okay. Ms. Fennewald, my name is Dave Roland. 14

I am an attorney with the Freedom Center of Missouri, which 15

is a nonprofit law firm in St. Lewis. And I represent 16

Ms. Brooke Gray. 17

This, of course, is a deposition brought by 18

the Missouri Veterinary Medical Board against Ms. Brooke 19

Gray. And I want to say at the outset that just because, 20

you know, my client is adverse to the Board that you work 21

for, there is no reason that our interaction needs to be 22

adversarial today. I am going to do my best just to be 23

collegial and, you know, ask the questions that we have, 24

and let you give me answers that you need to give.25

6

A. Okay. 1

Q. Have you given a deposition before? 2

A. I have. One. 3

Q. One. 4

A. Uh-huh. 5

Q. Okay. So you have a little bit of an idea of 6

how it works? 7

A. A little bit. 8

Q. I'll -- I'll refresh your memory. So this is 9

an opportunity that I have, as the defendant's attorney, to 10

ask you questions about what you know about the Board of 11

Veterinary Medicine and what you know about certain aspects 12

of this case. It is my understanding that you are here as 13

a representative of the Board, and we will explore that a 14

little bit when we get into some questions. 15

But a deposition is kind of like giving 16

testimony at a trial. You are under oath, and some of the 17

answers that you give might be used at trial. One of the 18

things that will be a little bit different is, if I ask a 19

question that Mr. Frownfelter feels like he needs to object 20

to, he will have the opportunity to state his objection and 21

get it on the record. 22

And then, unless it is a very unusual 23

circumstance, you will go ahead and provide the answer. 24

A. Okay.25

7

Q. And then the Judge will determine, at a later 1

date, whether the objection is valid and whether the answer 2

should be excluded. 3

A. Okay. 4

Q. So as we go through this, I am going to ask 5

you a series of questions, and then Mr. Frownfelter will 6

have the opportunity to ask you questions. And we will 7

kind of go back and forth until we feel like we've gotten 8

all the questions out there that need to be asked. If, at 9

any point, I ask a question that you feel like is unclear, 10

or you don't understand, just let me know and I will try 11

and clarify it for you, so you can provide the best answer. 12

A. Okay. 13

Q. Let's see. One thing to remember with a 14

deposition is that the court reporter has trouble writing 15

down nonverbal responses, like nods or head shakes, and so 16

as much as possible, try and remember to respond verbally. 17

And, you know, if we miss something important, in all 18

likelihood, the court reporter will let us know. 19

A. Okay. 20

Q. And we'll be able to fix that. You have the 21

opportunity to review the deposition and sign it before it 22

is finalized. You also have the opportunity to waive that 23

review. 24

And it's really just your decision as to25

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whether you would like to review it and sign it. Do you 1

know at this point whether you would like to do that or 2

whether you would like to waive your opportunity to review 3

it? 4

A. I would probably want to review it. 5

Q. Okay. All right. One more thing. If at any 6

point you feel like you need a break, just let me know, and 7

we ought to be able to engineer a break for you. I would 8

ask that if I've asked a question, that you finish 9

responding to that question before we go to a break. 10

A. Okay. 11

Q. Does that make sense? 12

A. Yes. 13

Q. Okay. Did you have any other questions? 14

A. I do not. 15

MR. ROLAND: Mr. Frownfelter, do you have 16

anything? 17

MR. FROWNFELTER: I'm good. 18

MR. ROLAND: Okay. 19

BY MR. ROLAND: 20

Q. Okay. Ms. Fennewald, where are you employed? 21

A. I employ -- I am employed at the Missouri 22

Veterinary Medical Board and the Board of Examiners for 23

Hearing Instrument Specialists. 24

Q. Okay. So you've got two hats you are25

9

wearing? 1

A. Yes. 2

Q. I actually -- I'm -- I didn't quite catch the 3

name of the second -- 4

A. Board of Examiners for Hearing Instrument 5

Specialists. 6

Q. Okay. Hearing. And what is your position 7

with the Veterinary Medical Board? 8

A. I'm the executive director. 9

Q. Okay. And what is your position with the 10

Board of Examiners for Hearing Instruments? 11

A. Executive director, also. 12

Q. Okay. How long have you been the executive 13

director for the Veterinary Medical Board? 14

A. Since 1995. 15

Q. Okay. As we go forward today, if I reference 16

the Board, I will be talking about the Veterinary Medical 17

Board. 18

A. Okay. 19

Q. Just so that we have that clear. So you've 20

been the executive director for 16 years? 21

A. Correct. 22

Q. Okay. And prior to that? 23

A. I worked for the Board, but in an 24

administrative capacity since 1991, while I went to25

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college. So from '91 to '95, I worked for the Board, but 1

it was clerical. 2

Q. Okay. So how did you come to be the 3

executive director? 4

A. I was hired by the Board. 5

Q. Okay. So that's a Board decision and not a 6

gubernatorial appointment? 7

A. That is correct. 8

Q. Are you serving a set term, or is it 9

open-ended? 10

A. It is open-ended. 11

Q. Okay. Are you a veterinarian yourself? 12

A. No. 13

Q. Okay. Have you pursued any training or 14

education in dealing with animals? 15

A. No. 16

Q. Okay. Do you have any family members who are 17

veterinarians? 18

A. I do not. 19

Q. Did you grow up on a farm? 20

A. I grew up in the country. 21

Q. In the country? 22

A. But not per se a farm. We farmed, but I 23

didn't grow up on a farm. 24

Q. I see. Did you have animals on the farm?25

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A. We had cows and pigs. 1

Q. Cows and pigs. Did you deal directly with 2

the cows and pigs when you were growing up? 3

A. I always -- you know, feeding, but that was 4

it. 5

Q. Okay. What are your responsibilities as the 6

executive director of the Veterinary Medical Board? 7

A. I am responsible for overseeing the licensing 8

and discipline of veterinarians, veterinary technicians, 9

veterinary facilities. I am also the custodian of records 10

for the Board. 11

Q. How many people are on staff full time with 12

the Board? 13

A. We have three full-time staff. 14

Q. Okay. 15

A. At the Board office. 16

Q. And as far as the day to day operations of 17

the staff, what would a typical day look like for your 18

staff? 19

A. We process applications. We receive 20

complaints. I don't know -- we get in documentation for 21

applications, like supporting documentations for 22

transcripts. We do verifications of licensures to be sent 23

to other states. Depending on the time of year, we have 24

renewals; we have to renew licenses. Preparing for25

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meetings. 1

Q. Yeah. If you were going to estimate the 2

percentage of time that the office spends dealing with 3

license applications and renewals and things of that sort; 4

would you have a guess about what percentage of your time 5

that takes? 6

A. My time or my staff's time? 7

Q. The staff's time. 8

A. All of it? Probably staff time, I mean, we 9

probably have 75 percent of application processing. 10

Q. Okay. Of the remaining 25 percent, how much 11

of that would you say is dedicated to receiving complaints? 12

A. Maybe 10. I don't -- I mean, I don't know. 13

That is a hard estimate. 14

Q. When you receive complaints, are they more 15

typically complaints about licensed veterinarians or 16

complaints about unlicensed persons? 17

A. Typically, it's about veterinarians. 18

Q. Okay. And what sorts of complaints would 19

those be? 20

A. I don't know. There could be, you know, 21

negligence, you know, individuals just thinking that their 22

animals were not treated properly. And we get a lot of 23

complaints that animals that have passed away and, you 24

know, the client is upset, so they are trying to find out25

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what happened. Things like that. 1

