Burke v. Air Serv Int'l, Inc.

• Decision Date: 13 July 2012
• Docket Number: No. 11–7037.,11–7037.
• Citation: 685 F.3d 1102
• Parties: Paul Douglas BURKE, Appellant v. AIR SERV INTERNATIONAL, INC., et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

685 F.3d 1102

Paul Douglas BURKE, Appellant

v.AIR SERV INTERNATIONAL, INC., et al., Appellees.

No. 11–7037.

United States Court of Appeals,District of Columbia Circuit.

Argued Jan. 20, 2012.

Decided July 13, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:07–cv–02335).

David E.R. Woolley argued the cause and filed the briefs for appellant. Malcolm L. Benge entered an appearance.

Frank A. Silane argued the cause for appellees. With him on the brief were Richard A. Lazenby, Ivy L. Nowinski, Thomas J. Whalen, Edward J. Longosz II, Mark A. Johnston, and Daniel A. Glass.

Before: HENDERSON, GARLAND, and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Plaintiff Paul Burke, a former British soldier, was severely wounded in an ambush in Afghanistan, where he was working for a private security contractor. Burke sued the transport company that furnished the helicopter he flew in on and the construction company that contracted with his employer for his security services, alleging that they had negligently failed to take appropriate security measures for his trip. The district court granted summary judgment for the defendants because Burke failed to proffer—as District of Columbia law requires—an expert to testify regarding the standard of care for such security precautions.

On appeal, Burke maintains that no expert was required because, inter alia, “every juror will have seen” such films as High Noon. Burke Br. 31. Perhaps. But even if they have, we are puzzled about what they could have learned from those films that would have been helpful to Burke's case. After all, Marshal Kane (Gary Cooper) did not helicopter to his confrontation with the Miller gang. Nor did he carry, as Burke did, a 9–mm. pistol and AK–47 assault rifle. No, Kane walked to the fateful encounter protected only by two revolvers and a tin star. Moreover, he did so notwithstanding that the meeting could hardly have been regarded as an ambush: as the film's title makes clear, each side knew precisely what time the showdown would take place.

We respect Burke's long military career and greatly regret the injuries suffered in the ambush, as well as the death of the helicopter pilot. But Burke's reliance on old Westerns rather than expert testimony to establish the standard of care is “fatal to [his] negligence claim.” Briggs v. Washington Metro. Area Transit Auth., 481 F.3d 839, 848 (D.C.Cir.2007) (internal quotation marks omitted). Finally—and more prosaically—the Erie doctrine is fatal to his alternative contention that we should disregard D.C.'s expert testimony requirement altogether.

I

Burke served in the British military for almost 23 years. He then became a security consultant for the United Nations World Food Programme in Afghanistan before accepting a riskier job for a private security contractor, U.S. Protections and Investigations (USPI), at almost twice the pay. The Louis Berger Group (LBG), one of the defendants, was a construction management company overseeing various projects in Afghanistan, and it hired USPI to provide security. LBG engaged the other defendant—Air Serv International, Inc.—to provide helicopter transport to its work sites.

During his time in Afghanistan, Burke had been ambushed “lots of times.” Burke Dep. at 271–72 (Feb. 24, 2009). Indeed, just prior to the ambush giving rise to this case, he authored a memorandum describing the “tenuous” security situation in Afghanistan and the recent increase in Taliban attacks against non-governmental organizations. Paul Burke, USPI SC's Briefing for Schools and Clinics at 1 (J.A. 228). As Burke explained in his deposition, he was specifically concerned about “opportunist[ic] threat[s]” from the Taliban—that is, unplanned attacks like the ambush at the center of this case. Burke Dep. at 129. Burke had also flown in Air Serv helicopters several times and was aware that they were not armored. Id. at 115.

Nonetheless, on February 22, 2004, Burke helicoptered to the village of Taluqan with an engineer and an interpreter to survey the progress of an LBG project. Burke, who was equipped with a 9–mm. pistol and AK–47 assault rifle, patrolled the area around the helicopter while others inspected the building site. As the party prepared to leave, unknown attackers opened fire. Burke and the others returned fire and radioed for help. The firing lasted about thirty minutes. Burke was shot five times; the pilot was killed; and the engineer was badly wounded. The interpreter was able to call by satellite telephone for help, which arrived roughly an hour after the attack began.

