Burke v. Air Serv Int'l, Inc.
775 F. Supp. 2d 13
D.D.C.2011Background
- Burke, a security contractor in Afghanistan, sues Air Serv International and LBG for injuries from a February 22, 2004 ambush in Taluqan during a USAID project.
- LBG contracted to oversee infrastructure projects; Air Serv provided helicopter transport.
- Burke was security for LBG’s schools and clinics project via USPI; he carried a sidearm and conducted patrols near the helicopter.
- The ambush wounded Burke, killed Burdorf, seriously injured Wheeler-Wallace, and Nazarwall assisted by calling for help.
- Burke alleges negligent security measures, negligent hiring/retention of USPI, and intentional infliction of emotional distress; seeks compensatory and punitive damages.
- Court grants summary judgment for defendants, finding DC expert-testimony rule applicable and Burke failed to designate an expert; also concludes Burke assumed the risk of injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DC expert-testimony rule applies in diversity case | Burke argues the rule is procedural and not binding in federal court. | Defendants contend the rule is substantive and governs in DC tort law. | DC expert rule is substantive and applicable in diversity action. |
| Whether expert testimony is required for Burke's negligence claims | Burke claims jurors can judge based on common knowledge. | Claims involve security, aviation, and training; require expert standard of care. | Expert testimony required; Burke failed to designate an expert. |
| Whether Burke assumed the risk of injury | No evidence the specific risk of the Taluqan flight was known to Burke. | Burke knowingly faced general security risks and flight dangers. | Burke assumed the risk; no recovery possible. |
Key Cases Cited
- Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195 (D.C.1991) (expert necessity in negligence where not within common knowledge)
- Drs. Groover, Christie & Merritt v. Burke, 917 A.2d 1110 (D.C.2007) (choice-of-law in tort (modified governmental interest test))
- GEICO v. Fetisoff, 958 F.2d 1137 (D.C.Cir.1992) (forum law applies when jurisdictions share same policies)
- Hanna v. Plumer, 380 U.S. 460 (Supreme Ct. 1965) (Erie: apply state substantive law, federal procedural law)
- Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902 (D.C.Cir.2006) (expert requirements in security context)
- Beard v. District of Columbia, 235 F.3d 637 (D.C.Cir.2001) (expert testimony in police procedures and security-related cases)