Q. Okay. As far as complaints about unlicensed 2

persons, what sort of complaints do those tend to be? 3

A. Individuals practicing without licenses. Is 4

that what you mean? 5

Q. Yes. If you were to receive a complaint 6

about an individual who is practicing without a license; 7

does it tend to be a complaint that an animal has been 8

injured? 9

A. It could be. Yes. 10

Q. Does it tend to be? Is it more likely than 11

not, that you're dealing with a situation where an animal 12

has been injured? 13

A. I mean, we receive some. But, I -- 14

typically, I couldn't answer that. That would be hard 15

to -- 16

Q. Okay. Can you estimate a percentage of the 17

complaints about nonveterinarians that deal with animal 18

injuries? 19

A. I couldn't estimate that. 20

Q. Okay. Do you have any sense about how many 21

complaints about unlicensed persons you receive in a month? 22

A. I mean, it just depends. I mean, we may go 23

several months without receiving complaints altogether. 24

Q. Uh-huh.25

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A. And then we may get, you know, six in a 1

month. So, I mean, it's hard to estimate that. 2

Q. So if you got six of those complaints, would 3

that be a pretty heavy month, as far as -- 4

A. Yeah. It would be. 5

Q. Okay. And that's six complaints about 6

unlicensed persons, not six complaints total? 7

A. No. Six complaints total. 8

Q. Okay. How frequently would you say you have 9

a month with that many complaints out of a year? 10

A. I would say we have over six months that we 11

would get -- we get close to anywhere from 70 to a 100 12

complaints in a year. So -- 13

Q. 70 to 100 complaints total? Or -- 14

A. In a year. Yes. Total in a year. 15

Q. Okay. And do you have an estimate about how 16

many of that 70 to 100 complaints are complaints about 17

unlicensed persons? 18

A. No, I don't. We don't -- we put them all in 19

a log. We don't keep track -- I mean, I don't know how 20

many is -- off the top of my head, how many would be 21

unlicensed and not. 22

Q. Okay. Does the Board distinguish between 23

those types of complaints though? 24

A. When they put them in the log or when they25

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review them? 1

Q. Either. 2

A. Well, they know when they review them what 3

they -- we put them in the log differently, too. And it's 4

just a different place we have to put if they're unlicensed 5

than if they're licensed. But then the Board, when they 6

see the complaint, they know that they are unlicensed 7

individuals. 8

Q. Okay. Who is responsible for sorting those 9

out or logging them? 10

A. I am. 11

Q. You are? So you're the person who's 12

reviewing each of these complaints? 13

A. I am. 14

Q. Okay. But you can't take a stab at 15

approximately how many of these complaints are unlicensed 16

persons versus licensed vets? 17

A. I wouldn't want to take an estimate -- or 18

make an estimate of that without, you know, reviewing our 19

logs. I mean, I just honestly do not know how many. 20

Q. Would you say it's less than 50 percent? 21

A. It's probably less than 50. Yes. But I 22

wouldn't know how many. 23

Q. Would you say it's one in three or fewer? 24

A. I -- I couldn't say.25

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Q. Okay. Are any of your full-time staff 1

investigators? 2

A. No. 3

Q. Do you have any person that you typically 4

rely on to handle investigations for the Board? 5

A. We have a contract investigator that we 6

contract with. 7

Q. Okay. And what is his name? 8

A. William Burton. 9

Q. Do you remember ever contracting with anyone 10

else to conduct investigations? 11

A. Bill subcontracts with John Gordon. 12

Q. Does he let you know prior to sending 13

Mr. Gordon to assist with an investigation, or is that 14

simply at Mr. Burton's discretion? 15

A. If he doesn't let us know before, John will 16

call us before he goes out to discuss the case. 17

Q. I see. Do you know if Mr. Gordon has done 18

any of the investigating for Brooke Gray's situation? 19

A. I don't recall. I don't think he did. 20

Q. Okay. Now, just to be clear, you are not a 21

member of the Veterinary Medical Board, are you? 22

A. No. 23

Q. Okay. Do you attend their meetings? 24

A. I do.25

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Q. Okay. Do you participate in their 1

deliberations? 2

A. I sit in on them. 3

Q. But you do not participate? 4

A. No. 5

Q. And you don't vote? 6

A. No. 7

Q. Okay. But you observe the votes? 8

A. I'm in the room when they take their votes. 9

Yes. 10

Q. I see. Who is responsible for recording the 11

events at these meetings? 12

A. We have a staff -- I take notes, and so does 13

a staff person. 14

Q. Okay. But it's not exclusively your 15

responsibility? 16

A. No. 17

Q. Okay. Aside from taking notes, do you have 18

any responsibilities regarding the Board's meetings? 19

A. Responsibilities as -- I mean, we have to set 20

them up, we make the arrangements. That's about it. 21

Taking notes. 22

Q. Okay. So you help schedule and get things 23

set up for them, and outside of that, your primary role is 24

taking notes.25

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A. Yeah. And if they have questions regarding, 1

you know, items on the agenda that we can, you know -- give 2

them, like, applications or things like that that we may 3

have insight in, then we will provide that information to 4

them, other than the material that they have. 5

Q. Do you communicate with Board members about 6

the substance of the matters that they consider? 7

A. You mean, what they have -- I mean, they will 8

have the documents in front of them -- 9

Q. Right. 10

A. -- of what they're discussing. And if we -- 11

they have questions that we may be able to answer, then we 12

will provide them with that information. 13

Q. Okay. So not only do you provide them with 14

the packets of information, you sometimes field questions 15

about that information? 16

A. Uh-huh. Yes. 17

Q. Okay. What kinds of questions might you get 18

from a Board member? 19

A. Well, if there's an application that they 20

have questions about. If it's a, you know, a score 21

question about a test or an exam score, or verification 22

from the State, questions like that. Just, if we have 23

general correspondence, if they have questions if, you 24

know, we've received a call, or if we've talked to this25

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person before they sent us a letter, you know, things like 1

that. 2

Q. Okay. Do Board members ever ask you to 3

conduct research for them? 4

A. There's times. Yes. 5

Q. Okay. In the context of a disciplinary 6

action, is it common for a Board member to ask you to do 7

some research for them? 8

A. A disciplinary action? 9

Q. Uh-huh. 10

A. Like, what type of research? I guess I'm not 11

understanding the question. 12

Q. Well, I don't -- I don't have a specific type 13

of research, just when the Board is considering whether to 14

discipline either a licensed vet or an unlicensed person, 15

would they ask you to gather information related to their 16

deliberations? 17

A. I guess they could. I mean, I guess there's 18

times that they would -- may ask us, but I can't really 19

remember any time that they've asked us about doing 20

research if they're going to be disciplined. 21

Q. Okay. So having the opportunity to observe 22

the Board's deliberations, do you have a sense of the type 23

of information they consider when they are evaluating one 24

of these disciplinary cases?25

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A. We -- we provide them with that information. 1

Q. Okay. So you would be able to testify as to 2

the type of information that they consider in unlicensed 3

practice situations? 4

A. Yeah. If our office has that information 5

then, yes, we would. 6

Q. Okay. To the best of your understanding, are 7

there any limits on what you are able to testify about 8

today? 9

A. Not that I am aware of. 10

Q. Okay. In this testimony, are you empowered 11

to speak on behalf of the Board? 12

A. I can speak on behalf of the Board. 13

Q. Okay. But your testimony today would not be 14

binding on the Board? 15

A. No. 16

Q. Okay. How many Board members are there 17

currently? 18

A. Six. 19

Q. Okay. How does one become a member of the 20

Veterinary Medical Board? 21

A. They have to fill out an application with the 22

Governor's office, and they are appointed by the Governor 23

and confirmed by the Senate. 24

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Q. Are all of the Board members veterinarians? 2

A. We have one public member. 3

Q. Okay. Are you aware if that public member 4

has any veterinarian background whatsoever? 5

A. I do not think they do. 6

Q. Okay. Are there any particular 7

qualifications one must have to become a Board member? 8

A. The requirements are set out in statute. 9

Q. Okay. And do -- do you know what those 10

requirements are, off the top of your head? 11

A. They have to be in practice for so many 12

years, and be a resident of Missouri, but other than that, 13

I am not sure of the requirements. 14

Q. Unless you are the public Board member? 15

A. Yes. Unless you are a public member. 16

Q. Okay. How long does a Board member's term 17

last? 18

A. I think it is usually four years, but that 19

they have to be either reappointed or replaced by the 20

Governor. 21

Q. Okay. Are there any committees on this 22

Board? 23

A. We do not have any committees. 24

Q. Okay. So if a question is presented about25

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licensing or litigation, it comes before the full Board? 1

