Katherine Lees v. Carthage College ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3061
K ATHERINE L EES,
Plaintiff-Appellant,
v.
C ARTHAGE C OLLEGE and
L EXINGTON INSURANCE C OMPANY,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-C-86—Rudolph T. Randa, Judge.
A RGUED A PRIL 12, 2012—D ECIDED A PRIL 16, 2013
Before E ASTERBROOK, Chief Judge, and M ANION and
S YKES, Circuit Judges.
S YKES, Circuit Judge. Katherine Lees began her
freshman year at Carthage College in the fall of 2008.
On September 21, 2008, she was sexually assaulted in
her dorm room by two men she believed to be Carthage
students. Lees withdrew from Carthage after the attack
and eventually brought this negligence action against
2 No. 11-3061
the college and its insurer, Lexington Insurance Com-
pany (collectively, “Carthage”). Lees sought to intro-
duce the opinion testimony of Dr. Daniel Kennedy, a
premises-security expert, as evidence of the standard of
care Carthage was required to meet regarding campus
safety. Dr. Kennedy was prepared to testify that there
were numerous security deficiencies at Carthage and
at Lees’s residence hall specifically, that there was a
history of sexual assault at the school, and that Carthage
fell short of the recommended practices in the field
of campus security.
Carthage moved to exclude Dr. Kennedy’s expert
testimony under Rule 702 of the Federal Rules of
Evidence and also moved for summary judgment,
arguing that Lees had failed to present reliable expert
evidence establishing the relevant standard of care. The
district court excluded Dr. Kennedy’s testimony, finding
it inadmissable for two main reasons: First, he had
relied on industry standards that were only aspirational
and failed to account for variation between different
academic environments; and second, the recent history
of sexual assault at Carthage involved acquaintance
rape, while the attack on Lees was a case of stranger
rape. With Dr. Kennedy’s testimony excluded, Lees
lacked evidence necessary to prove her claim, so the
court entered summary judgment for Carthage.
We vacate the judgment and remand for further pro-
ceedings. Although the district court did not explic-
itly trace and apply the framework of Rule 702, which
guides the court’s “gatekeeping” discretion under
No. 11-3061 3
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993), the court’s decision reflects an implicit reliance
on the requirements of the rule, and we find no abuse
of discretion with respect to at least some of the short-
comings the court identified in Dr. Kennedy’s report. But
some of the expert’s proposed testimony is admissible
under Rule 702. Specifically, Dr. Kennedy’s testimony
about the security standards published by the Inter-
national Association of Campus Law Enforcement Ad-
ministrators is not unreliable merely because the
standards are aspirational; the standards represent an
authoritative statement by premises-security profes-
sionals regarding recommended practices in the field of
campus security, and that is sufficient to satisfy the
Rule 702 requirement of reliability. Also, Dr. Kennedy’s
testimony about an insecure door at Lees’s dorm—
more specifically, the absence of a “prop alarm” on
the basement door—reflects the application of reliable
principles and methods to the specific facts of this
case and thus satisfies Rule 702. Because Dr. Kennedy’s
testimony is admissible in part, Lees raised a genuine
factual dispute for trial, and summary judgment for
Carthage was improper.
I. Background
Carthage College is a four-year private college located
along the shores of Lake Michigan, just north of Kenosha,
Wisconsin. The school has a full-time enrollment of
2,000 to 3,000 students, about 1,500 of whom live on
campus. Katherine Lees is a resident of California who
began her short-lived academic career at Carthage in
4 No. 11-3061
the fall of 2008. She is hearing impaired and primarily
communicates through sign language and lip reading,
but she can speak in a way understandable to those
familiar with her.
Lees lived on campus in Tarble Hall, an all-female
dormitory that is one of nine residence halls on campus.
All residence halls are locked 24 hours a day. Between
8 a.m. and 2 a.m. on Fridays and Saturdays (and 8 a.m.
and midnight on other nights) students may use their
student ID to access any hall. Outside of those hours,
students may access only their own residence hall.
