Bethea v. Bristol Lodge Corp.

Full title: RATHESHA BETHEA, Administratrix of the Estate of Charles B. Bethea…

Court: United States District Court, E.D. Pennsylvania

Date published: May 19, 2003

CIVIL ACTION NO. 01-612 (E.D. Pa. May. 19, 2003)

Opinion

CIVIL ACTION NO. 01-612

May 19, 2003

MEMORANDUM

MICHAEL BAYLSON, District Judge

The issue presented in this wrongful death and survivors action is whether to exclude the testimony of an expert defense witness pursuant to Plaintiffs' Motion to Exclude Testimony of Defendants' Expert Witness. Oral argument was held on April 28, 2003. For the reasons that follow, Plaintiffs' Motion will be granted.

I. Background A. Factual Background

On February 8, 1999, Charles E. Bethea ("Bethea") was fatally shot in a robbery while he was entering the Divas International Gentlemen's Club ("Divas"), a restaurant and bar that provides entertainment in the form of topless dancing, located at 6201 Bristol Pike in Levittown, Pennsylvania. Defendant Larken Hotel Company owns this property and leases the restaurant space in which Divas is located to defendant Bristol Lodge Corporation ("Bristol Lodge"). Bristol Lodge entered into a management agreement with the Divas defendants for them to operate and manage Divas. Plaintiff Rathesha Bethea, Administratrix of the Estate of Charles E. Bethea, and plaintiff in her own right and plaintiff Karimah Bethea (collectively "Plaintiffs") allege that Defendants collectively failed to provide lighting and security sufficient to maintain a reasonable and safe premises, and that Bethea suffered and died as a result of this alleged negligence. They have brought this wrongful death and survivors action pursuant to 20 PA. CONS. STAT. ANN. § 3373, 42 PA. CONS. STAT. ANN. §§ 8301-02, and Pa.R.Civ.P. 2201(A).

Dewayne Housely was arrested in July 1999, and upon trial was convicted for the killing of Bethea. Housely, who was 22 at the time of his arrest, had a history of criminal activity and had been released from prison several months prior to decedent's murder, after a seven-year incarceration for numerous carjackings. There was no evidence that Housely knew Bethea, but the facts have shown that Housely targeted him. According to the police investigation, Housely first intended to rob Bethea on February 6, 1999. Housely and a friend followed Bethea from a gambling establishment he frequented in Trenton, New Jersey. Upon entering Pennsylvania, Housely's car ran out of gas, and he had to postpone his plans.

The following night, Housely again attempted to rob Bethea. At 11:30 p.m., Housely, and his friend, Courtney Boone, who later pleaded guilty to his role in the events, followed Bethea from the gambling establishment to a drug store, and later a diner, all located in Trenton. They subsequently followed Bethea to Divas in Pennsylvania. Bethea parked in the parking lot outside Divas where Housely parked. As Bethea headed toward the first set of doors, Housely got out of his car and grabbed Bethea's arm. Bethea pushed Housely away and ran to enter the building. Housely followed him, and the two apparently had an altercation between the first and second set of double doors of the entrance. According to witnesses seated inside Divas, Bethea flew backward through the second set of doors into the room, with his hands raised in front of his face and his back facing the club. At that moment, shortly after midnight on February 8, 1999, Housely shot Bethea in the face, killing him. Housely then went through Bethea's pockets and escaped with some cash. Approximately ten or fewer seconds elapsed from the time Bethea entered the first set of double doors to the time he was shot inside Divas.

B. Procedural Background

Plaintiffs filed their Complaint in this Court on February 7, 2001. This Court has diversity subject matter jurisdiction because Plaintiffs and Defendants are citizens of different States, and the amount in controversy exceeds $75,000 pursuant to 28 U.S.C. § 1332 (a). Venue is appropriate under 28 U.S.C. § 1391 (a).

In accordance with the discovery schedule, Plaintiffs identified Robert Peloquin as their security expert, and Defendants identified Frederick J. Bornhofen as their security expert. Both experts submitted reports addressing the security issues in dispute, and both were deposed.

Defendants then filed a Motion for Summary Judgment and Plaintiffs and Defendants filed motions to exclude the testimony of their opponents' proffered expert witnesses. On December 18, 2002, the Court issued a Memorandum and Order denying summary judgment as to all defendants except Kenneth S. Stein, individually, a limited partner in two of the defendant corporations, and granting both Plaintiffs Motion to Exclude Testimony of Defendants' Expert Witness and Defendants' Motion to Exclude Testimony of Plaintiffs' Expert Witness. See Bethea v. Bristol Lodge Corp., No. CIV.A.01-612, 2002 WL 31859434, at *8, 15 (E.D. Pa. Dec. 18, 2002) (Reed, S.J.)). The experts were excluded from testifying under Daubert because the Court found that both parties' submissions regarding their experts "were wholly inadequate to determine the existence of a reliable methodology of evaluating security measures in a public restaurant and nightclub, whether specifically accepted or practically applied. It appears from the deposition testimony that there is no scientifically accepted methodology." Id. at *8. Defendants then proposed Francis P. Friel to replace Mr. Bornhofen as their security expert. Plaintiffs now move under Federal Rule of Evidence 702 to exclude Mr. Friel's testimony. Applying the same standards as Judge Reed applied, the Motion will be granted.

