As a southern Illinois personal injury attorney, I was pleased to see that a student who was a victim of sexual violence will have her day in court. In Lees v. Carthage College, Katherine Lees alleged that Carthage College was negligent in its security measures, which led to the invasion of her dorm room and rape by apparent strangers. Carthage successfully excluded the testimony of an expert in premises security, Dr. Daniel Kennedy, who would have supported Lees’s case. Without the testimony, the trial court granted summary judgment to Carthage because Lees had no case. In this appeal, the Seventh U.S. Circuit Court of Appeals reversed the exclusion of some of Kennedy’s testimony, saying it was not unreliable just because the standards he would propose for college campuses are “aspirational.”
Lees entered Carthage College, in Wisconsin, as a freshman in the fall of 2008. She is hearing impaired and her speech may be difficult for strangers to understand. She lived in an all-female dormitory. In the early morning hours of September 21 of that year, when nonresidents should not have been able to enter the building, two men wearing Carthage shirts entered her dorm room and one raped her. They fled after she managed to punch the second one in the face as he tried to assault her. She withdrew from the college and later sued Carthage and its insurer for negligent security. To establish the applicable standard of care, she sought to introduce testimony by Kennedy, a professor of criminal justice and security administration at the University of Detroit. His written opinion pointed to security defects that meant the school fell short of the standards of the International Association of Campus Law Enforcement Administrators, and noted that Carthage had had five rapes in 2007 and one each in 2003, 2005 and 2006.
After Carthage’s motion, the district court agreed to exclude Kennedy’s testimony as unreliable. The judge cited improper reliance on IACLEA standards, which were aspirational, and said the recent rapes at Carthage did not make Lees’s stranger rape foreseeable because they were acquaintance rapes.
Lees appealed, and the Seventh Circuit ultimately reversed as to some of Kennedy’s testimony. The Seventh agreed with the district court that the IACLEA guidelines are insufficient by themselves to establish that Carthage didn’t meet the standard of care, but they didn’t need to be. Rather, the court said, the district court should have considered only whether consulting them is a sound way to establish an expert opinion in this case. Thus, excluding this part of Kennedy’s testimony was an abuse of discretion, the Seventh said. For this reason, the testimony about the basement door prop alarm should have been admitted. Nor was the district court correct in rejecting the testimony for failure to compare Carthage to similar schools—this could be part of a reliable method, the Seventh said, but is not required. However, the appeals court upheld the district court’s exclusion of Kennedy’s testimony on prior rapes at Carthage, saying acquaintance rape is not comparable to stranger rape. And it upheld the removal of other aspects of his testimony as insufficiently supported by data.
As a St. Louis injury lawyer, I appreciate that this decision will give Lees a chance to make her case in court. Very often in expert testimony appeals, the entire case dies when the expert testimony is thrown out, because expert testimony is required in certain situations—for example, to establish the standard of care in medical malpractice cases. But if the defendant succeeds in getting the expert testimony thrown out, there’s no chance for the plaintiff to save her case by finding another expert. That’s true no matter how much merit the underlying case might have. By preserving the expert testimony here, the Seventh is allowing a jury to decide on the merits of the case Lees will present. As a Missouri premises liability attorney, I believe everyone who has suffered a serious injury like hers should be given a chance to make their case.
Carey, Danis & Lowe represents clients across Missouri and southern Illinois who have been injured by someone else’s negligence. If you would like to tell us your story and learn more about your legal rights, call us today at 1-877-678-3400 or send us a message through our website.
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