Between 9 p.m. and midnight on weekends, resident
assistants (“RAs”) monitor the lobby of Tarble Hall.
The RAs do not staff the lobby’s front table between
midnight and 2 a.m., but they patrol the hall’s corridors
and stairways until 2:30 a.m., along with regular
security staff. Tarble Hall also has a basement door that
is locked from the outside and inaccessible by swiping
a student ID. This door lacks a prop alarm, meaning
that it can be propped open indefinitely without
alerting security. The individual rooms in Tarble Hall
use key-in-knob locks. Tarble Hall RAs encouraged
students to follow an “open door policy” in which
they would leave their doors propped open while other
residents were around to encourage socializing.
In the early morning hours of September 21, 2008
(late Saturday night on the 20th to early Sunday morning
the 21st), Lees was in her room with her door propped
open. Shortly after midnight she saw two young men
enter her doorway and say something to her. She tried
No. 11-3061 5
to tell them she was deaf, and the men laughed and
walked away. At around 12:30 a.m., the men returned,
entered the room, turned off the lights, and closed the
door. One of the men then raped Lees while the other
held her down. Lees was able to punch the second
man in the face when he tried to assault her, which
caused both men to flee. She believes the two men
were Carthage students because one was wearing a
“Carthage football” sweatshirt and the other a “Carthage”
t-shirt. The assailants were never identified. Lees later
withdrew from Carthage.
Lees brought this negligence action against Carthage
College and its insurer, Lexington Insurance Company,1
in federal court in the Eastern District of Wisconsin.
The complaint invoked the court’s diversity jurisdiction,
and the parties agree that Wisconsin law governs the
case. To establish the applicable standard of care for
the jury’s determination of negligence, Lees sought to
introduce the expert testimony of Dr. Daniel Kennedy,
a premises-security expert who has long served as a
professor of criminal justice and security administration
at the University of Detroit. Dr. Kennedy’s report
and affidavits explain his opinion that several security
deficiencies existed at Carthage and Tarble Hall and
that the attack on Lees was foreseeable. Specifically,
Dr. Kennedy pointed to the lack of a prop alarm on the
1
Lees’s original complaint also named as a defendant RSUI
Indemnity Company, but this insurer was later dismissed
from the case.
6 No. 11-3061
basement door; the failure to staff the lobby between
midnight and 2 a.m. on weekends; Tarble’s open-door
policy; the lack of a policy requiring guests to be
escorted to the rooms of students they were visiting;
and the lack of security cameras. Dr. Kennedy also
stated that Carthage in many respects fell short of the
recommended practices published by the International
Association of Campus Law Enforcement Admin-
istrators (“IACLEA”).
Regarding incidents of rape in particular, Dr. Kennedy
noted that according to Carthage’s crime-reporting statis-
tics under the federal Clery Act, codified at 20 U.S.C.
§ 1092(f), there had been eight forcible sexual offenses
in the five years leading up to 2008: one each in 2003,
2005, and 2006, and five in 2007. Dr. Kennedy also refer-
enced social-science data on rape, including studies
showing that women with disabilities, like Lees, were
four times more likely to be raped than other women.
Carthage moved to exclude the testimony of Dr. Ken-
nedy and also for summary judgment. The motion for
summary judgment made several arguments, but the
first was that Lees had failed to put forward reliable
expert testimony establishing the relevant standard of
care as required under Wisconsin law for this sort of
negligence claim. The district court considered the
two motions together and granted both, holding that
Dr. Kennedy’s testimony was inadmissible and that
Lees therefore lacked expert evidence on the standard of
care.
For a number of different reasons, the court found
unreliable, and thus inadmissible, Dr. Kennedy’s conclu-
No. 11-3061 7
sion that the attack on Lees was foreseeable. First, it
held that Dr. Kennedy improperly relied on the IACLEA
standards, which were merely recommended and
aspirational and did not necessarily account for varia-
tion among different types of academic environments.