A. Yes. 2

Q. Okay. Do you know how the Board is funded? 3

A. We are fee funded. 4

Q. Okay. Does that mean that the Board is 5

funded exclusively on licensing fees? 6


Q. Okay. It receives no other tax support? 8

A. We receive no other general revenue. 9

Q. Okay. Do you know how many active licenses 10

the Board currently oversees? 11

A. Probably around three to four thousand, 12

counting vets, techs, and facilities. 13

Q. Okay. And do you know what the annual fee is 14

for a license? 15

A. It is 50 for an active veterinarian, 25 for 16

an inactive veterinarian, 20 for a tech, and 10 for an 17

inactive tech. 18

Q. Are there separate fees for facilities? 19

A. Facilities is a $50 -- it's either $50 or $25 20

annual fee. 21

Q. Okay. Does the Board keep track of licensed 22

veterinarians who are in large animal practice as opposed 23

to small animal practice? 24

A. We do not keep track of that. No.25

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Q. Okay. So the Board does not keep track of 1

specialties? 2

A. No. 3

Q. Okay. Does the Board recognize any special 4

certifications or qualifications? 5

A. No. 6

Q. Is it correct that one of the Board's 7

responsibilities is to enforce Chapter 340? 8


Q. Okay. And 340 is the chapter that deals with 10

licensed vets; is that correct? 11

A. Yes. 12

Q. Okay. Are you familiar with that statute? 13

A. I am. 14

Q. If a member of the public has a question 15

about this statute, do you have any sense of who they would 16

call to have that question answered? 17

A. They would call our office. 18

Q. Okay. Would your office be able to answer 19

questions about Chapter 340? 20

A. On most cases, the Board office is able to 21

handle all calls. There is times some questions come in 22

that we have to refer them to the Board. 23

Q. Okay. What sorts of questions would those be 24

that you would have to refer to the Board?25

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A. I can't think of any right off the top of my 1

head. I can't think of any. 2

Q. Do the three people who work under you tend 3

to field most of the calls, or do you field calls with some 4

regularity? 5

A. It depends. Most of the time the staff 6

fields them. 7

Q. Okay. 8

A. But I do take calls also. 9

Q. Okay. Of the calls that you yourself have 10

fielded, have you ever gotten questions about certain 11

actions and whether they would be legal under Chapter 340? 12

A. Yes. 13

Q. What types of questions would you get in that 14

regard? 15

A. Well, we get chiropractic questions, equine 16

dental questions, massage therapy questions. That's really 17

all I can think about right now. 18

Q. Okay. In your experience, do these questions 19

typically come from animal owners, or do they typically 20

come from people seeking to perform these tasks? 21

A. We get calls from both. 22

Q. From both. It's not more likely to be one 23

than the other? 24

A. No.25

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Q. Okay. So if a farmer calls and says, I am 1

interested in having some massage therapy done for one of 2

my animals, what answer would you typically give? 3

A. That if they are not a licensed veterinarian, 4

they would have to be under the immediate supervision of a 5

licensed veterinarian. 6

Q. Okay. And if someone called with a question 7

about teeth floating, what kind of a response would you 8

give? 9

A. The same. They have to be either a licensed 10

veterinarian or -- 11

Q. Or under the supervision? 12

A. -- immediate supervision. 13

Q. Okay. Does your answer on questions like 14

this depend on whether the person providing the service 15

would be paid or not? 16

A. No. 17

Q. Okay. 18

A. We would tell them, regardless, that answer, 19

that they would have to be either licensed or under the 20

immediate supervision. We typically don't ask if they're 21

getting paid. 22

Q. So you don't ask, or it doesn't matter? 23

A. We don't ask that question. 24

Q. Okay. In your understanding of Chapter 340,25

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would providing one of these services, even if you're not 1

paid for it, still constitute the unlicensed practice of 2

veterinary medicine? 3

A. I would think that if they were still not 4

getting paid for it, it would be the practice of veterinary 5

medicine, but I am not a veterinarian, so I couldn't answer 6

that -- or I'm not a member of the Board, so -- 7

Q. Okay. So if you had that question, would you 8

typically ask the Board before responding, or would you 9

tell the person this is going to be considered the practice 10

of veterinary medicine? 11

A. We would tell them that it would be 12

considered the practice of veterinary medicine, and if they 13

would want us to further ask the Board, we could. They 14

would have to send it in writing -- that question in 15

writing, and it would have to go on the agenda for the 16

Board to review. 17

Q. Okay. But citizens have the option of asking 18

for a kind of an advisory opinion -- 19

A. Yes, they do. 20

Q. -- from the Board? Can you remember any 21

examples of citizens having asked such an advis-- asked for 22

such an advisory opinion? 23

A. Regarding fees, or just in general? 24

Q. In general, about what would be considered25

27

the practice of veterinary medicine. 1

A. Most of the questions regarding the practice 2

of veterinary medicines don't come from citizens. They 3

come from, you know, other veterinarians or -- 4

Q. I see. 5

A. So -- 6

Q. So what sort of a question would a 7

veterinarian ask about what constitutes the practice of 8


A. Well, there's procedures that are not spelled 10

out in black and white in their practice act that they may 11

have questions on that we get calls about. 12

Q. That licensed vets would call about? 13

A. They could. Yes. 14

Q. Okay. You said a minute ago that you -- that 15

you actually have gotten calls from licensed vets with 16

questions about what constitutes the practice of veterinary 17

medicine. Or did I misunderstand you? 18

A. We can. Yeah. We do get calls from 19

veterinarians. 20

Q. You do get calls from veterinarians? When 21

you receive one of those calls, do you get any indication 22

as to why the veterinarian is asking the question? 23

A. They may explain to us on the phone. 24

Q. Uh-huh.25

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A. I mean, some do, some don't. It just depends 1