II. Standard

Federal Rule of Evidence 702 states:

If scientific, technical, 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The following is a summary of the legal standard Judge Reed used.

Under Rule 702, when "[f]aced with a proffer of expert testimony . . . the trial judge must determine at the outset, pursuant to Rule 104(a) whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (footnotes omitted)). This gatekeeping function extends beyond scientific testimony to "testimony based on . . . `technical' and `other specialized' knowledge." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

The Third Circuit has established that Rule 702 as interpreted byDaubert and its progeny embodies "three distinct substantive restrictions on the admission of expert testimony: qualifications, reliability, and fit." United States v. Mathis, 264 F.3d 321, 335 (3d Cir. 2001), cert. denied, 535 U.S. 908, 122 S.Ct. 1211, 152 L.Ed.2d 148 (2002) (quotingElcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000)). The proponent of the expert testimony bears the burden of establishing its admissibility by a preponderance of the evidence. See Oddi v. Ford Motor Co., 234 F.3d 136, 144 (3d Cir. 2000), cert. denied, 532 U.S. 921, 121 S.Ct. 1357, 149 L.Ed.2d 287 (2001)).

The Third Circuit has set the following standard to qualify as an expert:

Rule 702 requires the witness to have "specialized knowledge" regarding the area of testimony. The basis of this specialized knowledge "can be practical experience as well as academic training and credentials." We have interpreted the specialized knowledge requirement liberally, and have stated that this policy of liberal admissibility of expert testimony "extends to the substantive as well as the formal qualification of experts." However, "at a minimum, a proffered expert witness . . . must possess skill or knowledge greater than the average layman . . ."

Elcock, 233 F.3d at 741 (quoting Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998)).

The following factors govern reliability:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.

Elcock, 233 F.3d at 745-46 (quoting In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 742 n. 8 (3d Cir. 1994)).

It has been noted that Daubert:

makes certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. . . . The trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.

Elcock, 233 F.3d at 746 (quoting Kumho Tire, 526 U.S. at 152).

Thus, the factors discussed above are not exhaustive and the inquiry remains flexible. See Elcock, 233 F.3d at 746. Where the testimony is not scientific in nature, "relevant reliability concerns may focus upon personal knowledge or experience," as opposed to "scientific foundations."Kumho Tire, 526 U.S. at 150.

The fit requirement comes from the textual provision that "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Mathis, 264 F.3d at 335 (quoting Fed.R.Evid. 702). Admissibility under this factor turns on "the proffered connection between the scientific research or test result to be presented and particular disputed factual issues in the case." Oddi, 234 F.3d at 145. This measure is "not intended to be a high one." Id. Its standard is similar to the general liberal standard of evidence under the Federal Rules of Evidence. See Mathis, 264 F.3d at 335.

III. Discussion

At the time the initial Daubert motions were filed, Defendants had not identified Mr. Friel as an expert witness. Plaintiffs contend that under the Court's reasoning in its December 18, 2002 Memorandum and Order, Mr. Friel's proffered testimony also should be excluded.

According to his resume, Mr. Friel is a graduate of the Federal Bureau of Investigation National Academy, where he specialized in investigating violent crime, and also is a graduate of the Senior Management Institute for Police in Andover, Massachusetts. (Pls.' Mot., Ex. B.). Mr. End was admitted to a masters program in criminal justice and safety at St. Joseph's University in 1993. Id. He began his career as a patrolman in the Philadelphia Police Department, and from 1982 to 1989, he served as a captain. Id. As a captain, he directed investigations into local organized crime murders, leading to the successful prosecution of over 60 organized crime members and associates. Id. From 1989 to 1997, Mr. Friel was the director of public safety for Bensalem Township, Pennsylvania, a municipality of over 60,000 people. Id. In that position, he was responsible for planning and supervising the enforcement of crime prevention, detection, and investigation programs, and for overseeing all emergency services for the township. Id. From 1997 to the present, Mr. Friel has served as president of Atlantic Security International Investigations, Inc. in Bensalem. Id. As president, he manages business, legal, and corporate investigations for over 500 clients, and is presently conducting investigations in 22 cities in the United States and abroad. Id.