Relatedly, the court faulted Dr. Kennedy for not
analyzing security measures at colleges similarly
situated to Carthage in terms of size and location.
Second, the court criticized Dr. Kennedy’s reliance on
the recent rape statistics at Carthage, noting that the
eight attacks between 2003 and 2007 were all instances
of acquaintance rape, while the attack on Lees was
stranger rape. The court reasoned that a school would
need to take different measures to prevent acquaintance
rape than to prevent stranger rape, so this recent history
did not suggest foreseeability. Likewise, the court
noted that the comparatively greater risk of rape for
women with disabilities said nothing about the
foreseeability of a student being raped by a stranger in
her residence hall.
Finally, the court disregarded out-of-jurisdiction au-
thority cited by Lees as support for her claim that
sexual assault in a college dorm room is foreseeable. The
court acknowledged that Carthage had a duty to pro-
vide a safe living environment but found that the plain-
tiffs in the cited cases had created genuine issues of fact
as to breach and the duty of care. By contrast, because
Dr. Kennedy’s testimony was inadmissible, Lees had
not produced sufficient evidence on these elements.
Accordingly, the court granted Carthage’s motion for
summary judgment. Lees timely appealed.
8 No. 11-3061
II. Discussion
We review de novo a district court’s grant of summary
judgment. Musch v. Domtar Indus., 587 F.3d 857, 859
(7th Cir. 2009). The summary-judgment decision here
turned entirely on the district court’s conclusion that
Dr. Kennedy’s expert testimony was inadmissible.
Whether the district court applied the appropriate legal
framework for evaluating expert testimony is reviewed
de novo, but the court’s choice of relevant factors
within that framework and its ultimate conclusion as to
admissibility are reviewed for abuse of discretion. Smith
v. Ford Motor Co., 215 F.3d 713, 717 (7th Cir. 2000).
This appeal presents two interrelated questions: first,
whether Dr. Kennedy’s methodology was sufficiently
reliable to render his testimony admissible under
Rule 702; and second, whether his testimony was
sufficient on the question of the standard of care to
survive summary judgment and submit the negligence
claim to a jury. With respect to at least part of Dr. Ken-
nedy’s proposed testimony, we answer these questions
in the affirmative.
A. Expert Testimony Under Rule 702
The requirements of Rule 702 of the Federal Rules of
Evidence are follows:
A witness who is qualified as an expert by knowl-
edge, 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
No. 11-3061 9
knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied
the principles and methods to the facts of the case.
In Daubert the Supreme Court interpreted an earlier
version of Rule 702 2 and explained that it imposes a
special gatekeeping obligation on trial judges with
regard to scientific expert testimony. The Court held
that scientific evidence need not have “general accep-
tance,” but the court must ensure that the evidence is
relevant and reliable before admitting it. 509 U.S. at
588-89. The Court emphasized that “[t]he inquiry envi-
sioned by Rule 702 is . . . a flexible one,” id. at 594, and
also explained that removing the “general acceptance”
requirement from prior caselaw would not create a “free-
for-all” by confusing juries with scientific testimony
because “[v]igorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden
of proof are the traditional and appropriate means of
attacking shaky but admissible evidence,” id. at 596. In
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999),
2
Rule 702 originally provided as follows: “If scientific, techni-
cal, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an
opinion or otherwise . . . .”
10 No. 11-3061
the Court added that the Daubert analysis applies to all
expert testimony under Rule 702, not just scientific testi-
mony. The Court also noted in Kumho that because
there are “many different kinds of experts, and many
different kinds of expertise,” the reliability analysis
should be geared toward the precise sort of testimony
at issue and not any fixed evaluative factors. Id. at 150.
Rule 702 was substantially revised in 2000 to “ ‘affirm[]
the trial court’s role as gatekeeper and provide[] some
general standards that the trial court must use to assess
the reliability and helpfulness of proffered expert testi-
mony.’ ” Dhillon v. Crown Controls Corp., 269 F.3d 865,
869 (7th Cir. 2001) (quoting FED. R. E VID. 702, advisory
committee’s note, 2000 amends.); see also United States v.
