Jane Doe v. Ae Outfitters Retail Co.

JANE DOE, Plaintiff, v. AE OUTFITTERS RETAIL CO., Defendant.

CIVIL NO.: WDQ-14-508

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, NORTHERN DIVISION

December 17, 2015

MEMORANDUM OPINION

Jane Doe¹ sued AE Outfitters Retail Co. ("AEO") for negligence in the Circuit Court for Baltimore City. ECF No. 2. AEO removed the suit to this Court. ECF No. 1.² Pending are AEO's motions to exclude Doe's expert testimony, ECF No. 33, and for summary judgment, ECF No. 35. Because these matters are well-briefed and supported, no hearing is necessary. See United States v. Davis, 602 F. Supp. 2d 658, 663 (D. Md. 2009); Local Rule 105.6 (D. Md. 2014). For the following reasons, AEO's motions will be granted in part and denied in part.

I. Background

A. Facts³

1. Overview of the Parties and the Incident

AEO owns American Eagle, a men's and women's clothing store that largely caters to 18 to 25 year old customers. ECF Nos. 35-2 at 4; 38-3 at 15.⁴ The York, Pennsylvania American Eagle store is a "medium size store" located in the York Galleria Mall. ECF No. 35-5 at 3-4. Doe lives in Baltimore County, Maryland. ECF No. 38-2 at 2.

On October 22, 2012, Doe went to the York Galleria American Eagle store (the "store") to shop for jeans. ECF Nos. 35-3 at 3; 38-2 at 15.⁵ The unisex fitting rooms are located in the back of the store, and are not visible from the front of the store. ECF No. 38-3 at 4. The fitting rooms had gaps above and below the doors. ECF No. 38-3 at 4 (verifying the accuracy ofphotographs showing fitting room doors).⁶ AEO sales associate Susan Lindstrom placed a male customer in a fitting room before placing Doe in another fitting room; it was Doe's third visit to the fitting rooms. ECF Nos. 35-3 at 6; 38-2 at 23; 38-6 at 4.⁷ Lindstrom left the fitting rooms unattended to find Doe additional sizes of jeans. ECF No. 38-6 at 5.⁸

Because she was not wearing underwear, Doe was naked from the waist down while trying on the jeans. ECF No. 35-3 at 4-6. After pulling up a pair of jeans, she noticed a black iPhonepositioned under the fitting room door. Id. at 6; ECF No. 38-2 at 23. A male customer had placed the iPhone under the door and may have taken a picture or video of her. ECF No. 35-3 at 7; see also ECF No. 38-2 at 37. Doe screamed to alert the sales associates and ran after the man, who had fled the store. ECF No. 38-2 at 24-25. Lindstrom chased the man, but lost him. ECF No. 38-6 at 5. Lunz called the police, who arrived soon thereafter, but the man was never caught. ECF Nos. 38-3 at 12; 38-7 at 1-2; 38-8 at 1.⁹

2. AEO's Policies and Procedures

AEO has security policies and procedures to protect customers' privacy and safety in the event of an emergency. ECF No. 35-2 at 5-6. To protect customers' privacy, the fitting rooms "are in a segregated area" away from the sales floor, and the fitting room doors lock automatically. Id. An employee should monitor the fitting rooms "whenever possible," in part,so that customers would not have to leave the fitting room for additional sizes. Id. at 7; ECF Nos. 38-3 at 10; 38-5 at 3.

The store did not have security cameras or security guards. ECF No. 35-5 at 3. To protect customers, employees "were trained to talk to all the customers . . . and know who's in the store if something were to happen." Id. The store "[tried] to zone [the] employees so that [they] had views of every single area." Id. Employees "were assigned to check in on people in the fitting rooms." Id.

3. Prior Similar Incidents

The store had not had prior similar incidents, and generally had a low level of crime. ECF Nos. 35-5 at 3-4; 35-6 at 3; 38-3 at 15; 38-9 at 4. However, three similar incidents had occurred at other American Eagle stores before October 22, 2012. ECF No. 38-9 at 4.¹⁰

4. Industry Standards

According to Sabella, unisex fitting rooms "are standard in the industry." ECF No. 35-2 at 8. Segregated fitting rooms are disfavored because store personnel would have to monitor twoentrances, which is "more difficult." Id.; ECF No. 38-3 at 15.¹¹ Sabella noted that the International Building Code, Americans with Disabilities Act, and local regulatory codes are relevant to fitting room design,- however, he did not believe there were "best practices" or official "industry standards" on fitting room design. ECF No. 38-5 at 27-28.

Doe's security expert Jack Dowling testified that he "think[s]" the industry standard on fitting room location in specialty retail stores is "where they can fit it in." ECF No. 38-12 at 49. Dowling does not know what the industry standard is in connection with whether retail specialty stores have associates monitor fitting rooms; however, one of AEO's competitors, "Abercrombie and Fitch," requires a sales associate "to remain permanently stationed in fitting rooms." Id. at 50.