Mr. Friel's resume states that he has received official commendations from the FBI, United States Marshals Service, the United States Strike Force on Organized Crime, the Pennsylvania Crime Commission, and the Security Association of Philadelphia. Id. He has been a guest speaker at the FBI Organized Crime Conference, Eastern Armed Robbery Conference, and the National Law Enforcement Institute Seminar and has testified as an expert witness before the United States Senate Committee on the Constitution regarding the Handgun Violence Prevention Act of 1987. Id. He has served as a consultant on premises security for Lehigh University and consulted on site and personnel security matters for Major League Baseball. Id. He also is the author of a 1990 book called Breaking the Mob. Id.

Just as Mr. Peloquin and Mr. Bornhofen were preliminarily qualified to testify, so too is Mr. Friel. By substituting Friel's name for the plaintiffs expert, Judge Reed's conclusion is equally applicable:

Under the applicable standard, the specialized knowledge of the expert may be derived from practical experience. In light of the practical experience and background in providing corporate security services, Mr. [Friel] has satisfied the Court that he possesses specialized knowledge beyond the average layman in the area of security for commercial properties. . . . I therefore conclude that Mr. [Friel] is preliminarily and generally qualified to testify at trial as an expert witness on the subject of what security measures would make the activities of patrons at bars, restaurants, nightclubs and casinos safe during their intended visit.

Bethea, 2002 WL 31859434, at *4

For the purposes of determining foreseeability, Mr. Friel analyzed the incidents and reports compiled by Divas management and submitted for his review for the three-year period preceding Mr. Bethea's shooting death in 1999. (Pls.' Mot., Ex. C at 3). For 1996, he found 20 different incidents, 12 involving conduct of unruly patrons dealt with by security hosts; four reports involving dancers harassed by patrons and dealt with by security hosts; two reported hospital cases; and two disputes between dancers. Id. at 4. Mr. Friel found that a historical analysis of these events would not indicate that Mr. Bethea's murder or the murder of anyone else was foreseeable. Id.

In 1997, Mr. Friel found six reported incidents including the vandalizing of two cars; two thefts from parked vehicles; two reports of unruly patrons in the club; and one report of improper touching of a dancer. Id. Not included among the 1997 reports was an incident involving a shooting death in the Divas parking lot. Id. Based on deposition testimony, an armed assailant with a personal problem with one of the Divas security hosts entered the club and attacked the host, who disarmed the assailant, but during the struggle the host was shot in the leg, and the assailant was killed in self-defense. Id. The security host was not prosecuted. Id. Mr. Friel found that "this one incident of an armed intruder might serve to heighten the awareness of management and the security hosts to their own exposure and vulnerability, but is in no way predictive of the robbery-murder that occurred on February 8, 1999." Id. at 5.

A review of the 1998 incident reports showed seven separate incidents involving either unruly patrons or customer disputes dealt with by the security hosts with no violent conduct. Id. Mr. Friel concluded that these incidents would not indicate foreseeability of the murder of Mr. Bethea or anyone else on the property. Id.

For 1999, Mr. Friel found six incidents, all reported after Mr. Bethea's murder. Id. Of those reported incidents, three involved unruly patrons improperly touching dancers; one represented a dispute between dancers; one concerned a hospital case involving an intoxicated patron, and one represented a fight that occurred outside the club. Id. Mr. Friel found that "[e]ven though these incidents occurred after the Bethea death, and cannot be considered for the concept of foreseeability, the incidents remained consistent in that they represented the same pattern of unruly patrons, and disputes between dancers." Id.

An additional five reports submitted by Divas referred to incidents by day and date without a year, and Mr. Friel assumed for the purposes of analysis that those incidents preceded Mr. Bethea's murder. Id. Those reports included an incident involving injuries to patrons from slipping on water and improperly jumping on stage; a fight between dancers; and a dancer complaining of being improperly touched. Id. at 5-6.

Mr. Friel's report concludes that based upon the information he reviewed, Divas management should have believed that its principal security issue involved disturbances created by patrons inside the club and should have directed its security efforts toward controlling such incidents. Id. at 6. He writes, without support, that "disorderly conduct and mutual combatants, by-and-large, have been decriminalized by law enforcement and district attorneys, with the local police instructing the participants to seek a private criminal complaint if, upon due consideration, they feel so inclined." Id. He goes on to say that 91.84 percent of all reported incidents at Divas in the relevant time period were non-criminal in nature and occurred within the club itself, not the parking lot, and therefore "it would stand to reason management should then devote ninety percent of their security efforts to incidents occurring within the club. That is exactly what the management of Diva's did." Id. at 7.

Mr. Friel goes on to observe that all the reported incidents at Divas trended downward from 1996 to 1999, indicating management's recognition of known risks and implementation of security measures to address those risks. Id. He also notes that none of the reported incidents occurred in February, which led him to conclude that "February, for whatever reason, was a slow time of the year from an analytical and security perspective."Id. As for why Mr. Bethea was killed at Divas, and not one of the three other places he visited immediately before his death, Mr. Friel opines, without support, that although speculating as to the motivation of killers is ordinarily beyond the scope of expert opinion, "there does [sic] exist theories within criminal causation that may provide insights into why the killers acted when they did." Id.