Parra, 402 F.3d 752, 758 (7th Cir. 2005) (“At this point,
Rule 702 has superseded Daubert, but the standard of
review that was established for Daubert challenges is
still appropriate.”). Essentially, the district court must
make the following inquiries before admitting expert
testimony: First, the expert must be qualified by knowl-
edge, skill, experience, training, or education; second,
the proposed expert testimony must assist the trier of
fact in determining a relevant fact at issue in the case;
third, the expert’s testimony must be based on suf-
ficient facts or data and reliable principles and methods;
and fourth, the expert must have reliably applied the
principles and methods to the facts of the case. See F ED.
R. E VID. 702; Smith, 215 F.3d at 717-19.
No. 11-3061 11
B. Wisconsin Law of Professional Negligence
In Wisconsin a claim of negligence has four elements:
(1) the existence of a duty of care on the part of the defen-
dant; (2) a breach of that duty of care; (3) a causal con-
nection between the defendant’s breach of the duty of
care and the plaintiff’s injury; and (4) actual loss or
damage resulting from the injury. Hornback v. Archdiocese
of Milwaukee, 752 N.W.2d 862, 867 (Wis. 2008). On the
question of duty, Wisconsin follows Judge Andrews’s
dissent in Palsgraf v. Long Island Railroad Co., 162 N.E. 99(N.Y. 1928), see, e.g., Behrendt v. Gulf Underwriters Ins. Co.,
768 N.W.2d 568 (Wis. 2009), distilled succinctly as the
principle that “[e]very one owes to the world at large
the duty of refraining from those acts that may unrea-
sonably threaten the safety of others,” Palsgraf, 162 N.E.
at 103 (Andrews, J., dissenting). The duty of care in Wis-
consin negligence law is simply stated as the duty to
exercise reasonable care under the circumstances.
That standard is inherently quite abstract and must be
defined more specifically for any given case. See Hoida,
Inc. v. M & I Midstate Bank, 717 N.W.2d 17, 29 (Wis. 2006)
(the scope of that duty of care “depends on the circum-
stances under which the claimed duty arises” and “may
depend on the relationship between the parties or on
whether the alleged tortfeasor assumed a special role
in regard to the injured party”).
Where the specifics of a defendant’s duty of care
involve specialized knowledge, plaintiffs must intro-
duce expert testimony to establish this element of a
negligence claim. Payne v. Milwaukee Sanitarium Found., Inc.,
12 No. 11-3061
260 N.W.2d 386, 392 (Wis. 1977) (“Expert testimony
should be adduced concerning those matters involving
special knowledge or skill or experience on subjects
which are not within the realm of the ordinary experience
of mankind, and which require special learning, study
or experience.”). Premises-security cases like this one
fall within the category of negligence claims requiring
expert testimony. See Shadday v. Omni Hotels Mgmt. Corp.,
477 F.3d 511, 515 (7th Cir. 2007) (“It is one thing for a
jury unaided by expert testimony . . . to assess the
care with which the defendant in an automobile
accident case drove, for that is something with which
almost all jurors are familiar; it is another thing for a
jury to determine the right standard of care to which
to hold a hotel.”); Varner v. District of Columbia, 891 A.2d
260, 267 (D.C. 2006) (“[E]xpert testimony is required
to establish the standard of care in negligence cases . . .
which involve issues of safety, security[,] and crime
prevention.”).
The parties agree that Lees needs expert testimony
to prove her claim, but they disagree about exactly
what this testimony must show. Dr. Kennedy’s affidavits
are mostly framed in terms of foreseeability: Given
the inadequate security measures and history of sexual
assault at Carthage, Lees’s rape was foreseeable, so
Carthage failed to exercise reasonable care under the
circumstances. While the district court ultimately
rejected Dr. Kennedy’s testimony, it seemed to accept
that foreseeability was the relevant question. The court
cited Gritzner v. Michael R., 611 N.W.2d 906, 912 (Wis.