on the caller. 2

Q. Okay. When you have gotten an explanation 3

for why a veterinarian is asking a question like that, what 4

would a representative answer of theirs be? 5

A. From our office? 6

Q. Well, let me -- let me clarify it. When a 7

veterinarian explains why they are calling, what do they 8

typically say if they've got a question about something 9

constituting the practice of veterinarian medicine? 10

A. They just may say that they were reviewing 11

our practice act and they did not see, you know -- I don't 12

know, I can't even think of an example. Something that was 13

not listed in our practice act, and they would want to know 14

if the Board actually considered that a practice of 15

veterinary medicine. 16

Q. Okay. Do you have any sense of how 17

frequently you get questions about the -- about what 18

constitutes the practice of veterinary medicine? 19

A. No. We have three people in our office. I 20

don't get notified every time somebody calls and asks those 21

questions. 22

Q. Would you say that it is unusual for you 23

personally to get a question like that? 24

A. Probably not unusual, but it is not frequent25

29

either. 1

Q. I see. Are the members of your staff allowed 2

to ask the Board about what constitutes the practice of 3


A. Questions come in, and they usually send them 5

to me, and I will either address the Board -- or if we have 6

to address the Board, it is usually in writing. 7

Q. Sure. Okay. If there is a question 8

submitted to the Board, do they typically deliberate among 9

themselves to reach the answer or do they look to someone 10

else to provide the answer? 11

A. The Board members? 12

Q. Yes. 13

A. They look at our practice act, and that's 14

really all they do. 15

Q. Okay. Do the Board members seek advice from 16

the Attorney General's office when they receive a question 17

like this? 18

A. They could. I mean, we have an attorney in 19

there. 20

Q. Is it the same attorney in each meeting? Is 21

it a designated attorney? 22

A. It's -- it depends. Right now, we've had the 23

same one for quite a while, but the Attorney General's 24

office sometimes swaps them out, so --25

30

Q. In your experience, if the Board is 1

deliberating on a question of whether a certain practice 2

constitutes veterinary medicine, do they tend to rely on 3

their own understanding, or do they tend to seek input from 4

the Attorney General -- or the attorney in the room? 5

A. I mean, the way they make their decision, I 6

really can't tell you. They are all individuals, and we 7

can only tell you what the decisions are really. 8

Q. All right. But you would know if they were 9

asking the attorney for the attorney's perspective or if 10

they were simply deliberating among themselves -- among the 11

Board members; isn't that correct? 12

A. That -- I -- I'm in the room. Yes. 13

Q. Okay. So is it more usual for them to 14

deliberate among themselves or is it more usual for them to 15

seek input from the attorney that is in the room? 16

A. There again, it depends on the situation. If 17

they need an attorney's advice, they will address the 18

attorney. And that's -- 19

Q. How frequently would you say that they need 20

the attorney's advice? 21

A. I really couldn't answer that. I mean, 22

during the meeting -- the attorney is there the whole 23

meeting. I mean -- I couldn't answer that. 24

Q. Let's talk about alleged violations of25

31

Chapter 340. How would one of these alleged violations 1

come to the Board's attention? 2

A. An official complaint. 3

Q. Okay. And who's allowed to submit an 4

official complaint? 5

A. Anyone. 6

Q. So any member of the public? 7

A. Any member of the public. 8

Q. Okay. And you review those complaints when 9

they come in? 10

A. I do. 11

Q. And when they come in, is it apparent whether 12

the complaint is from a lay person or whether it is from a 13

licensed veterinarian? 14

A. Yeah. They have to put their name on the 15

complaint. 16

Q. Okay. So anonymous complaints are not 17

allowed? 18

A. No. 19

Q. Okay. Do staff members ever initiate 20

complaints? 21

A. Not -- I mean, I have before, but not anyone 22

under me. 23

Q. Okay. Was your complaint regarding the 24

unlicensed practice of veterinary medicine?25

32

A. Not that I recall. Well, I'm not -- I don't 1

recall what it was. It's been a while. 2

Q. Do you ever remember a Board member 3

initiating a complaint? 4

A. They may have. I'm not a hundred percent 5

sure. 6

Q. Are you aware of any aspects of Chapter 340 7

that would prevent a Board member from initiating their own 8

complaint? 9

A. I don't think there's anything in there that 10

would prohibit them. 11

Q. When a complaint is filed about a licensed 12

veterinarian, what sort of a complaint usually would it be? 13

A. As I said earlier, it could be negligence, 14

you know, people lose their pets and they want to find out 15

why, it could be a number -- or any reason, fees -- which 16

we don't take care of, but -- 17

Q. Once the Board becomes aware of a potential 18

violation of Chapter 340, is there an established procedure 19

that begins? 20

A. If they know violations, yeah. If there's 21

violations, there's a procedure that they follow. 22

Q. Okay. Could you describe that procedure? 23

A. Well, depending on the violation, they can 24

refer it to the Attorney General's office and have them do25

33

settlement agreement or, you know -- depending on what the 1

terms are that they've decided upon, suspension, probation, 2

revocation, censure. 3

Q. But would that be the first step that once 4

the complaint arrives, the Board immediately starts 5

discussing what the penalty might be? Or is there 6

another -- or are there other steps between that? 7

A. Well, when we get a complaint, it is 8

acknowledged. 9

Q. Okay. 10

A. And if it's -- a copy of the complaint is 11

sent to the veterinarian. They get an opportunity to 12

respond to the complaint. Then it is placed on the agenda 13

for the Board to review. Then once the Board reviews it, 14

they will determine if additional information is needed -- 15

if we need to do an investigation, call the individual in 16

to talk to them. And then from there, they will determine 17

if any type of discipline should be taken. 18

Q. Okay. 19

A. Or if the case should be closed for no 20

violations. 21

Q. Okay. Do you have a sense of how long it 22

usually takes for a case to go from the initial complaint 23

to a resolution? 24

A. Well, the Board only meets every three --25

34

three months, so, you know, a complaint -- depending on 1

when we receive a complaint, they have so many days to 2

respond, so it could take anywhere from three months to six 3

months for a complaint to be reviewed the first time, 4

depending on when we received it. 5

Q. Okay. Do all people who -- okay. When 6

someone is notified that a complaint has been filed against 7

them, do they always have the opportunity to respond? 8

A. A veterinarian -- we're talking -- a 9

veterinarian always has an opportunity to respond. 10

Q. But a nonveterinarian might not have? 11

A. The nonveterinarian complaints are handled a 12

little differently. They get acknowledged, but then they 13

get put on the agenda for the Board to review. 14

Q. I see. 15

A. And then the Board determines if it warrants 16

an investigation. 17

Q. Okay. Do you remember any complaint about a 18

nonveterinarian in which the nonveterinarian was given an 19

opportunity to respond before the investigation? 20

A. I don't recall any. No. 21

Q. Okay. 22

A. They're all handled in the same manner. 23

Q. Okay. Can you remember any complaints about 24

nonveterinarians in which the Board decided not to initiate25

35

an investigation? 1

A. I don't recall any. 2

Q. Okay. So to the best of your memory, every 3

time the Board receives a complaint about a 4

nonveterinarian, they initiate an investigation? 5

A. To the best of my ability. Yes. That's 6

their usual route. 7

Q. Okay. So when the Board decides to initiate 8

an investigation, how do they notify the investigator? 9

A. We send, or I send a direct-- a directive to 10

Bill Burton. 11

Q. Okay. Does the Board give you very defined 12

instructions for that letter, or do you have some 13

discretion in writing that letter? 14

A. The Board will determine what the -- what 15

they want the investigator to do in those cases. 16

Q. Okay. So what are some of the things that 17

the Board might ask the investigator to do in the case of 18

alleged unlicensed practice? 19

A. Well, they'll typically have them speak to 20

the complainant, contact the individual that is the subject 21

of the complaint, and try to determine, you know, if the 22

allegations are true or -- and then, you know, any 23

documentation he can obtain. 24

Q. So when we're talking about an alleged25

36

unlicensed practice, is the complainant usually a licensed 1

vet? 2

A. I mean, they are, but we get public 3

complaints also from unlicensed individuals also. 4

Q. Okay. And can you give an example of what 5

one of those complaints might look like or entail? 6

A. Just -- like I don't -- just an individual 7

practicing without a license. I don't -- I mean, I don't 8

know exactly how they're -- they don't look any different 9

than if it was a veterinarian. 10

Q. So would it be someone expressing 11

disappointment with the services that they received, or 12

would it be someone who merely observed someone else -- a 13

nonveterinarian providing certain services? 14

A. I mean, it could be either. 15

Q. But they -- you don't have -- one is not more 16

likely than the other as far as crossing your desk? 17

A. No. Huh-uh. 18

Q. Okay. Do you remember any specific examples 19

of a lay person, a nonveterinarian, submitting a complaint 20

about another nonveterinarian where the animal was injured? 21

A. I don't recall. 22

Q. Okay. Once an investigation is initiated, to 23

whom does the investigator report? 24

A. He reports that to us -- or in my office, and25

37

then it goes to the Board. 1

Q. Okay. So to your office, and then I'm 2

assuming you would relay the reports to the Board? 3

A. They would be put on the agenda for the Board 4

to review at their next meeting. 5

