HENRY H. KENNEDY, JR., District Judge.
Paul Douglas Burke brings this action against Air Serv International, Inc. and the Louis Berger Group ("LBG"), seeking to recover for personal injuries resulting from a 2004 ambush in Afghanistan, where Burke was working as a security contractor. Alleging negligence and intentional infliction of emotional distress, Burke seeks compensatory and punitive damages.
This case arises from an incident that occurred in the Afghan village of Taluqan
On February 21, 2004, Burke joined LBG engineer Suzanne Wheeler-Wallace as she embarked on a trip to survey the progress of various LBG school and clinic projects. Burke was accompanied by Tariq Nazarwall, his USPI interpreter and driver. The party set out from Kabul in an Air Serv helicopter, piloted by Mark Burdorf. Burke and Nazarwall were both equipped with small arms. On the morning of February 22, the party flew to Taluqan. When they arrived in the village, Wheeler-Wallace left the helicopter with Nazarwall to inspect the building site, while Burdorf remained. Burke patrolled the area between the helicopter and the building site. Burke Dep. at 192-93. When Wheeler-Wallace had completed her inspection, she and Nazarwall returned to the helicopter and strapped in, while Burdorf prepared to take off. Burke Dep. at 196. As Burke climbed into the helicopter, unknown assailants opened fire on the party. The firing lasted roughly thirty minutes, during which time Burke took shelter next to the helicopter and returned fire. Burke Dep. at 214-17. During the firefight, Burke sustained five gunshot wounds, including one that shattered his left knee. Wheeler-Wallace was seriously wounded, and Burdorf was killed. Nazarwall was able to use a satellite phone to call for help, which arrived roughly one hour later.
Following a lengthy rehabilitation, Burke regained only partial use of his left leg. Burke Dep. at 215. Burke returned to work for USPI in Afghanistan in late 2005. He remained for four months, and then resigned. Burke Dep. at 252-54. Burke subsequently filed this action, alleging that defendants were negligent in their security measures, were negligent in hiring and retaining USPI, and intentionally inflicted emotional distress on Burke by recklessly placing him in danger. He asserts that defendants were "negligent about helicopter security, security training, security equipment and protection, security intelligence[,] and flight and security permissions." Pl.'s Opp'n to Defs.' Mot. ("Pl.'s Opp'n") at 2. In particular, he challenges defendants' failure to provide armor and other protective gear for the helicopter and its occupants. Compl. ¶¶ 32-33. Defendants have moved for summary judgment.
A motion for summary judgment should be granted only if the moving party shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). The moving party's "initial responsibility" consists of "informing the district court of the basis for its motion, and identifying those portions of
If the moving party meets its burden, the burden then shifts to the non-moving party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To meet its burden, the non-moving party must show that "the evidence is such that a reasonable jury could return a verdict" in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Such evidence must consist of more than mere unsupported allegations or denials and must set forth specific facts showing that there is a genuine issue for trial. FED.R.CIV.P. 56(e); Celotex, 477 U.S. at 322 n. 3, 106 S.Ct. 2548. If the evidence is "merely colorable" or "not significantly probative," summary judgment must be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.
To resolve defendants' motion for summary judgment, the Court must first determine what body of law governs this diversity action. Next, the Court will address Burke's contention that a particular feature of District of Columbia tort law— an expert testimony requirement—does not apply to his specific claims or to any claims brought in federal court. Finally, the Court will turn to defendants' argument that Burke assumed the risk of his injuries.
Federal courts sitting in diversity apply the choice-of-law rules of the forum where they sit, in this case the District of Columbia. GEICO v. Fetisoff, 958 F.2d 1137, 1141 (D.C.Cir.1992). To resolve choice-of-law questions in tort cases, the District's courts employ a modified governmental interest test, which is designed to "identify the jurisdiction with the `most significant relationship to the dispute.'" Drs. Groover, Christie & Merritt v. Burke, 917 A.2d 1110, 1117 (D.C.2007) (quoting Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31, 41 & n. 18 (D.C.1989)). Before identifying that jurisdiction, however, the Court must determine whether the laws of the potentially interested jurisdictions actually vary; if not, forum law applies by default. GEICO, 958 F.2d at 1141.
