The Problem Of Using "Old Westerns Rather Than Expert Testimony To Estblish The Standard Of Care"

In private security contractor's negligence suit for injuries suffered in Afghanistan, allegedly as a result of the defendant transit service's negligence in providing security measures, summary judgment for defendant was appropriate when the plaintiff could not provide, as required by "state" law, an expert witness to testify on the expected standard of care applicable to the case, in Burke v. Air Serv Intern., Inc. __ F.3d __ (D.C. Cir. July 13, 2012)

In Erie Railroad Co. v. Tompkins, the Supreme Court clarified that “state law governs substantive issues” in federal diversity cases but that federal law would apply to the procedures used there. The key puzzle of Erie concerned where to draw the line between matters of substance from matters of procedure. Erie explained the dual aims to this state(substance)/federal(procedure) distinction. Not only was Erie designed to hinder forum-shopping between state and federal courts, but it was expected that this would preclude any inequitable administration of the laws. Accordingly, the FRE would be applied in federal court except when an issue of substantive state law arises. In a recent case, the D.C. Circuit examined this substance/procedure distinction of Erie. While other federal circuits have covered some of this same territory, this seemed to be a matter of first impression for the D.C. Circuit.

In the case, plaintiff Burke had been a British soldier and was injured as a private contractor working in Afghanistan. His "severe[] wound[]" was the result of an ambush there and he sued defendant Air Services, alleging that it negligently failed to provide appropriate security for the trip the defendant supplied. The district court granted summary judgment to the defendant because Burke would not proffer expert testimony on the applicable standard of care required in making security precautions for travel. Because the applicable law -- that of the District of Columbia -- required expert testimony in standard of cares, the plaintiff's failure to present such evidence was fatal to his case. The plaintiff disagreed and sought review by the D.C. Circuit.

The plaintiff's main bone of contention with the trial judge was that the plaintiff did not think he needed to present an expert witness to testify as to the standard of care owed by the defendant Air Service. But the D.C. Circuit, while expressing an admiration of the plaintiff's military career and services, noted an important gap in his legal judgment. It disagreed noted that the applicable standard of care could be derived by lay jurors, for example, based on films:

“every juror will have seen” such films as High Noon. Perhaps. But even if they have, we are puzzled about what they could have learned from those films that would have been helpful to Burke’s case. After all, Marshal Kane (Gary Cooper) did not helicopter to his confrontation with the Miller gang. Nor did he carry, as Burke did, a 9-mm. pistol and AK-47 assault rifle. No, Kane walked to the fateful encounter protected only by two revolvers and a tin star. Moreover, he did so notwithstanding that the meeting could hardly have been regarded as an ambush: as the film’s title makes clear, each side knew precisely what time the showdown would take place.
Burke, __ F.3d at __.

The lessons the circuit drew from the movies was neither clear nor obvious. The circuit marveled that

Burke insists -- in all seriousness -- that lay jurors could have intuited the proper standard of care from their knowledge of old Westerns. “Afghanistan,” he explains, “is comparable to the old ‘Wild West’ -- lawmen, builders, farmers, ranchers, schoolteachers, entering savage areas subject to armed marauders and trying to establish peace, civilization and the rule of law.” Because “[e]very juror will have seen Gunsmoke or High Noon or the Outlaw Josey Wales or Lonesome Dove,” every juror will know the proper standard of care.

We do not understand what relevant standard of care jurors could have gleaned from these Westerns, let alone how it could have benefited Burke. As to the first point, it seems plain that films in which the heroes rode horses and carried six-shooters can tell the jury little about whether helicopters should be equipped with satellite radios and bulletproof blast mats, or whether security personnel should be equipped with body armor.
Burke, __ F.3d at __

But it was not the plaintiff's reliance on old movies that doomed his case. To do as the plaintiff suggested and fore go expert standard of care evidence would risk violating Erieas well. Essentially, "the Erie doctrine is fatal to his alternative contention that we should disregard D.C.’s expert testimony requirement altogether," the circuit concluded. Burke, __ F.3d at __. The Circuit then adopted an approach to the substantive/procedural distinction that other circuits have struggled with as well. The circuit noted that failing to enforce the District of Columbia expert testimony rule in the plaintiff's case

would undermine the twin aims of Erie. There will certainly be tort cases involving areas of scientific or professional expertise in which plaintiffs will be unable to find (honest, qualified) experts who will testify that the defendants violated the relevant scientific or professional standards. If brought in D.C. Superior Court, such a case would be dismissed without ever getting to the jury. If we were to refuse to enforce the D.C. expert testimony requirement, however, the same case would reach the jury if brought in federal district court. Such a result would be outcome-determinative in the relevant sense. It would be likely to “cause [the] plaintiff to choose the federal court.” And it would constitute “an ‘inequitable administration’ of the law” because an action based on D.C. law, which would be dismissed in D.C. Superior Court, would “proceed through litigation to judgment in federal court solely because of the fortuity that there is diversity of citizenship between the litigants.” Accordingly, we must enforce the D.C. rule and affirm the judgment of the district court.
Burke, __ F.3d at __ (footnotes omitted)

The D.C. Circuit noted that in taking this position, it was similar to other circuits that "have applied similar state rules under Erie, including:

  • In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 750-51 (3d Cir. 1994) (holding that a Pennsylvania rule, requiring experts to testify about causation with a “reasonable degree of medical certainty,” is “an element of [the] plaintiff’s burden of proof” and therefore a “substantive” rule that “governs in federal court”)
  • Milam v. State Farm Mut. Auto. Ins. Co., 972 F.2d 166, 170 (7th Cir. 1992) (“[W]here a state in furtherance of its substantive policy makes it more difficult to prove a particular type of state-law claim, the rule by which it does this, even if denominated a rule of evidence or cast in evidentiary terms, will be given effect in a diversity suit as an expression of state substantive policy.”)
  • Hemingway v. Ochsner Clinic, 722 F.2d 1220, 1225 n.10 (5th Cir. 1984) (“[W]e find that the [rule requiring expert testimony to prove the standard of care] is so closely interrelated with the substantive cause of action of malpractice in Louisiana that federal courts sitting in diversity cases should apply the state rule in order to fully realize state substantive policy.”).

Photo: Theatrical Poster for the 1952 Stanley Kramer Prod/United Artists Western starring Gary Cooper (as town marshal who had to confront his opponents alone). The film is in the United States National Film Registry, noted by the Library of Congress as "culturally, historically, or aesthetically significant." Copyright probably held by the film company (Stanley Kramer Prod/United Artists) or the artist. Fair Use is intended of the poster as an illustration for this well known and significant film, which the court cited and discussed in the reported opinion.As this image is used on many other sites (e.g.,, this use will not make it significantly more accessible or visible than it already is, nor detract from the original and is used here for information purposes only and to suggest something of the film's style and content.


Federal Rules of Evidence