Premises Security Experts And Admissibility Considerations Under Daubert And Kumho: A Revised Standard

I. INTRODUCTION

Having one's expert excluded or testimony limited can have a devastating impact on the outcome of a case.⁶ As such, trial attorneys must be mindful of the potential for challenges to their expert's testimony and take the appropriate steps to avoid or successfully defeat such challenges. The purpose of this article, therefore, is to educate and provide guidance to trial attorneys and members of the judiciary on issues pertinent to the admissibility of expert testimony in premises security cases. This article identifies the lack of specific guidance regarding the appropriate standard to apply in admissibility determinations of premises security experts brought under Daubert v. Merrell Dow Pharmaceuticals, Inc.⁷ and Kumho Tire Co. v. Carmichael.⁸ In Daubert, the United States Supreme Court outlined a uniform federal standard for the admissibility of scientific expert evidence but failed to address whether the same standard also applied to non-scientific evidence.⁹ Kumho answered this question by extending Daubert to non-scientific evidence, reasoning that the Federal Rules make no distinction between the types of evidence and, therefore, a uniform admissibility standard should apply to both.¹⁰ However, in failing to draw a distinction between the two types of evidence, Kumho has persuaded trial judges to evaluate security and other non-scientific experts according to an incongruous standard.¹¹ While instructive to an admissibility determination of scientific evidence, a strict application of the Daubert factors is not suitable for determining the reliability of non-scientific evidence because it fails to contemplate issues unique to non-scientific evidence.¹² This fact necessitates a new admissibility standard that comports with the requirements of the Federal Rules while recognizing the important differences between scientific and non-scientific evidence.

This article addresses the difficulties arising from Kumho's extension of Daubert to non-scientific evidence. Part II examines the evolution of expert testimony. Part III presents the standards for the admissibility of expert testimony as outlined in Daubert and Kumho. Part IV discusses the critical differences between scientific and non-scientific expert evidence in the context of Kumho's expansion of Daubert. Part V suggests a more appropriate standard for the admissibility of premises security expert testimony based on Federal Rule of Evidence 702, and includes an analysis of the manner in which several lower courts have already applied the language of Rule 702 to the testimony of numerous premises security experts. This standard requires that the expert demonstrate that he is qualified to testify as a security expert, that he will assist the fact-finder in making a determination, that he has employed a reliable methodology by reviewing all relevant facts and identifying applicable industry standards, and that he has applied the methodology to the specific facts of the case.¹³

This focus of this article is on improving the quality of premises security expert testimony, avoiding exclusion of such testimony for failure to meet a strict application of Daubert, and reducing the incidence of unsupported, unreliable opinions capable of substantially altering the outcome of a case. By educating legal and security professionals about the current law on the admissibility of expert testimony and by suggesting a new standard for the admissibility of premises security experts, this article aims to achieve these objectives.

II. THE EVOLUTION OF EXPERT TESTIMONY ADMISSIBILITY

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Norman D. Bates, Esq. is a nationally-recognized expert in security and the law. As the President and Founder of Liability Consultants, Inc., he provides security management consulting services to private industry as well as court-certified expert witness services nationwide to both plaintiff and defense firms in civil cases regarding inadequate security, negligent hiring or training, and workplace violence. He received his Bachelor of Science degree in Criminal Justice at Northeastern University and his Juris Doctor degree from Suffolk University School of Law. He is admitted to the bar in Massachusetts. Mr. Bates is also the President of the International Association of Professional Security Consultants.

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