Q. Okay. And when you pass along those reports, 6

are you passing along simply what Mr. Burton has written, 7

or do you add anything to that? 8

A. We would have what Mr. Burton has written, 9

any documentation that he has obtained, the complaint, any 10

documentation that is relevant to that file. 11

Q. Okay. Who makes decisions about the course 12

of the investigation? 13

A. As to what Bill would do? 14

Q. Yeah. Is Mr. Burton basically left to make 15

decisions for himself, or does he rely on someone else to 16

approve decisions that he makes regarding the 17

investigation? 18

A. Well, he gets directives from the Board, but 19

then there is times where if he has a lead on, you know, 20

someone that may help us in the case, he will take that 21

lead. I mean, he has the initiative to do that, so -- 22

Q. Does the Board typically put limits on the 23

amount that can be spent on any given investigation? 24

A. They haven't in the past.25

38

Q. Okay. Do you monitor how much is being spent 1

on investigations? 2

A. We have a -- our financial reports that we 3

get monthly that has that information on it. And he 4

submits an invoice for each complaint -- or each 5

investigation. I'm sorry. 6

Q. Do you personally regularly review those? 7

A. I have to sign off on them. 8

Q. Okay. Can you estimate what the typical 9

investigation would cost? 10

A. No. I couldn't. 11

Q. It just varies? 12

A. It varies. It depends on the location, time 13

spent. 14

Q. Do you recall ever calling off an 15

investigation because it was getting too expensive? 16

A. I don't recall that. No. 17

Q. It's kind of money is no object? 18

A. Money's an object, but, I mean, we just 19

haven't had that issue ever. 20

Q. When the Board takes a complaint about 21

unlicensed practice under consideration, is that typically 22

in an open meeting or in a closed meeting? 23

A. Closed. 24

Q. Okay. Always?25

39

A. Always. 1

Q. Okay. So their deliberations would not take 2

place in public? 3

A. No. 4

Q. And the only nonBoard members present would 5

be yourself, and possibly an attorney from the Attorney 6

General's office? 7

A. We have a staff person. 8

Q. That's right. The other person taking notes. 9

A. And we have a public member. 10

Q. But they're part of the Board? 11

A. Yeah. They're part of the Board. 12

Q. Okay. And you never make recommendations to 13

the Board about matters that they're considering? 14

A. No. 15

Q. Okay. Do the representatives from the 16

Attorney General's office ever make recommendations to the 17

Board about matters they are considering? 18

MR. FROWNFELTER: Objection based on 19

attorney/client privilege. 20

MR. ROLAND: I'm not asking about the 21

substance of the recommendation, I'm asking if a -- 22

recommendations are made. 23

MR. FROWNFELTER: You can answer the 24

question.25

40

THE WITNESS: I guess they would. Legally 1

speaking, they can make recommendations, but they don't 2

really give -- make a recommendation. They give advice. 3

BY MR. ROLAND: 4

Q. In your experience, does the Board usually 5

follow that advice? 6

A. I would say it would depend on -- on the -- 7

typically, they probably do, but I would say there are 8

times, you know, they wouldn't. But not very often. 9

Q. Okay. Do you remember any specific times 10

when they did not follow advice? 11

A. No. 12

Q. Okay. Okay. So I need you -- I need to 13

check my understanding of this process. When the Board is 14

considering a potential violation for unlicensed practice, 15

my understanding is there are a number of potential 16

outcomes. One of those outcomes would be outright 17

dismissal; is that correct? 18

A. They could close the case. 19

Q. Okay. They could close the case. 20

A. Uh-huh. 21

Q. Under what circumstances would the Board 22

close the case? 23

A. If they, during the course of the 24

investigation, did not find that the individual was25

41

actually practicing without a license. 1

Q. Okay. I think you testified earlier that you 2

don't recall any dismissals when it came to unlicensed 3

practice? 4

A. I did not recall any. No. 5

Q. Okay. One of the other options would be to 6

write a cease and desist letter; is that correct? 7

A. That's correct. 8

Q. How frequent would you say that is the first 9

step for the Board as far as one of these outcomes? 10

A. After the investigation? 11

Q. After the investigation. Yes. 12

A. That would be the typical first step. 13

Q. So would you say 90 percent of the time, 14

100 percent of the time? 15

A. I would say at least 90. 16

Q. At least 90. Okay. And you write the cease 17

and desist letters? 18

A. Yes. 19

Q. With clear instructions from the Board? 20

A. Correct. 21

Q. Okay. One of the other possible outcomes, as 22

I understand it, is a situation can be referred to the 23

Attorney General's office for an Administrative Hearing 24

Commission action; is that correct?25

42

A. On unlicensed practice cases, we usually do 1

cease and desist, and then if they continue to practice, 2

then you would go to the AG's office. 3

Q. Okay. Would -- when they -- in an unlicensed 4

practice scenario or where there is an allegation of 5

unlicensed practice, would that case ever go in front of 6

the Administrative Hearing Commission? 7

A. Not that I'm aware of. 8

Q. Okay. So the Administrative Hearing 9

Commission is only for licensed vets? 10

A. That would be my understanding. 11

Q. Okay. 12

A. I've never had a case go in front of them. 13

Q. Okay. So one of the other options is 14

referred to the Attorney General's office for an injunction 15

action; is that correct? 16

A. Yes. 17

Q. Do you remember any case, other than Brooke 18

Gray's, that has been sent to the Attorney General's office 19

for an injunction action? 20

A. We had one other case, but it was actually a 21

veterinarian who was practicing without a license. 22

Q. I see. So it was a veterinarian who was -- 23

who had been previously been licensed in Missouri, or was 24

he licensed in another state?25

43

A. Previously licensed to Missouri. 1

Q. Okay. 2

A. I think their vet -- they may have had it -- 3

no. I'm trying to think. Their vet license may not have 4

been current either. Their facility permit was not 5

current. I know that for sure. 6

Q. Okay. But as you recall, the issue in that 7

case was not competence, it was whether they had complied 8

with procedural requirements? 9

A. I think it was more procedural. 10

Q. Okay. Do you recall what year that was, 11

approximately? 12

A. No. 13

Q. Okay. 14

A. I don't. 15

Q. Don't recall whether it was early in your 16

tenure or whether it was more recent? 17

A. It was probably -- I don't -- I can't recall. 18

Q. Okay. Now, as you understand it, is it also 19

an option to refer a situation to the authorities for 20

criminal prosecution? 21

A. We've never done that. 22

Q. But is it an option? 23

A. I think we have to follow the procedure -- 24

the cease and desist and the injunction.25

44

Q. Okay. Has that procedure ever been 1

formalized? 2

A. What procedure? 3

Q. The -- 4

A. Cease and desist -- 5

Q. -- cease and desist, then injunction, then X? 6

A. I don't know. I mean, that's the procedure 7

that the Board follows. 8

Q. Okay. But you're not -- you don't know if 9

that's ever been formalized anywhere? 10

A. I -- I'm not aware of it. 11

Q. Okay. Are you aware of any part of 12

Chapter 340 that prevents the Board from pursuing criminal 13

action? 14

A. Prevents them? Without having my book in 15

front of me, I -- that just kind of slips my mind. 16

Q. Okay. When you send a cease and desist 17

letter, do you typically inform the recipient that criminal 18

prosecution is an option? 19

A. There may be a sentence in there that says 20

that. 21

MR. ROLAND: I don't have any exhibit 22

stickers, but could we mark this as Fennewald Exhibit 1? 23

(Fennewald Exhibit No. 1 was marked for 24

identification.)25

45

BY MR. ROLAND: 1

Q. Do you recognize that letter, Ms. Fennewald? 2

A. Yes, I do. 3

Q. Is that a letter that you wrote? 4

A. Yes. 5

Q. Okay. And in the last sentence of the second 6

paragraph, could you read that for me, please? 7

A. The last line or the last sentence? 8

Q. The last sentence. 9

A. If you do not cease and desist immediately, 10

the Board will consider pursuing an injunction in circuit 11

court 30 days from the date of this letter to stop the 12

conduct pursuant to Section 340.276 RSMo, and to request 13

the prosecutor to file criminal charges against you 14

pursuant to Section 340.294 RSMo. 15

Q. Okay. So you do, in fact, inform recipients 16

of these letters that criminal action is a possibility? 17

A. Yes. 18

Q. Are you aware of anything that would prevent 19

the Board from providing evidence gathered as part of its 20

investigation to prosecuting authorities in a criminal 21

action? 22

A. I -- I mean, we have never done it, so I 23

don't -- I can't really answer that. 24

Q. Are you aware of anything that would prevent25

46

the Board from doing such? 1

A. I don't see why -- I don't see anything, no. 2

Q. Okay. So to the best of your understanding, 3

the Board would be permitted to share with prosecuting 4

authorities any evidence that it gathers as part of one of 5

its investigations? 6

A. The way that the letter -- that last line 7

reads, that they can -- they can request the prosecutor to 8

file criminal charges. 9

Q. I don't know that that quite answered my 10

question, so I'd like to ask it again: To the best of your 11

knowledge, the Board could share evidence that it gathers 12

as part of one of its investigations with prosecuting 13

authorities for a criminal action? 14

A. I -- I think by the way that is wrote, they 15

could, is what my answer -- 16

Q. Okay. 17

A. -- is. 18

Q. Okay. Speaking broadly, when the Board 19

receives a complaint about either a licensed vet or a 20

nonveterinarian, does it -- does the Board keep track of 21

the types of injuries that have been alleged where animals 22

are alleged to have been injured? 23

A. No. 24

Q. Okay. So there's no way for the Board to say25

47

that one type of injury is more common than another? 1

A. No. 2

Q. Okay. And the Board does not keep track of 3