According to Dowling, "the standard security practice in any industry," including the retail industry, "is to conduct a security risk assessment and, based on that assessment, to provide the necessary corrections or controls." Id. (emphasis added). However, "there is no evidence that [AEO conducted a] security risk assessment . . . to determine the obvious security flaws with less than full-length doors." ECF No. 38-10 at 3; see also id. at 5. An assessment would have disclosed that"realistic privacy" in unisex fitting rooms requires full-length doors, visibility from the main sales area, and dedicated monitoring. Id. at 4.

b. Procedural History

On December 30, 2013, Doe sued AOE in the Circuit Court for Baltimore County for negligence. ECF No. 2.¹² On February 20, 2014, AOE removed the suit to this Court. ECF No. 1. On March 31, 2015, AOE moved to strike Doe's expert testimony, ECF No. 33, and for summary judgment, ECF No. 35. On April 23, 2015, Doe opposed the motions. ECF No. 38. On May 7, 2015, AOE replied.

II. Analysis

A. Expert Testimony

1. Rule 702 and Daubert

Under Rule 702, expert testimony is admissible if it will assist the trier of fact and is (1) "based upon sufficient facts or data," (2) "the product of reliable principles and methods," and (3) "the principles and methods [have been applied] reliably to the facts of the case." Fed. R. Evid. 702. As the Daubert Court has explained, evidence is admissible under Rule 702 if "it rests on a reliable foundation and is relevant." Daubert, 509 U.S. at 597; see also Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S. Ct. 1167, 143 L.Ed.2d 238 (1999) (extending Daubert to "the testimony of engineers and other experts who are not scientists"). The proponent of the expert testimony must prove its admissibility by a preponderance of the evidence. Id. at 590.

As a threshold matter, the proffered expert must have "'some special skill, knowledge or experience,' concerning the particular issue before the court." Shreve v. Sears, Roebuck & Co., 166 F. Supp. 2d 378, 393 (D. Md. 2001) (quoting Ancho v. Pentek Corp., 157 F.3d 512, 517 (7th Cir. 1998)). "[W]hile the fit between an expert's specialized knowledge and experience and the issues before the court need not be exact[,] . . . an expert's opinion is helpful to the trier of fact, and thereforerelevant under Rule 702, 'only to the extent the expert draws on some special skill, knowledge or experience to formulate that opinion.'" Id. at 392-393 (quoting Ancho, 157 F.3d at 518).

Several factors may be relevant to the determination of reliability, including: (1) whether a theory or technique has been tested, (2) whether it has been subjected to peer review and publication, (3) the known or potential rate of error, and (4) whether the theory or technique is generally accepted within a relevant scientific community. Copper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001). The factors are "neither definitive nor exhaustive, and some may be more pertinent than others depending on the nature of the issue, the expert's particular expertise and the subject of his testimony." Newman v. Motorola, Inc., 218 F. Supp. 2d 769, 733 (D. Md. 2002).

2. AEO's Motion

AEO seeks to exclude Doe's technology expert Steven Stern, Esq., and her security expert Jack Dowling. ECF No. 33.

a. Steven Stern, Esq.

Doe seeks to have Stern testify as an expert on liability and damages. ECF No. 38 at 16. On liability, Stern opines that news stories about customers being filmed or observed in fitting rooms, websites about "fitting room voyeurism," and the availability of cellular phones capable of capturing anddisseminating images shows that the underlying incident was foreseeable. ECF No. 38-11 at 2-3. On damages, Stern opines that monitoring the Internet for Doe's image will be difficult and expensive, and "it is more than likely impossible" for Doe to remove any images from the Internet. Id. at 3.

i. Liability

AEO argues that Stern is not qualified to render an opinion about the foreseeability of the underlying incident or about whether a cellular phone can fit under a fitting room door to capture an image.¹³ ECF No. 33-1 at 11, 16. Doe argues that Stern's 25 years of information technology experience qualifies him to testify on the identified areas. ECF No. 38 at 16-18.

Stern is a licensed attorney and President of Legal Technology Solutions, LLC. ECF No. 38-11 at 4. He has "substantial experience in solving complex technology issues," and often advises law firms on "Internet-related privacy issues." Id. at 5.¹⁴ Most recently, he has consulted on casesinvolving online postings of a pre- and post-surgery nude image of a patient by a physician, and of "intimate moments" between a man and a woman by someone who stole the woman's laptop. Id. at 5-6. However, his work has focused on identifying and removing the images. Id. at 5. Stern's experience relevant to the matters about which he would testify "comes from nearly [20] years of experience and knowledge of Internet searching and Internet reputation restoration work." Id. at 7. Stern has testified once in court on "technology, electronic discovery, and preservation issues." Id....