2000), for the proposition that duty of care is established
No. 11-3061 13
“whenever it was foreseeable to the defendant that
his or her act or omission to act might cause harm to
some other person.” Under more recent Wisconsin
caselaw, however, foreseeability relates to the question
of breach, not a question of the duty of care. See Behrendt,
768 N.W.2d at 575-76 (“ ‘A lack of foreseeable risk in
a specific case may be a basis for a no-breach determina-
tion, but such a ruling is not a no-duty determina-
tion. Rather it is a determination that no reasonable
person could find that the defendant has breached the
duty of reasonable care.’ ” (quoting R ESTATEMENT (T HIRD )
OF T ORTS: L IABILITY FOR P HYSICAL H ARMS § 7(a) cmt. j
(Proposed Final Draft No. 1, 2005))).
Accordingly, foreseeability is not the relevant focus
of inquiry for determining the admissibility of expert
testimony in a case like this one. Rather, expert testi-
mony is required to establish the standard of care
for ensuring the security of a campus residential environ-
ment. Colleges must provide students with a safe
living environment as part of their generalized duty of
care, but what are the contours of that duty in a given
case? More specifically, what security measures must a
particular college undertake to provide a level of safety
that is reasonable under the circumstances? That ques-
tion—what specific actions did Carthage need to take
to meet its generalized duty of care—is what the term
“standard of care” addresses in this context, and that is
the question the expert’s testimony must address. In a
sense, in this context the standard of care is a fusion of
the elements of duty and breach: The security measures
that were reasonable under the circumstances make up
14 No. 11-3061
the duty of care, and to the extent that Carthage’s actions
fell below this standard, it breached that duty. The
foreseeability of particular kinds of harms may inform
this analysis, but foreseeability itself is not the ultimate
issue for the jury as it may be in ordinary negligence cases.
To see how this concept operates in practice, consider
how professional negligence is addressed in the more
familiar realm of medical malpractice. The Wisconsin
Supreme Court has approved the following language for
instructing juries on medical negligence, which closely
tracks Wisconsin Civil Jury Instruction No. 1023:
In treating [patient], [doctor] was required to use
the degree of care, skill, and judgment which is
usually exercised in the same or similar circum-
stances by the average specialist who practices
the specialty which [doctor] practices, having due
regard for the state of medical science at the time
[patient] was treated. The burden in this case is on
the plaintiffs to prove that [doctor] failed to conform
to this standard.
A physician does not guarantee the results of his
care and treatment. A physician must use reasonable
care and is not liable for failing to use the highest
degree of care, skill, and judgment. [Doctor] cannot
be found negligent simply because there was a bad
result. Medicine is not an exact science. Therefore,
the issue you must decide in determining whether
[doctor] was negligent is not whether there was a
bad result but whether he failed to use the degree
of care, skill, and judgment which is exercised by
No. 11-3061 15
the average physician practicing the [doctor’s
subspecialty].
If you find that more than one method of treatment
for [patient]’s injuries is recognized, then [doctor]
was at liberty to select any of the recognized meth-
ods. [Doctor] was not negligent merely because he
made a choice of a recognized alternative method
of treatment if he used the required care, skill, and
judgment in administering the method. This is true
even though other medical witnesses may not agree
with him on the choice that was made.
Nowatske v. Osterloh, 543 N.W.2d 265, 269 (Wis. 1996),
abrogated on other grounds by Nommensen v. Am. Cont’l
Ins. Co., 629 N.W.2d 301, 313 n.6 (Wis. 2001). Extrapolating
to the premises-security claim in this case, the pivotal
question is whether Carthage used the degree of care
and judgment usually exercised by the average college
under similar circumstances, having due regard for
the contemporary state of campus-security practices.
Where multiple approaches to premises security are
recognized as adequate, colleges are free to choose
among them. A college breaches its duty of care when
it fails to conform to this standard.