how many complainants had to euthanize their animals? 4

A. No. 5

Q. Do representatives of the Board ever offer 6

testimony on bills pending before the legislature? 7

A. If they do, they have to get special approval 8

from the Division and the Department. 9

Q. I see. 10

A. And the Governor's office, actually, also, in 11

order to testify. 12

Q. Are you aware of that ever happening? 13

A. No. 14

Q. Okay. So to the best of your knowledge, the 15

Board does not testify regarding bills before the general 16

assembly? 17

A. They -- they do not. Unless, like I said, 18

they go through that approval process. 19

Q. Does the Board ever receive information from 20

private associations, such as the Veterinary Medical 21

Association? 22

A. Do we receive information? 23

Q. Yes. 24

A. We receive correspondence and stuff from25

48

them. Yes. Newsletters. 1

Q. Okay. Are there any other types of 2

correspondence, besides newsletters, that you might receive 3

from the Veterinary Medical Association? 4

A. We try to work with the Association, so -- I 5

mean, they may send, you know, us information that they may 6

be working on or information that they received 7

regarding -- or questions that they've recently had from 8

veterinarians or -- you know, we try to have a good working 9

relationship with them, so -- 10

Q. How common would you say correspondence is 11

with the State Veterinary Medical Association? 12

A. It just kind of depends on the time of the 13

year. I mean, we may have more correspondence going back 14

and forth through, you know, legislation, annual meeting 15

time. 16

Q. Okay. Let's talk about the definition of 17

veterinary medicine. You're familiar with the definition 18

that's in Chapter 340. Correct? 19

A. Uh-huh. 20

Q. Okay. And as currently defined, veterinary 21

medicine is the science of diagnosing, treating, changing, 22

alleviating, rectifying, curing, or preventing any animal 23

disease, deformity, defect, injury, or other physical or 24

mental condition; does that sound correct?25

49

A. Uh-huh. Yes. 1

Q. Okay. So can we agree that according to this 2

definition, it is the practice of veterinary medicine to 3

diagnose an animal's injury? 4

A. Correct. 5

Q. Okay. Can we agree that it is the practice 6

of veterinary medicine to treat an animal's disease? 7

A. Yes. 8

Q. Okay. Can we agree that it's the practice of 9

veterinary medicine to rectify an animal's defect? 10

A. If that is how it's stated in there. Yes. 11

Q. Okay. Well, you -- you recall that the 12

definition specifically says "rectifying" and it 13

specifically says "an animal defect"? 14

A. Okay. 15


veterinary medicine to prevent an animal's injury? 17

A. Yeah. 18


veterinary medicine to change an animal's physical or 20

mental condition? 21

A. Like -- I can't -- you know, it's hard to 22

remember the exact words of that, but if that's what it 23

states in there, then yes. 24

Q. Okay. Are you familiar with the practice of25

50

branding animals? 1

A. I know what it is. 2

Q. Okay. So would you agree that branding an 3

animal is applying hot metal to its skin or fur and 4

creating a permanent mark on the animal? 5

A. Uh-huh. Yes. 6

Q. Okay. Would that change an animal's physical 7

condition? 8

A. I'm not a veterinarian, so -- 9

Q. Okay. 10

A. -- I would not be able to answer that. 11

Q. I'm not asking for a veterinarian's 12

interpretation, I'm asking -- based on the words of this 13

definition. 14

MR. FROWNFELTER: I'm going to object to the 15

question and the grounds that the witness is not qualified 16

as either a veterinarian or a lawyer. And so, to the 17

extent that the question attempts to solicit a position 18

from her that constitutes either a veterinary opinion of 19

the Board or a legal position of the Board, there is -- the 20

witness does not have a foundation. It's not been laid, 21

and the witness does not have the qualification to answer 22

that question. 23

MR. ROLAND: I will note two things for the 24

record. The first is that the witness has already25

51

testified that she frequently interprets these words for 1

people who call in asking questions about what constitutes 2

the practice of veterinary medicine. And secondly, I'm not 3

asking for a legal interpretation, I'm asking for a plain 4

application of the words of this statute. 5

It does not require veterinary knowledge, nor 6

does it require legal knowledge. With Mr. Frownfelter's 7

objection on the record, I will ask the question again. 8

BY MR. ROLAND: 9

Q. Does branding change an animal's physical 10

condition based on a plain meaning of the words? 11

A. If someone were to call us and ask us that, 12

we would not be able to interpret that because it is not 13

black and white in the statute. 14

Q. I understand. That is not my question. My 15

question is, based on a plain meaning of those words, does 16

branding an animal change its physical condition? 17

A. I don't know if I'm comfortable with 18

answering that question, because, as I said, we don't 19

actually interpret something that is not black and white in 20

that statute. 21

Q. I will ask again, because you have not 22

answered my question. 23

MR. FROWNFELTER: I'm going to make a 24

continuing objection that the question is irrelevant to the25

52

extent that he's asking for a personal or linguistic 1

interpretation, and it lacks a foundation. The witness 2

lacks the ability to answer to the extent that it calls for 3

either a veterinary or a legal interpretation. And that's 4

a continuing objection to all questions regarding whether 5

any particular practice in the terms of the question 6

constitutes changing an animal's condition. 7

MR. ROLAND: Mr. Frownfelter's objection is 8

noted. The question is relevant for purposes of 9

constitutional evaluation. 10

BY MR. ROLAND: 11

Q. The question is, based on a plain meaning of 12

these words, does branding an animal, in your opinion, does 13

it change an animal's physical or mental condition? 14

A. I still am unable to answer that question. 15

If I answer that question, it's only on my behalf. But as 16

I've said, we don't interpret -- if someone were to call 17

into the office and say, Branding -- we would not be able 18

to tell them that that is the practice of veterinary 19

medicine, because it is not spelled out in black and white. 20

They would have to go to the Board for a decision. 21

Q. Okay. I am not leaving this question yet, 22

but I will add, what additional information do you need for 23

the question to be black and white? 24

A. If it is not listed in the statute as a --25

53

like a -- there's several of them that are listed. If it 1

is not listed in there, we do not tell individuals that 2

that is the practice of veterinary medicine. They would 3

have to write the Board and the Board would have to make 4

that decision. And it would have to be a Board decision. 5

Q. I am asking for your opinion. I am not 6

asking you to speak for the Board. I'm asking for your 7

opinion as a lay person. Do you believe branding an animal 8

would change that animal's physical condition? 9

MR. FROWNFELTER: Continuing objection. 10

THE WITNESS: I guess branding would be -- I 11

mean, this is my own personal opinion, I'm not a 12

veterinarian. It would change their physical appearance. 13

BY MR. ROLAND: 14

Q. Okay. Again, asking for your opinion, based 15

on a plain meaning of these words -- let me step back. 16

Are you familiar with the process of 17

dehorning animals? 18

A. I've heard of it, but I don't know the 19

procedure. I don't know -- 20

Q. Okay. 21

A. -- I don't know what they do. 22

Q. So if someone talked about dehorning an 23

animal, you would not know what they were talking about? 24

A. I -- common sense would tell me what -- that25

54

they were somehow or other de-- getting rid of the horns, 1

but I don't -- I don't know if that is accurate. 2

Q. So my question to you then would be, as a lay 3

person, your own opinion, applying the ordinary meaning of 4

these words, would it change an animal's physical condition 5

to saw off horns? 6


THE WITNESS: There again, if someone were to 8

call, my same response as earlier, we would not be able to 9

provide them with that information. But as an individual, 10

I would assume that that would have changed their 11

appearance. 12

BY MR. ROLAND: 13

Q. Are you familiar with the practice of 14

castration? 15

A. Yes. 16

Q. Okay. Would you disagree with me that that 17

involves cutting off the testicles of an animal? 18

A. Yeah. 19

Q. Okay. I'm asking for your own opinion, based 20

on an ordinary understanding of these words, would 21

castrating an animal alter the animal's physical condition? 22


THE WITNESS: That would be a surgical 24

procedure in my mind, so it would alter the animal.25

55

BY MR. ROLAND: 1

Q. It would change their physical condition? 2

A. It would change them, but it would be a 3

surgical procedure that would have to be done on that 4

animal. 5

Q. My question is, based on an ordinary 6

understanding of the words, would it change the animal's 7

physical condition? 8

A. It would change their physical condition, I 9

guess. 10

Q. Okay. Are you familiar with the practice of 11

trimming animal's hooves? 12

A. Uh-huh. 13

Q. Okay. Would you agree that that means you 14

are cutting parts off of the hoof? 15

A. I assume, yes. 16

Q. Okay. Based on a plain ordinary meaning of 17

the words, asking for your opinion as a lay person, does 18

cutting parts off of an animal's hoof change that animal's 19



THE WITNESS: I would assume. 22

BY MR. ROLAND: 23

Q. Are you familiar with the practice of shoeing 24

horses?25

56

A. Yes. 1

Q. Based on a plain meaning of these words, 2

would nailing metal shoes to a horse's hoof constitute 3

changing that animal's physical condition? 4


THE WITNESS: I guess if you're adding 6

something to their body it would. 7

BY MR. ROLAND: 8

Q. Okay. Have you ever received questions about 9

whether horse shoeing constitutes the practice of 10


A. I have not, personally. 12

Q. Are you aware of anyone who has received 13

questions about whether shoeing horses is the practice of 14


A. No, I'm not. 16

Q. If you received a call from someone asking 17

