Expert Witness Blog
A female sued a retail clothing store for negligence following an episode at the store. The plaintiff (Jane Doe) hired two experts to assist in her case, both of which were challenged by the defendant. The court granted the motion for her technology expert and denied the motion regarding her security expert.
Facts: In this case (Jane Doe v. AE Outfitters Retail Co. – United States District Court – District of Maryland – December 17th, 2015), a female customer at defendant’s clothing retail store was trying on clothes in a fitting room when she noticed an iPhone positioned under the fitting room door. A male customer had placed the phone there and may have taken a picture of her. She screamed, alerting the sales associates, who chased the male customer, but could not apprehend him. The suspect was never caught. The plaintiff (Jane Doe) sued the defendant (AEO) for negligence. in Baltimore Circuit Court and the case was removed to this federal court. In order to assist in her case against the defendant, Doe hire two expert witnesses: Steven Stern, Esq (computers & technology expert witness) and Jack Dowling (retail security expert witness).
Discussion: Mr. Stern was hired to provide expert testimony on liability and damages. On the liability front, Stern opined that news stories about customers being filmed in fitting rooms and web sites about voyeurism in fitting rooms show that this particular incident should have been foreseeable. On damages, Stern will show that monetary damages exist because defendant will have to monitor the Internet for her image and will be expensive. AEO argued that Stern is not qualified to render these opinions and that his opinions are irrelevant.
The court agreed with AEO on reliability in that the judge was not able to identify the “special skill” or “knowledge” that Stern has that will assist in his opinions on the forseeability of invasion of privacy in fitting rooms. His work on identifying and assisting on removing images from the Internet has no bearing on the case at hand and his opinions come from conducting Internet searches. Thus, the court concluded that his opinion on liability is not admissible under Daubert.
Regarding damages, AEO argues that Stern’s opinions are not relevant. Stern opines that Doe will have to spend a lot of money to monitor the Internet for possible images. That said, the court opines that Stern does not know 1) If Doe’s images has been posted online, 2) If she tried to identify her image online, or 3) if she has incurred any costs for removal or monitoring. In addition, Stern does not have any factual basis for his opinions on these costs. Much of his opinion is based on assumptions, which leads the court to conclude that Stern’s testimony is irrelevant and inadmissible.
Mr. Jack Dowling was hired by the plaintiff to opine that the incident was foreseeable due to the following: 1) The coed, secluded fitting rooms lacked full-length doors, 2) miniature and phone cameras are very prevalent today, and 3) news reports on similar incidents that have occurred at retail stores. AEO argues that Mr. Dowling is not qualified to render an opinion on retail fitting room security, his opinions do not have a factual basis, and that they are unreliable.
Regarding qualifications, the court opined that his experience as head of security at a university, his experience providing retail security advice to clients, and other background make him qualified to render an opinion in this case. Dowling’s opinions are drawn from his special skill, knowledge, and education and his testimony is admitted. On the factual basis issue, AEO states that Dowling should not rely on news reports to show foreseeability. The judge opined that this argument is better for cross-examination, not a Daubert challenge as Dowling relied on other materials as well as site visits to form his opinion.
Last, concerning reliability, AEO states that Dowling failed to look at local crime statistics or information from professional groups related to fitting rooms and privacy. Dowling stated that he formed his opinion on the 2003 ASIS International General Security Risk Assessment Guideline, which shows what security practitioners may look at when forming an opinion. The court opined that this methodology is defensible, and thus, reliable.
Held: the court granted the motion to exclude the testimony of Steven Stern and denied the motion to exclude the testimony of Jack Dowling