C. Application to Dr. Kennedy’s Testimony
With this background in place, we now move to the
key question on appeal: whether the district court
properly excluded Dr. Kennedy’s testimony. Before
proceeding, we note that although the court’s written
16 No. 11-3061
decision does not precisely track the requirements of
Rule 702, the court rejected Dr. Kennedy’s testimony on
reliability grounds, reflecting an implicit application
of the analysis required under the rule. Regarding the
threshold inquiry of Rule 702—whether the proposed
expert is qualified—the parties agree that the district
court implicitly held that Dr. Kennedy is qualified to
give expert testimony on premises security. He has
several degrees in sociology and educational sociology,
has published extensively in the field of criminology
and security administration, has trained specifically in
physical premises security, and has testified as an
expert witness in many similar cases. Carthage does not
challenge Dr. Kennedy’s qualifications.
The main point of contention is whether Dr. Kennedy
followed a reliable methodology in reaching his con-
clusions and reliably applied it to the specific facts of
this case. To summarize his process, Dr. Kennedy
reviewed witness statements, including the testimony of
Carthage’s former director of security; visited and in-
spected the security conditions at Tarble Hall; reviewed
the various security protocols at Tarble and Carthage
generally; reviewed published statistics and police
reports involving sexual assault on campus; compared
Carthage’s practices with those recommended in the
IACLEA guidelines; and surveyed the professional litera-
ture on sexual assault and campus-security practices.3
3
The parties dispute whether Dr. Kennedy’s approach
should qualify as a “forensic methodology” or merely a “totality
(continued...)
No. 11-3061 17
Drawing from this investigation and his experience
and expertise, Dr. Kennedy identified the standard of
care for college premises security and concluded that
Carthage’s practices fell short of that standard in num-
erous respects. Specifically, he opined that Carthage
should have installed a prop alarm on the basement
door at Tarble Hall; that the lobby should have been
staffed between midnight and 2 a.m.; that visitors
should have been escorted to dorm rooms; that the
building should have used security cameras; and that
students should have been told to close their doors
when they were not socializing, especially late on
weekend nights.
As a general matter, this methodology fits the factual
and legal context of this case. To be sure, Dr. Kennedy’s
approach “may not have been ‘scientific,’ but it was
both ‘technical’ and ‘specialized’ ” within the meaning of
Rule 702, which “does not condition admissibility on
the state of the published literature, or a complete and
flaw-free set of data.” United States v. Mikos, 539 F.3d
706, 711 (7th Cir. 2008); see also United States v. Herrera,
704 F.3d 480, 486 (7th Cir. 2013) (“expert evidence is not
limited to ‘scientific’ evidence . . . [but] includes any
evidence created or validated by expert methods and
presented by an expert witness that is shown to be reli-
3
(...continued)
of the circumstances” approach. The label is not important.
What matters is whether he consulted reliable sources and
provided reasoned explanations connecting the source
material to his conclusions.
18 No. 11-3061
able”). Dr. Kennedy was offering nonscientific expert
testimony in a particular field—premises security, or
more specifically, campus security—that does not easily
admit of rigorous testing and replication. “[E]xpert testi-
mony that is more technical than scientific is governed
by the same criteria as the admission of scientific expert
testimony.” Dhillon, 269 F.3d at 869.
The district court had two major criticisms of Dr. Ken-
nedy’s methodology: (1) he relied on industry guide-
lines that are only aspirational; and (2) he failed to dis-
tinguish acquaintance rape from stranger rape in
Carthage’s recent history. With regard to the IACLEA
standards, there is no question that these guidelines,
standing alone, do not establish the standard of care.