whether shoeing horses was the practice of veterinary 18

medicine, what would your answer be? 19

A. We would have to have them write to the 20

Board, and they would have to -- the Board would have to 21

make that decision. 22


tail docking? 24

A. I've heard of it.25

57

Q. Okay. Would you disagree that it is cutting 1

off part of an animal's tail? 2

A. No. 3

Q. Okay. Asking for your personal opinion, with 4

the words used in their ordinary meaning, is cutting off 5

part of an animal's tail changing that animal's physical 6

condition? 7


THE WITNESS: I would assume, yes. 9

BY MR. ROLAND: 10


notching ears? 12

A. I've heard of it. 13

Q. Okay. Would you disagree that notching an 14

ear is cutting off part of the animal's ear? 15

A. I assume that's what they do. I have not 16

seen the procedure. 17

Q. Okay. If notching an animal's ear is cutting 18

off part of an animal's ear, using the ordinary meaning of 19

the words, would that constitute changing an animal's 20



THE WITNESS: I guess. 23

BY MR. ROLAND: 24

Q. Are you familiar with cutting animal's nails?25

58

A. Trimming their nails? Yeah. 1

Q. Okay. You know that this is frequently done 2

to dogs and cats? 3

A. Uh-huh. 4

Q. Okay. Using the ordinary meaning of the 5

words, is cutting an animal's nails changing that animal's 6



THE WITNESS: I guess, yes. 9

BY MR. ROLAND: 10

Q. Using the ordinary meaning of the words, 11

would cutting an animal's fur or hair change the animal's 12



THE WITNESS: I don't think it would -- their 15

physical appearance, but I'm -- I don't see where this is 16

relevant. 17

BY MR. ROLAND: 18

Q. It's relevant because the constitution asks 19

what the plain meaning of words are sometimes, especially 20

when there are questions about how laws are going to be 21

applied. So the relevance is in you, as a lay person, 22

hearing these words and what your understanding of them 23

would be. So I hope that that clarifies why this is 24

relevant, because we have raised constitutional issues in25

59

this case. 1

You mentioned earlier that -- and correct me 2

if I'm not remembering this properly, but you said that you 3

don't recall making distinctions between activities that 4

are done for compensation and activities that are not done 5

for compensation. Am I remembering correctly your 6

testimony on that point? 7

A. If we get phone calls, we don't ask if it's 8

for compensation. 9

Q. Okay. So when you receive one of those phone 10

calls, do you assume that there is compensation? Is that 11

why you don't ask? 12

A. We don't -- we just don't ask. I don't -- 13

it's just not something that we do. 14

Q. Okay. So an ordinary citizen calling in with 15

a question about the practice of veterinary medicine might 16

be left with the impression that any of these activities 17

could constitute the practice of veterinary medicine, 18

regardless of whether any compensation trade -- changes 19

hands? 20

A. The questions that you just asked me? 21

Q. Or any of the questions that you get about 22

the practice of veterinary medicine? 23

A. If it's the question that is not listed in 24

there, they go to the Board, and the Board answers those25

60

questions. So that would be something that the Board may 1

include in their response to that individual. I mean, 2

it's -- we don't -- it's not something that anybody that 3

calls up we ask are they getting paid for it. I mean, 4

that's not a typical thing that we do. 5

Q. Okay. Have you ever known the Board to take 6

a position on whether compensation is a factor in 7

determining whether something is the practice of veterinary 8

medicine? 9


Q. So as far as you know, the Board's position 11

might well be that any person who performs these acts would 12

be practicing veterinary medicine, even if they're not 13

getting paid for it? 14

A. I would say it would depend on the situation. 15

Q. Okay. 16

A. I mean, I don't know. You have to have 17

specific situations, so -- I would -- typically, they would 18

probably have to be compensated for it. 19

Q. Okay. Based on what? 20

A. Based on what -- I'm confused. 21

Q. Well, you said, "typically, they would have 22

to be compensated for it" and so I'm asking why typically 23

would they have to be compensated for it? 24

A. I don't know.25

61

Q. Okay. We appear to have some confusion and 1

I'll just let that go. So am I understanding that your 2

testimony is that a citizen simply could not know whether 3

they would be breaking the law by performing one of these 4

acts unless they specifically ask the Board for a ruling on 5

whether compensation was a necessary element for the 6

practice of veterinary medicine? 7

A. I'm saying that if an individual calls our 8

office and asks if that is the practice of veterinary 9

medicine and it is not listed in our practice act, the 10

Board would have to be the one to respond to that 11

individual. And however they vote to send that response is 12

how that individual would find out if it is the practice of 13

veterinary medicine. 14

Q. Okay. So they would not know for sure until 15

the Board issued its -- 16

A. Decision. 17

Q. -- decision? Okay. Now my understanding is 18

that you treat working on a horse's teeth as something 19

specifically set out in the practice of veterinary 20

medicine; is that correct? 21

A. Dentistry. 22

Q. Okay. Does -- in your understanding, does 23

dentistry apply to anything that's done on the teeth? 24

A. I mean, as far as the practice act, I think25

62

there's a definition of dentistry in there. 1

Q. Okay. But your understanding and the 2

understanding that you convey to people who call with 3

questions, is that anything they do with an animal's teeth 4

would be considered the practice of veterinary medicine, 5

regardless of whether any compensation takes place? 6

A. I think that there is a clause in our rules 7

that there may be some things that -- like a technician can 8

do that's not considered the practice of veterinary 9

medicine. So we would have to get the information to 10

further determine what they were doing to see if we could 11

help them or if that would have to be something that the 12

Board would have to determine. 13

Q. Okay. Let's try some hypotheticals to try 14

and put meat on the bones here. Let's say that there is 15

Farmer Brown, and Farmer Brown has six horses. To the best 16

of your understanding, does Chapter 340 allow Farmer Brown 17

to float his own horses' teeth? 18

A. You can do anything you want with your own 19

horses. 20

Q. Okay. So just to clarify, Farmer Brown would 21

be permitted to float his own horses' teeth? 22

A. He can float his own horses' teeth. 23

Q. Okay. To the best of your understanding, 24

does Chapter 340 allow Farmer Brown to have one of his25

63

full-time employees float his horses' teeth? 1

A. I don't think so. 2

Q. Okay. If a citizen called in with that 3

question, would you refer them to the Board, or would you 4

simply say that would be the practice of veterinary 5

medicine and is not allowed? 6

A. If he's having his employee? 7

Q. Yeah. A full-time employee floating his 8

horses' teeth. 9

A. We would probably have Board clarification on 10

it just to make sure. 11


does Chapter 340 permit Farmer Brown to have his neighbor 13

come over and float his teeth, assuming there's no 14

compensation involved? 15

A. That would be something too that we would 16

have to have the Board look at. 17

Q. So the only way that Farmer Brown could know 18

if this is permissible, is to contact the Board with a 19

formal question and then wait for them to answer it? 20

A. Correct. 21


does Chapter 340 permit Farmer Brown to pay a licensed 23

veterinarian to float his horses' teeth? 24

A. He could pay a veterinary to float his teeth.25

64


does Chapter 340 permit Farmer Brown to have a specially 2

trained floater, with decades of experience and a perfect 3

safety record, float his horses' teeth, as long as no money 4

changes hands? 5

A. I don't believe that they could. No. 6

Q. Okay. Even if no money changes hands? 7

A. It would be my opinion, but that would have 8

to be up to the Board. I would say no, but it would have 9

to be up to the Board. 10

Q. Okay. Has the Board made a determin-- a 11

determination on this question? 12

A. That they can't do it? 13

Q. Yeah, that -- have they addressed this 14

question whether Farmer Brown or any animal owner could 15

have a very experienced, you know, nonveterinarian with a 16

perfect safety record perform services for no compensation? 17

To the best of your knowledge, the Board has not addressed 18

that question? 19

A. They may have addressed it. 20

Q. But you're not aware if they have? 21

A. I mean, I don't know about the no 22

compensation. I mean, I think they've discussed that, but 23

I do not recall what their outcome was. 24

Q. Okay. And so, if someone called in with that25

65

question, you would automatically refer them to the Board? 1

You would not look at the records of the Board's 2

deliberations to see if they've already answered this 3

question? 4

A. Typically, these questions are not every day 5

type questions. So we would put -- have them -- and each 6

situation is different, so they would go to the Board. 7

Q. So even if the Board had answered a similar 8

question one way, if you present them a slightly different 9

set of facts, they may have a completely different outcome? 10

A. No, typically, they're pretty consistent with 11

their answers, but each situation is different, so, I mean, 12

we can tell them this is typically what the Board has said, 13

if you would like to write in, then you may write in. 14

Q. Okay. So is it your understanding that the 15

Board has rendered decisions about animal massage and 16

whether that constitutes the practice of veterinary 17

medicine? 18

A. I believe they've indicated that they have to 19

be under the immediate supervision of a licensed 20

veterinarian in order to do it. 21

Q. Okay. So -- so the Board has decided that it 22

is unlawful for a nonveterinarian to provide animal massage 23

without the direct supervision of a licensed vet; is that 24

correct?25

66

A. Immediate supervision. 1