Here, the parties identify four potentially interested jurisdictions: the District of Columbia, Florida, New Jersey, and Virginia, each of which is either the place of incorporation or the primary place of business of one of the parties.
In the District of Columbia, a plaintiff alleging negligence must present expert testimony to establish the applicable standard of care "where the subject presented is `so distinctly related to some science, profession or occupation as to be beyond the ken of the average layperson.'" Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 200 (D.C.1991) (quoting Toy v. District of Columbia, 549 A.2d 1, 6 (D.C.1988)). Florida, New Jersey, and Virginia all apply a variant of this rule. See Evans v. McDonald, 313 Fed.Appx. 256, 258 (11th Cir.2009) (under Florida law, "when the facts of the case are such that the duty owed and the applicable standard of care are not common knowledge, expert opinion is necessary to establish a breach"); Bd. of Supervisors v. Lake Servs., Inc., 247 Va. 293, 440 S.E.2d 600, 602 (1994) (expert testimony is generally required "in cases involving the practice of professions requiring advanced, specialized education, such as engineering, medicine, and law, or those involving trades that focus upon scientific matters, such as electricity and blasting, which a jury cannot understand without expert assistance"); Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141, 1147 (1982) ("The test of need of expert testimony is whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable."). Accordingly, defendants are correct that there is no conflict here, and the District's law applies by default. GEICO, 958 F.2d at 1141.
Notwithstanding the fact that District law governs here, Burke presents two additional arguments why the Court should not apply the expert testimony requirement described above to his claims: first, he contends that the District's requirement for expert testimony in negligence cases is a procedural "rule of evidence" and thus does not apply in federal court, even where the District's substantive law applies. Second, he argues that his claims are not beyond the ken of the average juror such that an expert is needed under the rule. The Court addresses each argument in turn.
Under the doctrine of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817,
Burke asserts that the District's expert testimony rule conflicts with, and is thus superseded by, Federal Rule of Evidence 702, which governs the admissibility of expert testimony. See FED.R.EVID. 702. Here, Burke confuses two distinct issues: whether a particular witness will be allowed to testify as an expert, which is governed by the Federal Rules, and when expert testimony in general is required, which is the subject of the District's rule. There is no conflict here. A federal court applying the District's rule will still determine whether a given witness is "qualified [to testify] as an expert by knowledge, skill, experience, training, or education," id., within the meaning of Rule 702. Accordingly, the District's rule does not, as Burke contends, contravene the federal judge's "gatekeeping role" with regard to expert testimony.
Having concluded that the District's rule does not conflict with any federal provision, the Court must next determine whether the rule is "substantive" or "procedural" within the meaning of the Erie doctrine. Although that line can be difficult to draw, decades of Supreme Court precedent have refined the inquiry. The Court must ask: "Would application of the [standard] ... have so important an effect upon the fortunes of one or both of the litigants that failure to [apply] it would [unfairly discriminate against citizens of the forum State, or] be likely to cause a plaintiff to choose the federal court?" Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 428, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (quoting Hanna, 380 U.S. at 468, 85 S.Ct. 1136) (alterations in original) (internal quotation marks omitted). Neither party squarely addresses this question.
The Court concludes that the expert testimony rule is substantive in the meaning of Erie such that it applies in this case. The rule imposes a significant hurdle that plaintiffs would plainly rather avoid. If the federal courts in the District declined to apply it, plaintiffs would have a
Under the District's rule, plaintiffs alleging negligence must offer expert testimony to establish the relevant standard of care unless the "negligent conduct is alleged in a context which is within the realm of common knowledge and everyday experience." Beard, 587 A.2d at 200. This rule has been applied in a wide variety of cases, "even in those that might initially seem to fall within jurors' common knowledge." Godfrey v. Iverson, 559 F.3d 569, 572 (D.C.Cir.2009).
