Lees v. Carthage College: A Seventh Circuit Decision on the Admissibility of Expert Testimony for the Standard of Care
The Seventh Circuit recently issued two opinions with interesting evidentiary issues. We wrote about the multiple levels of hearsay in Jordan v. Binns, No. 11-2134 (7th Cir. Apr. 4, 2013), last week. And, this week, the court’s decision in Lees v. Carthage College, No. 11-3061 (7th Cir. Apr. 16, 2013), reversed part of a district court’s decision about the admissibility of an expert’s testimony.
Lees was the victim of a rape by intruders in her freshman dorm room while she was a student at Carthage College, but a summary-judgment motion felled her negligence action when the district court excluded the testimony of her premises-security expert, Dr. Daniel Kennedy. Without it, she lacked the evidence necessary to prove her claim under Wisconsin law.
The crux of the issue was whether Kennedy’s testimony was reliable evidence of the standard of care for Carthage College. The district court thought it wasn’t.
To prepare his opinion Kennedy had (1) reviewed the college’s investigation into Lees’s rape, (2) reviewed Carthage’s security protocols and statistics and police reports for sexual assault on campus, (3) inspected the dorm, (4) compared Carthage’s security practices with guidelines from the International Association of Campus Law Enforcement Administrators, a group concerned with premises-security issues, and (5) surveyed the professional literature.
As a result of all this, Kennedy was prepared to testify that Carthage had not met the standard of care, specifically, by not installing a prop alarm (which would sound if a door was ajar) on a basement door of the dormitory, not staffing the dorm’s lobby from midnight to 2 a.m., not instructing staff to escort visitors, not using security cameras, and not advising students to close their doors when they were not socializing, especially in the middle of the night on a weekend.
The district court found two things objectionable in all this: reliance on the IACLEA guidelines, which it believed were purely aspirational, and Kennedy’s failure to distinguish between acquaintance rape and stranger rape when he reviewed recent sexual assaults on Carthage’s campus.
The Seventh Circuit found an abuse of discretion in part of this. Whether or not the IACLEA guidelines were aspirational, consulting them was “a methodologically sound practice on which to base an expert opinion” in a field that was “nonscientific” and would “not easily admit of rigorous testing and replication.” On cross-examination, Carthage can criticize the guidelines for a variety of reasons (they were only advisory, outdated, or overly general), but that has nothing to do with admissibility. Leave it to the jury to hear those arguments and to decide what weight to afford Kennedy’s testimony.
Likewise, the Seventh Circuit did not believe that Kennedy’s opinion could be faulted for failing to consider “community standards” — in other words, for failing to compare Carthage with only similarly sized schools near Carthage. In fact, doing so might have been inappropriate, since Wisconsin does not follow a locality rule for professional negligence.
The Seventh Circuit agreed with the district court’s criticism of Kennedy’s opinion for failing to distinguish between acquaintance and stranger rape. What’s more, it found that his testimony about the failure to staff the lobby, the failure to advise students to close their doors, lax hall monitoring, and the lack of security cameras was not supported in the record by sufficient experiential data. So the district court had not abused its discretion there.
But testimony about the IACLEA standards and the prop alarm (something recommended specifically in the standards) was “directly relevant” to the case and to its central issue — whether Carthage had met its standard of care.
This is the rare case of an appellant’s winning a case when the trial court’s decision is reviewed for an abuse of discretion. The case was sent back for trial.