Admissibility Of Expert Testimony Based On "Aspirational" Standards

A key issue in assessing the admissibility of an expert's testimony concerns whether the proposed testimony involves "scientific, technical, or other specialized knowledge." Can "aspirational" standards be considered knowledge that is scientific, technical or specialized? The Seventh Circuit suggests that the aspirational nature of standards applied by the expert will not necessarily place it outside the scope of admissibility under FRE 702, in Lees v. Carthage College, 714 F.3d 516 (7th Cir. April 16, 2013) (No. 11-3061)

The Carthage College case involved a private college that was sued by a former student who had been raped in her dorm room by men whom she believed were also students of the college. The suspects were never located or identified, Lee withdrew from the College, and filed a diversity suit charging that the college had been negligent in its maintenance of campus facilities for student safety. Carthage College, 714 F.3d at 518-19.

Expert Testimony On College Security

As part of her burden to show the negligence of the college the plaintiff sought to introduce expert testimony regarding the applicable standard of care for college security under FRE 702. She secured testimony by "a premises-security expert who has long served as a professor of criminal justice and security administration at the University of Detroit." Apparently there was no dispute as to the expertise of the witness, Dr. Kennedy. The expert witness noted deficiencies in the student facilities, including "the lack of a prop alarm on the basement door; the failure to staff the lobby between midnight and 2 a.m. on weekends," the facilities' "open-door policy; the lack of a policy requiring guests to be escorted to the rooms of students ... and the lack of security cameras. Dr. Kennedy also stated that Carthage in many respects fell short of the recommended practices published by the International Association of Campus Law Enforcement Administrators (“IACLEA”). Carthage College, 714 F.3d at 519-20.

The defendants objected to the admission of this testimony, contending that it failed to establish the applicable standard of care from which the defendant, allegedly, had negligently departed. The defendant moved for summary judgment, contending that the failure to prove the applicable standard of care doomed the plaintiff's cause. The trial judge agreed, excluded the expert and granted summary judgment to the college. One reason for excluding Dr. Kennedy's testimony was that the judge concluded that his evidence was "unreliable," as it "improperly relied" on the International Association of Campus Law Enforcement Administrators ("IACLEA") standards, "which were merely recommended and aspirational and did not necessarily account for variation among different types of academic environments. " Carthage College, 714 F.3d at 524.

Circuit Assessment

The Seventh Circuit disagreed that the "aspirational" nature of the IACLEA standards rendered them useless in understanding the negligence standard of care that should be applied in the case. According to the circuit:

[T]here is no question that these [IACLEA standards are] guidelines, standing alone, [and] do not establish the standard of care. As the district court noted, they are only aspirational practices, not a formal industry standard; even formal industry standards are not dispositive as to negligence liability. But the relevant question for admissibility purposes is not whether the IACLEA guidelines are controlling in the sense of an industry code, or even how persuasive they are. It is only whether consulting them is a methodologically sound practice on which to base an expert opinion in the context of this case. For a claim of this nature, we are convinced that it is. The IACLEA guidelines are an authoritative set of recommended practices specific to the field of campus security and are regularly consulted by campus-security professionals.

Carthage College, 714 F.3d at 524-25.

In finding that the testimony was not excludable simply because the standard it articulated was "aspirational," the circuit also noted that the IACLEA standards were not the only basis of the witness's opinion as to the standard of care. Dr. Kennedy's testimony was based on a number of elements one would use to assess campus security, such as a review of "witness statements, including the testimony of Carthage's former director of security." The expert also made a site visit to "inspect[] the security conditions at [site of the rape] Tarble Hall; reviewed the various security protocols at Tarble and Carthage generally." Much of the formation of his opinion involved paper-work, such as reviewing "published statistics and police reports involving sexual assault on campus; compar[ing] Carthage's practices with those recommended in the IACLEA guidelines; and survey[ing] the professional literature on sexual assault and campus-security practices. Drawing from this investigation and his experience and expertise, Dr. Kennedy identified the standard of care for college premises security and concluded that Carthage's practices fell short of that standard in numerous respects." Carthage College, 714 F.3d at 524-25.

Matter of Weight Not Admissibility

While the circuit acknowledged that there were a number of problems with Dr. Kennedy's testimony, they were not sufficient to exclude the evidence. Rather, problems with the data available for the expert's use, just like his use of the IACLEA standards formed a solid foundation for weighing the evidence. "Carthage may argue," noted the circuit, "that the IACLEA guidelines are only advisory, or outdated, or overly general, and for those reasons should not be taken as persuasive on the standard of care. But that argument goes to the weight of the expert's testimony, not its admissibility. The district court abused its discretion in excluding this part of Dr. Kennedy's testimony." Carthage College, 714 F.3d at 525.

Conclusion

One interesting aspect of the Carthage College case is that in assessing the applicability of aspirational standards, the circuit seemed to use a rough version of the Frye test which FRE 702 superseded. This was a standard that examined whether the proffered expert evidence had "gained general acceptance" in the relevant scientific community. In Carthage College the circuit noted the test of admissibility required assessing whether the standard was "a methodologically sound practice on which to base an expert opinion" as demonstrated by their use as "an authoritative set of recommended practices specific to the field of campus security and ... regularly consulted by campus-security professionals."

______________________________

Subscribe Now To The Federal Evidence Review

** Less Than $25 Per Month ** Limited Time Offer **

subscribe today button

Federal Rules of Evidence
PDF