Fitting Room Internet Voyeurism Expert Inadmissible
An expert witness in one area is not ipso facto an expert in another, a U.S. District Court noted in its rejection of a technology expert whose proffered testimony bore "little relationship" to his expertise.
Technology expert and licensed attorney Steven Stern, who had expertise in identifying and removing unwanted images from the Internet, was retained by the plaintiff in her suit against American Eagle Outfitters Retail Company (AEO), which she sued after an iPhone was placed under her fitting room door while she was fully nude from the waist down at one of the company's Pennsylvania stores.
In Jane Doe v. AE Outfitters Retail Co., US District Court, D.Md., Dec. 17 2015, the plaintiff sued in Maryland for claims under Pennsylvania law of negligent security, premises liability, negligent supervision and negligence. AOE removed the suit to the U.S. District Court, which found that Maryland choice-of-law rules governed.
On the issue of liability, Stern had opined that news stories about clothing store customers being filmed in fitting rooms, websites about "fitting room voyeurism" and the availability of cellphones that take videos made the violation of privacy foreseeable.
In his decision, U.S. District Judge William D. Quarles, Jr. found no special skill or special knowledge underlying Stern's liability opinions. Stern's foreseeability opinions stemmed from a basic Internet search and "common knowledge", and they embraced a legal conclusion of foreseeability, making them "less helpful." Justice Quarles found Stern's liability opinion inadmissible as an "expert" opinion under Daubert.
Stern also opined on damages that monitoring the Internet for the plaintiff's image would be difficult, and "more than likely impossible" for her to remove any images or videos from the Internet. She would have to pay for Internet monitoring for her image for many years, which he estimated would cost $12,000 per year. She would also face $15,000 in costs to examine the electronic devices of the perpetrator, if he was ever caught.
Stern did not know if the plaintiff's image had been posted online, if she had searched for it or had any costs related to monitoring or removal of her image. He had no knowledge of whether or not she intended to monitor the Internet for her image.
Justice Quarles found Stern's damages testimony "speculative". He had no factual basis for his opinions on the costs the plaintiff would incur, making them inadmissible.
While AEO succeeded in excluding Stern's testimony, it failed in its motion to exclude the liability testimony of the plaintiff's retail security and premises liability expert witness, Jack Dowling.
Dowling opined that the incident was foreseeable. AEO argued that Dowling was unqualified as he had "… no specific experience with the fitting rooms in retail apparel stores" and "does not know what is standard in other retail stores." AEO challenged Dowling's opinion for its reliance in part on news reports and its failure to consider local crime statistics or obtain information from professional groups about fitting room invasions of privacy.
Justice Quarles found AEO's argument "wrong" in its challenge to Dowling's qualifications. While Dowling's 35 years as a security professional were primarily in campus security, he was certified as a retail security "protection professional", was experienced in retail fitting room litigation, and formed his opinions based on industry guidelines, specifically the 2003 ASIS International General Security Risk Assessment Guideline.
As for Dowling's failure to use local crime statistics or consult professional groups to determine risks, Justice Quarles noted that ASIS guidelines stated only that security experts may consider such information to determine risk. As for Dowling's use of news reports, Justice Quarles found the issue could be best dealt with by cross-examination, where a jury could determine any deficiencies in Dowling's opinion. Dowling's methodology was defensible and his opinions were based on reliable principles and techniques.
Retail security and premises liability have a relatively long history in litigation, as well as some generally accepted practices by experts in those fields; Internet voyeurism has not.