As the district court noted, they are only aspirational
practices, not a formal industry standard; even formal
industry standards are not dispositive as to negligence
liability. Michaels v. Mr. Heater, Inc., 411 F. Supp. 2d 992,
997 (W.D. Wis. 2006). But the relevant question for ad-
missibility purposes is not whether the IACLEA guide-
lines are controlling in the sense of an industry
code, or even how persuasive they are. It is only whether
consulting them is a methodologically sound practice
on which to base an expert opinion in the context of
this case. For a claim of this nature, we are convinced
that it is. The IACLEA guidelines are an authoritative
set of recommended practices specific to the field of
campus security and are regularly consulted by campus-
security professionals. The extent of Carthage’s devia-
tions from these practices may surely inform an expert
opinion as to whether Carthage met its standard of care.
Carthage may argue, of course, that the IACLEA guide-
No. 11-3061 19
lines are only advisory, or outdated, or overly general,
and for those reasons should not be taken as persuasive
on the standard of care. But that argument goes to the
weight of the expert’s testimony, not its admissibility.
The district court abused its discretion in excluding
this part of Dr. Kennedy’s testimony.
Carthage cites Varner v. District of Columbia, 891 A.2d
260 (D.C. 2006), as support for its assertion that courts
have “specifically rejected the use of the IACLEA recom-
mendation as ‘standards’ for residence hall security.” But
Varner considered this question only as a matter of suf-
ficiency of the evidence at summary judgment, not as it
concerned the admissibility of expert testimony. The
plaintiffs in Varner introduced expert testimony that a
university violated a national standard of care by failing
to conform its keycard-access protocols to the IACLEA
recommendations. The court nevertheless upheld the
grant of summary judgment to the defendants, holding
that “[a]spirational practices do not establish the stan-
dard of care which the plaintiff must prove in sup-
port of an allegation of negligence.” Id. at 272. But Varner
did not hold that the testimony of the expert in
question was inadmissible because of his reliance on
the IACLEA standards. Indeed, the admissibility of
various pieces of expert testimony was not at issue in
Varner—only whether the content of that testimony
sufficed to overcome summary judgment under local
negligence standards. Importantly, deviation from the
IACLEA recommendations appeared to be the only basis
in Varner for the expert’s conclusion that the university
violated the standard of care. See id. at 271-72. That
differs from the present case, in which the IACLEA stan-
20 No. 11-3061
dards were only one factor informing Dr. Kennedy’s
opinion.
Both Carthage and the district court also fault
Dr. Kennedy for not relying on “community stan-
dards”—that is, he did not specifically compare security
practices at Carthage to schools similarly situated in
terms of location and size. But while references to com-
munity standards could be part of a reliable meth-
odology, such an analysis is not necessary for expert
testimony to be admissible. Strict reliance on this factor
to exclude the expert testimony would be out of step
with the sort of “flexible” inquiry called for under
Rule 702. Daubert, 509 U.S. at 594. And a dispositive
focus on community standards is especially inappro-
priate given that Wisconsin does not follow the locality
rule for professional negligence. See Shier v. Freedman,
206 N.W.2d 166, 173-74 (Wis. 1973) (rejecting the
locality rule in the context of medical malpractice).
Local custom or practice may be evidence of the
applicable standard of care, but they do not establish
the standard of care any more than national industry
guidelines. Again, Carthage is free to argue that commu-
nity standards would have been a preferable bench-
mark, but that again is a matter of evidentiary weight,
not admissibility. Certainly it is the sort of issue that
can be explored adequately via the normal adversarial
process of “[v]igorous cross-examination, presentation
of contrary evidence, and careful instruction on the
burden of proof.” Daubert, 509 U.S. at 596; see also Ortiz
v. City of Chicago, 656 F.3d 523, 536 (7th Cir. 2011)
(“[t]he admissibility determination [under Rule 702] is
not intended to supplant the adversarial process”).