Mr. Friel discusses the criminal history of Dewayne Housely, Mr. Bethea's killer, and states the following:

His violent past, and his willingness to employ violence; his total disregard for other human beings or their suffering resulted in the young man being almost impossible to defend against. To suggest that the placement of surveillance cameras, closed circuit cameras, or similar cosmetic security features would serve as a deterrent to this type of individual is an egregious mistake.

Id. at 11.

The report concludes, with reference to an undated British and American study of the impact of closed-circuit television on reducing crime, that the "effectiveness of cameras as a deterrent to crime has never been empirically established and in fact considerable evidence exists to the contrary." Id. Mr. Friel states that the videotape of the main entrance and vestibule of Divas showed a clearly lit main entrance, and he then asserts, without support, that the standard of lighting was consistent with what is reasonable and adequate for an entrance to a business and a parking lot. Id. at 11-12.

Regarding security personnel, Mr. Friel notes that although the security host was not present at or near the entrance to the club at the time of the shooting, "[g]iven the viciousness and determination of Dewayne Housley, it is implausible to suggest that the presence of an unarmed security host(s) present at the main entrance would have prevented the death of Charles Bethea." Id. at 12. Mr. Friel states, without support, that the purpose of unarmed security personnel is to deter, detect, and report, but that they are not expected to act like police officers not are they expected to confront armed and dangerous people. Id.

Mr. Friel concludes his report as follows:

It is therefore my opinion, expressed with a reasonable degree of professional certainty, and based upon my examination of the material provided for my review, my experience, training, and education that this crime was not foreseeable, there existed no notice that a robbery murder was likely to take place at Diva's on February 8, 1999 and that those who owned or controlled the property acted reasonably to provide adequate security at 6201 Bristol Pike prior to and at the time of the murder of Charles Bethea.

Id. at 14.

Mr. Friel's expert report shows that he reached his opinion by reviewing deposition testimony and reports of various witnesses, including the excluded expert witnesses; police investigation reports; and photographs and diagrams of Divas and its surrounding parking lot.Id. at 15.

Once again substituting Friel's name for the prior proposed expert, the Court agrees with Judge Reed's conclusion in granting the previousDaubert motions in this case:

Because the proffered testimony is not scientific in nature, the methodology need not be subjected to rigorous testing for scientific foundation or peer review. Nevertheless, the expert must still provide a methodology that can be proven to be reliable. I find that [defendants] have failed to establish any reliable methodology utilized by Mr. [Friel]. . . . The expert must explain the means by which he reached his conclusions, and such means must satisfy at least one of the Daubert factors of reliability. In light of Mr. [Friel]'s responses and statements, his analysis appears to be no more than his instinctive reaction to the materials provided. He cites to no industry standard for his opinions on the requisite necessities for adequate security, nor does he provide any explanation that could be tested or subjected to peer review as to how he has reached these opinions. [In his entire report, he cites to only one study, a reference in a footnote to an undated British and American study of the effect of closed-circuit television on reducing crime (Pls.' Mot., Ex. C. at 11)]. "An `expert's opinion must be based on the methods and procedures of science rather than on subjective belief or unsupported speculation.'" Oddi v. Ford Motor Co., 234 F.3d 136, 158 (3d Cir. 2000) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d at 742). . . . The Court determines that the proffered opinion poses no benefit in assisting "the trier of fact to understand or determine a fact in issue" as required under Rule 104(a) and Daubert. The jury here can use its own common sense as juries do daily in deciding whether defendants were negligent.

Bethea, 2002 WL 31859434, at *5 (footnotes omitted).

Defendant has made no showing that Judge Reed's analysis was incorrect, and another reason for using that analysis is to provide consistent rulings in this case.

Further, Mr. Friel's report at no time discusses what is custom and usage in the industry, and the Court intimates no opinion as to whether custom and usage testimony would be admissible if offered at trial. Cf. Ebasco Services, Inc. v. Pennsylvania Power Light Co., 460 F. Supp. 163 (E.D. Pa. 1978) (Becker, J.).

The Court concludes that Mr. Friel's proffered testimony is inadmissible as expert testimony under Rule 702.

IV. Conclusion

For the reasons stated above, Plaintiffs' Motion to Exclude Testimony of Defendants' Expert Witness will be granted.

An appropriate Order follows.

AND NOW, this 19th day of May, 2003, upon consideration of Plaintiffs' Motion to Exclude Testimony of Defendants' Expert Witness (Doc. No. 44), Defendants' response thereto, and oral argument held on April 28, 2003, it is hereby

ORDERED that Plaintiffs' Motion is GRANTED.