Q. Immediate supervision. Okay. To the best of 2

your knowledge, has the Board rendered a decision in 3

regards to castrating animals? 4

A. It would be a -- it is my understanding it's 5

a surgical procedure. 6

Q. Okay. So are you aware of the Board 7

rendering a decision on this, or is that just a hunch? 8

A. I'm -- it's just a hunch. I am assuming that 9

if it's a surgical procedure, it's listed in the 10

definition -- surgery. 11

Q. So your understanding is that a rancher would 12

not be permitted to go out and find some hired hands to 13

help them cut cattle without the direct supervision of a 14

licensed vet? 15

A. I -- it would be -- it would have to be under 16

the immediate supervision, but I don't -- since it's a 17

surgical procedure, I don't know if they could even do 18

that. I don't know. 19

Q. Okay. 20

A. We haven't talked specifically about 21

castrations. 22

Q. Okay. And again, the only way to have this 23

question resolved is for someone to submit that question in 24

writing to the Board and let them deliberate on that?25

67


Q. So what you're saying is, that question 2

cannot be answered simply by reading the language of the 3

statute? 4

A. If it is -- we can read them the definition, 5

but if it's not -- if they're asking specifically about 6

castrations -- I mean, they may want to have -- write the 7

Board. 8

Q. Okay. But you're saying you could not answer 9

that question without putting it before the Board? 10

A. I would not feel comfortable answering that 11

question if someone called up and said, I'm Farmer whoever, 12

and I have a bunch of cows that I want my neighbor to do. 13

I would not feel comfortable telling him that that was okay 14

to do without the Board's directive. 15

Q. Okay. Do you recall any specific procedures 16

that have been brought before the Board, where the Board 17

has said this is not the practice of veterinary medicine? 18


Q. Okay. Do you know if there is any way to 20

find that information? 21

A. The only way would be to go through the 22

minutes. 23

Q. Okay. So just to be clear, it is your 24

testimony, as the Executive Director of the Missouri25

68

Veterinary Medical Board, that it might well be illegal for 1

nonveterinarians to castrate animals? 2

MR. FROWNFELTER: Objection to the extent 3

that the witness, a nonlawyer, is being asked to offer an 4

opinion on legality. There isn't a foundation, and she 5

doesn't have the qualification to answer that. 6

MR. ROLAND: My response for the record is 7

that this is the only representative of the Board of 8

Veterinary Medicine that has been provided to us to answer 9

these questions. It has already been testified that the 10

executive director does answer questions about legality, 11

and so the foundation has been laid for this particular 12

question. You may answer. 13

THE WITNESS: Can you repeat the question. 14

BY MR. ROLAND: 15

Q. Yes. Is it your testimony, as the Executive 16

Director of the Missouri Veterinary Medical Board, that it 17

may well be illegal for a nonveterinarian to castrate 18

animals? 19

A. To castrate others' animals. You could -- 20

you can do whatever you want to your own animals. 21

Q. Okay. It is your testimony, as the Executive 22


would be -- or could be illegal for a farmer to hire 24

someone to -- a nonveterinarian, to castrate their animals?25

69


THE WITNESS: I would say it could be, yes. 2

BY MR. ROLAND: 3

Q. Okay. It is your testimony, as the Executive 4


could be illegal for a rancher to hire someone to brand 6

their animals? 7


THE WITNESS: We don't -- the branding issue 9

we've not -- we do not have questions about that, so I 10

really cannot hardly answer that. 11

BY MR. ROLAND: 12

Q. I'm -- I'm not asking if this is a matter 13

that's been resolved, I'm asking if it's your testimony 14

that it is entirely possible that the Board might decide 15

that it is illegal. 16

A. I guess the Board can -- could decide that it 17

would be illegal. I -- I mean, it's not something that has 18

been brought to our attention. 19

Q. Okay. So you don't see anything in the 20

statutory language that puts this out of the question? 21

A. I don't -- I mean, it could be illegal, yes. 22

Q. And the same thing could be said for tail 23

docking; is that correct? 24

MR. FROWNFELTER: Continuing objection.25

70

THE WITNESS: I guess. 1

BY MR. ROLAND: 2

Q. And the same thing could be said for 3

dehorning? 4


THE WITNESS: I -- I'm assuming. 6

BY MR. ROLAND: 7

Q. And the same thing could be said for trimming 8

animal's hooves? 9


THE WITNESS: I -- yeah. 11

BY MR. ROLAND: 12

Q. And the same thing could be said for horse 13

shoeing? 14


THE WITNESS: Yeah. 16

BY MR. ROLAND: 17

Q. And the same thing could be said for trimming 18

an animal's nails? 19


THE WITNESS: I'm assuming. Yes. 21

BY MR. ROLAND: 22

Q. And the same thing could be said for cutting 23

an animal's hair or fur? 24

MR. FROWNFELTER: Continuing objection.25

71

THE WITNESS: I could -- that is to me -- to 1

me, personally, that one is just -- I cannot imagine that 2

the Board would think that it would be illegal, but I guess 3

anything is possible. 4

BY MR. ROLAND: 5

Q. How do you distinguish cutting an animal's 6

fur or hair from -- 7

A. I don't. 8

Q. Okay. You just testified that there is 9

something about that that is different in your mind from 10

these other practices. 11

A. But I'm not -- I don't make that decision. 12

I'm saying, in my mind, that I don't understand why that's 13

in there. That's all I'm saying. 14

Q. You don't understand why -- 15

A. Why you're bringing that -- I know it's 16

changing the physical appearance or condition or whatever 17

you said, but it's -- I'll just answer the question yes. 18

MR. ROLAND: Okay. I think that's all the 19

questions I have for now. 20

MR. FROWNFELTER: I have nothing. 21

(Off the record.) 22

(PRESENTMENT WAIVED; SIGNATURE REQUESTED.) 23

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C E R T I F I C A T E 1

2

I, Janna L. Tayon, a Certified Court Reporter, CCR 3

No. 1260, the officer before whom the foregoing deposition 4

was taken, does hereby certify that the witness whose 5

testimony appears in the foregoing deposition was duly 6

sworn by me; that the testimony of said witness was taken 7

by me to the best of my ability and thereafter reduced to 8

typewriting under my direction; that I am neither counsel 9

for, related to, nor employed by any of the parties to the 10

action in which this deposition was taken, and further that 11

I am not a relative or employee of any attorney or counsel 12

employed by the parties thereto, nor financially or 13

otherwise interested in the outcome of the action. 14

15

16

17

______________________________ 18

Janna L. Tayon, CCR

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Tiger Court Reporting, LLC 1

3610 Buttonwood Drive, Suite 200

Columbia, Missouri 2

573.886.8942

3

September 16, 2011 4

Ms. Dana Fennewald 5

c/o Missouri Veterinary Board

3605 Missouri Boulevard 6

Jefferson City, Missouri 65109-7111

7

In Re: Missouri Vet Bd. vs. Gray, et al.

8

Dear Ms. Fennewald:

9

Please find enclosed the copy of your deposition, taken on

September 7, 2011, in the above-referenced case. Also 10

enclosed is the original signature page and errata sheet.

11

Please have read the copy of the transcript, indicate any

changes and/or corrections desired on the errata sheet, and 12

sign the signature page before a Notary Public.

13

Please send the errata sheet and notarized signature page

to Mr. Dave Roland, Freedom Center of Missouri, 14

5938 De Giverville Avenue, St. Louis, Missouri, 63112, for

filing prior to the trial date. 15

Thank you for your attention to this matter. 16

Sincerely, 17

18

Janna L. Tayon, Certified Court Reporter

19

Enclosure

cc: Mr. Dave Roland 20

Mr. Edwin Frownfelter

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STATE OF _________________) 1

COUNTY OF ________________) 2

I, Dana Fennewald, do hereby certify: 3

That I have read the foregoing deposition; 4

That I have made such changes in form and/or 5

substance within the deposition as might be necessary to 6

render the same true and correct; 7

That having made such changes thereon, I hereby 8

subscribe my name to the deposition. 9

I declare under penalty of perjury that the 10

foregoing is true and correct. 11

12

Executed this ______ of __________, 2011, at ____

13

__________________________________________________________

14

__________________________ 15

Notary Public

16

My commission expires:___________________________ 17

18

___________________________ 19

Dana Fennewald

20

Signature page to Mr. Roland 21

JLT/DF 09/16/11

Mo Vet Bd. vs. Gray, et al. 22

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WITNESS ERRATA SHEET 1

Witness Name: Dana Fennewald 2

Case Name: Missouri Vet Bd. vs. Gray, et al.

Date Taken: September 7, 2011 3

Page: Line: Should read: 4

Reason for change:

5

Page: Line: Should read:

Reason for change: 6


Reason for change:

8




Reason for change:

11




Reason for change:

14




Reason for change:

17




Reason for change:

20




Reason for change:

23

Reporter: Janna L. Tayon, CCR

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COURT MEMO 1

IN THE CIRCUIT COURT OF CLINTON COUNTY

STATE OF MISSOURI 2

MISSOURI VETERINARY MEDICAL BD. ) 3

vs. ) Case No. 10CV-CV00842

BROOKE R. GRAY, et al. ) 4

CERTIFICATE OF OFFICER AND 5

STATEMENT OF DEPOSITION CHARGES

(Rule 57.03 (g) (2) (a) & Sec., 492.590 RSMO 1985) 6

DEPOSITION OF DANA FENNEWALD 7

Taken on Behalf of Defendant

September 7, 2011 8

Name and address of person or firm having custody of the 9

original transcript: Mr. Dave Roland

Freedom Center of Missouri 10

5938 De Giverville Avenue

St. Louis, MO 63112 11

TAXED IN FAVOR OF: Mr. Roland .......... TOTAL: $__________ 12

TAXED IN FAVOR OF: Mr. Frownfelter.......TOTAL: $__________ 13

14

Upon delivery of transcripts, the above charges had not

been paid. It is anticipated that all charges will be paid 15

in the normal course of business.

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Documents

Deposition of Dana Fennewald, Executive Director of Missouri Veterinary Medical Board