No. 11-3061 21
The district court did not abuse its discretion,
however, in criticizing Dr. Kennedy’s failure to distin-
guish between acquaintance rape and stranger rape
when evaluating prior instances of sexual assault at
Carthage. As part of his analysis, Dr. Kennedy re-
viewed Carthage’s published crime statistics, which
noted eight instances of sexual assault on campus
between 2003 and 2007, five of which occurred in 2007
alone. This history of sexual assault informed Dr. Ken-
nedy’s opinion as to what specific security measures
would have been reasonable under the circumstances. As
the district court observed, however, these eight crimes
were all instances of acquaintance rape, while the as-
sault on Lees was stranger rape. Relying on these crime
statistics without accounting for this distinction does not
reflect the application of reliable principles and data to
the facts of this case. The district court properly ex-
cluded this aspect of the proposed expert testimony.
On the other hand, Dr. Kennedy’s testimony about the
insecure basement door—specifically, the absence of a
prop alarm—is directly relevant to the facts of this case.
The district court did not separately address this aspect
of his testimony, which is sufficiently reliable—prop
alarms are recommended under the IACLEA stan-
dards—and was reliably linked to the facts of this
case. This part of Dr. Kennedy’s testimony should not
have been excluded. As to the remaining points under-
lying his opinion—the lack of a front-desk monitor be-
tween midnight and 2 a.m., the open-door “socializing”
policy, the apparently lax hall monitoring, and the
absence of security cameras—his report lacks sufficient
analysis tied to experiential data about the use of these
22 No. 11-3061
practices in college residence halls. Perhaps that analysis
is theoretically possible, but on the present record we
find no abuse of discretion regarding these aspects of
the proposed expert testimony.
For completeness, we note that the Rule 702 require-
ment that Dr. Kennedy’s testimony will assist the jury
effectively merges with the question whether his
testimony sufficiently speaks to the standard of care.
Carthage insists that Dr. Kennedy’s testimony—even if
reliable under Rule 702 and Daubert—addresses only
foreseeability, which does not establish the standard of
care under Wisconsin negligence law. For the reasons
already explained, we agree that foreseeability is not the
proper focus in this case—although the confusion is
perhaps understandable in light of the mixed messages
in the Wisconsin caselaw on this question. Compare
Behrendt, 768 N.W.2d at 575 (“ ‘A lack of foreseeable
risk in a specific case may be a basis for a no-breach de-
termination, but such a ruling is not a no-duty deter-
mination.’ ” (quoting R ESTATEMENT (T HIRD ) OF T ORTS:
L IABILITY FOR P HYSICAL H ARMS § 7(a) cmt. j (Proposed
Final Draft No. 1, 2005))), with Gritzner, 611 N.W.2d at 912
(Wis. 2000) (“The first element, a duty of care, is estab-
lished under Wisconsin law whenever it was foreseeable
to the defendant that his or her act or omission to act
might cause harm to some other person.”).
But even though Dr. Kennedy’s affidavits reflect this
legal imprecision, the deficiency is hardly fatal for Lees.
The task of instructing the jury on the applicable law
belongs to the judge, not the expert witness. The admissi-
bility of Dr. Kennedy’s testimony turns on whether its
No. 11-3061 23
substance speaks to the standard of care that Carthage
was required to meet. Evaluated from this perspective,
at least some aspects of Dr. Kennedy’s proposed testi-
mony are admissible; based on his expertise, investiga-
tion, and informed analysis, he is prepared to testify
as to particular security measures he believes were re-
quired under the circumstances and that Carthage failed
to provide. To repeat, Dr. Kennedy’s general testimony
about the IACLEA security standards is admissible, as
is his more specific testimony faulting the lack of a prop
alarm on the basement door of Tarble Hall. On these
points, the clear import of Dr. Kennedy’s report and
affidavits is that Carthage deviated from the required
standard of care. That is exactly the sort of expert testi-
mony that one would expect on the subject of premises
security; indeed, his testimony provides the necessary
factual support for an element of the claim. To this
extent at least, Dr. Kennedy’s testimony is admissible
under Rule 702, and with that testimony Lees has the
expert support for her claim required by Wisconsin
professional-negligence law.
Accordingly, the summary judgment in favor of
Carthage College is V ACATED , and the case is R EMANDED
for further proceedings consistent with this opinion.
4-16-13