Military Contractor’s Action-Packed Negligence Suit Blocked for Lack of Expert Testimony on Standard of Care

Judge Garland’s latest opinion has something for everyone: helicopters and horses, ambushes and duels, AK-47s and six-shooters, Afghanistan and the Old West, a barroom brawl and the Erie doctrine [pdf].  If that is not enough, the opinion’s star-studded cast features Gary Cooper, Allen Iverson, the Taliban, and a military contractor who was shot five times and lived to sue for negligence.

Spoiler alert:  

The court affirmed summary judgment in favor of the defendant security companies because the plaintiff, a former British soldier turned private security contractor for a U.S. firm, failed to introduce expert testimony to establish the standard of care applicable to a security contractor in a war zone.

Under D.C.’s choice of law rules, the court had to apply D.C. tort law.  And under D.C. law, expert testimony is required to establish the standard of care if the negligence claim arises in a specialized context that lies “beyond the ken of the average layperson.”

The court rejected the plaintiff’s argument that his suit was analogous to a case against basketball star Allen Iverson for negligent supervision of his bodyguard in a nightclub beating.  There the D.C. Circuit had held that no expert testimony was needed to establish the applicable standard of care.  Judge Garland brushed the comparison aside with the observation that “the difference between a barroom brawl and an ambush in a remote Afghan village is self-evident.”

Next, the court addressed the argument that a lay juror would have intuited the appropriate standard of care from watching old Westerns, because Afghanistan “is comparable to the old Wild West.”  Judge Garland rejected both the analogy and the notion that some helpful standard of care could be gleaned from movies like High Noon:

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. As to the second point, we must have seen different versions of these Westerns than Burke did. In the versions we saw, the heroes took hardly any special precautions at all before heading into their confrontations with the outlaws. Will Kane, for example, set out to meet the fearsome Miller gang with only two pistols and his marshal’s badge. And as we have noted above, this was despite his having had time to take whatever other precautions were available. Frank Miller, after all, was not arriving until the noon train.

Finally, the court held that the Erie doctrine does not prohibit the use of D.C.’s expert witness rule in federal diversity cases.  Rule 702 of the Federal Rules of Evidence did not preempt D.C.’s rule, because Rule 702 “determines the circumstances in which expert testimony is permitted,” and the D.C. rule, by contrast, “defines a circumstance in which expert testimony is required.”  Thus, there is no conflict between the two rules, so a court can apply the D.C. rule without thwarting Erie‘s command to apply “federal procedural law” in diversity cases.

Burke v. Air Serv Int’l, Inc., No. 11-7037 (July 13, 2012) (Garland, J., joined by Henderson & Brown, JJ.)

One response to “Military Contractor’s Action-Packed Negligence Suit Blocked for Lack of Expert Testimony on Standard of Care

  1. Pingback: Military Contractor’s Action-Packed Negligence Suit Blocked for Lack of Expert Testimony on Standard of Care | Isenberg Institute of Strategic Satire

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