Defendants assert that expert testimony is needed here because Burke's allegations raise issues "significantly more complex and technical" than those in cases where the D.C. Court of Appeals has previously required expert testimony. Defs.' Mem. at 18. Burke replies that no expert is required because jurors could judge defendants'
To begin with, Burke's claims relate not to military ground vehicles, but rather to civilian helicopters, and extend beyond armor to flight plans, tracking equipment, radio communications, and training. Further, the D.C. Court of Appeals has required expert testimony regarding issues with which jurors would likely have an equivalent familiarity through media reports. For example, expert witnesses are required to establish the standard of care for police procedures. See Butera v. District of Columbia, 235 F.3d 637, 659 (D.C.Cir.2001). Indeed, experts are often required even in areas where jurors could plausibly be expected to have first-hand experience. See, e.g., Novak v. Capital Mgmt. & Dev. Corp., 570 F.3d 305, 313 (D.C.Cir.2009) (nightclub security); Freeman, 477 A.2d at 719-20 (crosswalk safety). Given the complex and technical nature of Burke's claims—especially in comparison to other cases where expert testimony has been required—the Court concludes that expert testimony is necessary here.
In turn, because Burke has failed to designate an expert who could establish the standard of care in this case, summary judgment for defendants is required. See Brisbin v. Wash. Sports & Entm't, Ltd., 422 F.Supp.2d 9, 13 (D.D.C.2006) (granting summary judgment for the defendant where the plaintiff failed to designate an expert who could establish the applicable standard of care); Beard, 587 A.2d at 200 ("If the plaintiff fails to present sufficient evidence to establish the applicable standard of care, the court must enter judgment for the defendant.").
Finally, the Court turns to defendants' argument that they are entitled to summary judgment because, even if Burke could prove the standard of care applicable to his claims, he would be unable to recover because he assumed the risk of his injuries. Under District of Columbia law, "[a]ssumption of risk occurs when a plaintiff voluntarily consents to incur a risk. The consent may be express ... or implied by conduct." Martin v. George Hyman Constr. Co., 395 A.2d 63, 71 (D.C.1978). "Also, the risk of a specific danger which is already in existence and known and appreciated by the plaintiff may be assumed." Id.; see Scoggins v. Jude, 419 A.2d 999, 1004 (D.C.1980); Harris v. Plummer, 190 A.2d 98, 100 (D.C.1963). Assumption of risk "may operate as a complete bar to liability." Dennis v. Jones, 928 A.2d 672, 676 (D.C.2007).
Here, defendants contend that Burke "was fully aware of all of the risks ... of which he now complains," and chose to face those risks for financial reasons and to have an opportunity "`to be in charge of his own operation.'" Def.'s Mem. at 10-11 (quoting Burke Dep. at 121). Burke responds that there is no evidence that he was aware of the specific risks related to the flight to Taluqan, and that the ambush constituted a "new element" of risk that he could not have anticipated. Burke's argument is unavailing.
Burke relies heavily on a pair of cases holding that a plaintiff does not assume a risk of harm where a "new element escalate[s] the [situation], transforming it from one whose risks were more or less known into one whose potentialities [the plaintiff] could in no way have anticipated." Sinai v. Polinger Co., 498 A.2d 520, 524-25 (D.C. 1985); accord Novak, 570 F.3d at 314-15. For example, under this principle, the sudden use of weapons in a fist fight constitutes a "new element" that the participants could not have foreseen. See Sinai, 498 A.2d at 524-25; Novak, 570 F.3d at 314-15. Burke fairly states the holdings of these cases, but the Court cannot agree that they apply here.
First, there is ample evidence that Burke understood the broader security situation in Afghanistan, which he described as "tenuous" and "deteriorating." Burke Dep. at 127, 129. Indeed, Burke's twenty-two years as a professional soldier, including tours of duty in theaters of active combat, made him ideally suited to understand these risks fully. See Burke Dep. at 13-21. Further, there is clear evidence that Burke was aware of the risks involved in LBG's helicopter flights; in fact, during his deposition, Burke listed a number of measures that he felt would make the helicopter flights safer, all of which he "knew... were not in place" at the time of the ambush. Burke Dep. at 163.
Most critically, Burke clearly understood the risks involved in the flight to Taluqan. He knew that the helicopter was unarmored and would carry no guards. Burke Dep. at 151-52. He was aware that the Taliban attacked targets of opportunity, Burke Dep. at 129, and that LBG's helicopters were highly visible and audible from miles away. Burke Dep. at 161-62. And he wanted the helicopter to remain in Taluqan for as little time as possible because he was "worried" that even though the village was not a Taliban stronghold, the Taliban's mobility and rapid communications made staying there dangerous. Burke Dep. at 190.
For the foregoing reasons, defendants' motion for summary judgment must be granted. An appropriate order accompanies this memorandum opinion.
