Crime Prevention Expert in School ShootingThis case arises out of the shooting of a student on campus by an unidentified shooter at a private college. Defendants moved for summary judgment under Rule 56 against Plaintiff, as well as a motion to strike the testimony of a crime prevention expert witness.

Plaintiff brought action against the college and related individuals, alleging negligence in failing to provide for his safety, promissory fraud regarding student’s medical bills, fraudulent misrepresentation, and fraudulent suppression.

U.S. District Judge Virginia Emerson Hopkins of the Northern District of Alabama wrote in her opinion that the threshold issue for the admissibility of crime prevention expert witness testimony and reports is Rule 702. That rule provides, in relevant part, that a witness who “is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” (emphasis added).

The judge noted that although expert opinions are “technically subject to exclusion under Federal Rule of Evidence 403, Rule 702 is a more stringent barrier that allows expert opinions to be excluded when the opinion’s probative value and prejudicial effect are in equipoise, so the Rule 403 analysis is (as a practical matter) within the Rule 702 analysis.”

Defendants moved to strike the crime prevention expert witness testimony because they claimed that it failed to satisfy Rule 702 and, in the alternative, should be excluded under Rule 403. For the reasons she noted above, the judge conducted only the Rule 702 analysis. Judge Hopkins explained that the Eleventh Circuit has refined the Rule 702 analysis so that the trial court should consider: (i) whether the expert is qualified to testify competently regarding the matters he or she intends to address; (ii) whether the expert’s methodology satisfies Daubert; and (iii) whether the testimony would assist the trier of fact, through specialized expertise, to understand the evidence or to determine a fact in issue.

The three statements in question were as follows:

  1. The assault on Plaintiff […] did not arise out of a sudden burst of violence, but rather was the culmination of several prior assaults occurring on campus earlier that evening.

. . . .

  1. […] College both under-reported and misclassified crime data in the years proceeding the shooting assault on […] Plaintiff.
  2. […] College classified the shooting assault on […] Plaintiff as a “physical injury.”

Judge Hopkins held that, as to paragraphs 74 and 75, Plaintiff’s crime prevention expert witness was clearly qualified, given his background in law enforcement. He had adequate experience to consider proper protocols for the reporting of crimes. In light of the fact that this opinion is a deeply factual one, the judge said that it could easily be undercut by cross-examination if it were untrue. Thus, Daubert’s reliability requirement was satisfied. In addition, this information would assist the trier of fact in determining the Defendants’ mental state as to Plaintiff’s fraud claims. As a result, the motion was denied as to Paragraphs 74 and 75.

However, Paragraph 72 was a different story, the judge said. Judge Hopkins was unwilling to assume that Plaintiff’s crime prevention expert witness—or anyone—was qualified to render such an opinion. The short explanation for why it should be excluded, the judge held, was that it would not assist the trier of fact, in that it did nothing but make Plaintiff’s closing argument for him. Plus, there was almost no evidence to support this opinion. The judge termed it “rank speculation.”

There was no evidence whatsoever as to who shot Plaintiff. He argued that the shooter was narrowed to the group of people in a car, and it was the same group of “locals” throughout the night who harassed the students. Aside from his habit during briefing to refer to the crowd at various locations and the shooter as “locals,” Plaintiff offered nothing, especially not admissible evidence, to demonstrate that “the locals and the dudes were, in fact, local dudes”—that is to say, the same people. Even the number of assailants, let alone their identities, was uncertain, Judge Hopkins noted.

The motion to strike was granted insofar as Plaintiff’s expert’s opinion was used to support the facts in Paragraph 72.

In summary, the motion was denied because; (i) the motion to strike the report and testimony in their entirety was too broad, and, had the case survived summary judgment, it would have been appropriate to take up more atomistic objections to the report in advance of trial; and (ii) Plaintiff only cited to the report and testimony three times as evidentiary support in his response to the motion for summary judgment. The judge held that it was not necessary to resolve the admissibility of the report beyond those cited portions.

Defendant’s motion for summary judgment was granted, and its motion to strike expert testimony was granted in part and denied in part.


Emery v. Talladega College, 2016 WL 880038 (N.D. Ala. March 8, 2016)