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Conforming With Daubert Rules

Posted on May 18, 2016 at 4:15 PM



Andrew P. Sutor



In order to achieve justice for your injured clients and bring your premises liability/negligent security case to a proper and successful conclusion you, and your expert, must follow stringent rules and legal standards laid down in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). In essence, your expert needs to follow a scientific approach to the case and the analysis of the probative data therein in order to provide you with a strong opinion that supports your case.


This daunting task is not as easy as it first may seem. Your clients have been injured, oftentimes while lawful business guests of your defendants. The defendants had a legal duty to provide a reasonable level of care to protect your clients and others from the foreseeable risk and the eventual harm that may be caused by their failure to do so. You essentially need reliable and accurate data on the actual risk facing your clients at the time and place of the incident in order for your expert to take a scientific approach in developing important evidence relevant and material to the matter at hand. The accurate analysis of that fundamental data is critical to proving negligence on the part of the defendants and establishing the proximate cause of your client’s injuries.


Any experienced litigator understands that establishing foreseeable risk in the matter at hand is often extremely difficult to prove. There are significant obstacles to the acquisition of truthful and accurate risk data in many premises liability/negligent security cases. Not the least among them is the despicable practice of “willful ignorance” by defendants, which is part and parcel of ignoring the foreseeable risk facing your client. Another significant impediment is “spoliation of evidence” which is far too often widespread and pervasive in many such cases. Sadly, the truth is often hidden, obscured, concealed, disguised, obfuscated, and misrepresented by defendants and their enablers who are primarily interested in evading responsibility for their obvious negligence.

Furthermore, experience has shown that quite often getting the critical data you need is denied, thwarted, or delayed during the discovery process. You know the drill- defense counsel frequently use excuses to your request for relevant and important information as being “overly broad” or “too cumbersome” to produce. Daunting obstacles indeed, but you must get the truth to prove your case to the court.


Fortunately, an experienced and astute expert who is well-versed in crime, crime reporting, and risk analysis is available to assist counsel in getting the truth of the matter. Your expert can obtain important crime and risk data from public and private sources, and from the media. However, it takes a team effort, in that your expert must work hand-in-hand with counsel to obtain other important probative data and records through discovery, depositions, and OPRA records. A knowledgeable and effective expert that specializes in such cases will be able to provide counsel with a list of potential evidence important for a scientific-based opinion that will pass the court “gatekeepers” under the Daubert standards.


A case in point is one whereby defendant’s DCR went on national television claiming that serious crime occurring in his billionaire’s casino hotel was “insignificant.” Acting on the advice of his expert the plaintiff’s attorney prosecuting a vicious garage robbery assault civil case obtained Computer Aided Dispatch Reports (CAD) from the local police department for the year of the incident and four years previous. Most modern-day police departments retain this computer-based crime risk data that is a reliable source of risk information for analysis by your expert. In the above described case the “insignificant” crime characterization by the defendant’s “spin doctor” amounted to 11,000 police actions and reports of hundreds of serious crimes at the defendant’s largely unprotected property including four murders at the defendant’s hotel in a single year! This crime/risk data indicated that serious crimes at the defendant’s casino hotel were greatly increasing (+99%) along with the defendant’s significant cuts (-31%) in security and surveillance budgets and staffing during the same five year period. When married with other data on crime and risk information such as this can make your case.


Armed with such significant and incriminating data there is obviously clear evidence as cited in the above example that no court could ignore the facts that the defendant’s standard of security care provided to his guests was unreasonable and even quite reckless.

This type of scientific approach enables your security expert to provide you with a strong opinion in considering the true foreseeable risk, the unreasonableness of the security protection provided, and actual totality of the circumstances in determining the level of negligence and the proximate cause of your client’s injury. Although Daubert is a federal rule, it is highly recommended that it be followed in state cases as well. Getting to the truth of the matter will significantly assist counsel in proving foreseeable risk and, ultimately, justice for your injured client.

Andrew P. Sutor is a Principal at Sutor & Associates, LLC, which provides professional security consultation and expert witness services for law firms and attorneys pursuing premises liability and negligent security cases. He can be reached at [email protected] or at 609.822.2626

Categories: Premises Security Cases

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