In December 2007, Burke filed this action against LBG and Air Serv, invoking the diversity jurisdiction of the United States District Court. Burke alleged that both defendants were negligent in the security procedures they followed and the security equipment they provided, see Compl. ¶¶ 50–57, and that LBG was negligent in hiring and retaining his employer, USPI, to provide security for the aircraft and personnel, id. ¶¶ 58–70.¹ He did not, however, sue his employer. After discovery, the district court granted summary judgment for the defendants on two alternative grounds: that Burke had assumed the risk of his injuries, and that Burke had failed to proffer expert testimony regarding the standard of care owed to him by the defendants as required by District of Columbia tort law. Burke v. Air Serv Int'l, Inc., 775 F.Supp.2d 13, 21, 23 (D.D.C.2011). Because the latter ground is sufficient to resolve this appeal, it is the only ground we discuss below.

II

Applying the choice-of-law rules of the District of Columbia to this diversity case, see Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), the district court determined that D.C.'s substantive law governs Burke's suit. “Neither party has objected to this choice of law on appeal, and, finding no apparent error in the District Court's choice, we shall apply District of Columbia law as well.” BWX Elecs., Inc. v. Control Data Corp., 929 F.2d 707, 710 (D.C.Cir.1991).

In order to prevail on a negligence claim under D.C. law, a plaintiff “must prove the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiff's injury.” Scales v. District of Columbia, 973 A.2d 722, 730 (D.C.2009) (internal quotation marks omitted). Moreover, a plaintiff “ ‘must put on expert testimony to establish what the standard of care is if the subject in question is so distinctly related to some science, profession or occupation as to be beyond the ken of the average layperson.’ ” Briggs, 481 F.3d at 845 (quoting District of Columbia v. Arnold & Porter, 756 A.2d 427, 433 (D.C.2000)). Accordingly,if expert testimony were required to establish the standard of care here, Burke's failure to offer such testimony would justify the grant of summary judgment against him. See id. at 848 (affirming summary judgment because, under D.C. law, failure to establish the standard of care is “fatal to a negligence claim” (internal quotation marks omitted)); see also Varner v. District of Columbia, 891 A.2d 260, 268–71 (D.C.2006).

We agree with the district court that D.C. law requires expert testimony in this case. Burke alleges that the defendants were negligent in failing to equip his helicopter with appropriate radio communications equipment, bulletproof blast mats, and a bulletproof windshield; in not providing other personnel on the helicopter with body armor, helmets, and face shields; in not seeking air clearance permission from the proper authorities prior to the flight; and in hiring security personnel. Compl. ¶¶ 52–70. But the precise precautions a security contractor should take in a war zone are plainly “beyond the ken of the average layperson,” Briggs, 481 F.3d at 845 (internal quotation marks omitted). As the D.C. Court of Appeals, adopting an old dissenting voice from an analogous Second Circuit case, has declared: “[C]ourts should not leave it to ‘a jury of tailors and haberdashers to pass judgment [unaided by expert testimony] on how to make a wet and rolling deck in a seaway a safe place to work.’ ” Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 200 (D.C.1991) (alteration in original) (quoting Zinnel v. U.S. Shipping Bd. Emergency Fleet Corp., 10 F.2d 47, 49 (2d Cir.1925) (Hough, J., dissenting)).

Burke maintains that the standard of care in this case is “ ‘within the realm of common knowledge and everyday experience,’ ” Godfrey v. Iverson, 559 F.3d 569, 572 (D.C.Cir.2009) (quoting Arnold & Porter, 756 A.2d at 433). But the D.C. Court of Appeals has required expert testimony in scenarios far more familiar to the average juror than an ambush in Afghanistan.² And as our court has noted, “expert testimony is routinely required ‘in negligence cases ... which involve issues of safety, security and crime prevention,’ ” Briggs, 481 F.3d at 845–46 (quoting Varner, 891 A.2d at 267), including allegations of “negligent ‘hiring, training, and supervision of ... security personnel,’ ” Farooq v. MDRB, Corp., 275 Fed.Appx. 11, 12 (D.C.Cir.2008) (quoting Predzin v. DC Arena Ltd. P'ship, No. 02CA 9582, at 5 (D.C.Super.Ct. Oct. 7, 2003)).

Our decision in Godfrey v. Iverson is not to the contrary. That case involved a brawl at a D.C. nightclub. In the course of the brawl, the bodyguard of the defendant basketball star beat up the plaintiff, who then sued for negligent supervision. We held that no “expert assistance” was needed to “establish the standard of care for an individual who is present while his personal bodyguard, acting on his behalf in clearing a room in a nightclub, beats a customer and causes significant injuries.” 559 F.3d at 573. Burke attempts to convert this holding into a broader principle that expert testimony is never needed to establish the standard of care for...