Expert Testimony Restored

A federal appeals court finds a lower court should not have excluded expert testimony in a case in which a student sued her college for negligence.

April 17, 2013

A federal appeals court on Tuesday reinstated a former student's negligence lawsuit against Carthage College, saying that a lower court had incorrectly deemed an expert witness's testimony to be inadmissible.

Katherine Lees, the plaintiff in the case, was sexually assaulted by two men in her dorm room after midnight on Sept. 21, 2008 -- weeks into her freshman year at Carthage, a private liberal arts institution in Kenosha, Wis. The two men were never identified. Lees later withdrew from the college and brought the negligence suit against Carthage and its insurer, Lexington Insurance Company.

Both parties agreed that Lees had to prove her case through expert testimony. Lees’s lawyers offered the testimony of Daniel Kennedy, professor emeritus of criminal justice studies at the University of Detroit Mercy. Kennedy testified that there were “numerous security deficiencies at Carthage,” specifically in Tarble Hall, the all-female dormitory where Lees was living. While students are only able to access the building by swiping their student IDs, he noted that a door in the building’s basement could be propped indefinitely without setting off an alarm.

Kennedy also pointed out that Carthage had a history of sexual assaults leading up to Lees’s case -- eight between 2003 and 2008. Based on data on sexual assault, Kennedy said Lees, who is deaf, is four times more likely than other women to be the victim of rape.

A federal district court judge in Wisconsin granted summary judgment to Carthage and excluded Kennedy’s testimony under Rule 702 of the Federal Rules of Evidence because “he had relied on industry standards that were only aspirational and failed to account for variation between different academic environments.” In his testimony, Kennedy said Carthage security procedures did not live up to the practices published by the International Association of Campus Law Enforcement Administrators, but the court dismissed that point, as the standards are merely recommendations. The court also clarified that past cases of rape at Carthage involved acquaintances of the victims, while Lees’s case involved strangers.

Rule 702 establishes that a witness is qualified as an expert if he gives fact-based and reliable testimony that helps the court understand the facts of the case.

A three-judge panel in the U.S. Court of Appeals for the Seventh Circuit vacated the lower court’s judgment and remanded it for further proceedings, saying that “Although the district court did not explicitly trace and apply the framework of Rule 702 ..., the court’s decision reflects an implicit reliance on the requirements of the rule.” Disagreeing with the lower court, the panel found Kennedy's testimony on IACLEA security standards did address the standard of care that Carthage was required to meet.

The panel also noted that the lower court acted properly by excluding the testimony about past cases of sexual assault at Carthage, since Kennedy did not distinguish between different kinds of rape.

“Relying on these crime statistics without accounting for this distinction does not reflect the application of reliable principles and data to the facts of this case,” reads the decision.

Carthage College did not respond to a request for comment.


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