What happens when the rules of evidence demands the use of an expert witness, but the Plaintiff refuses to engage one?
The easy answer is that it looks like the Plaintiff loses.
But it also results in outrageousness bordering on hilarity when the Plaintiff argues than an expert is unnecessary because jurors should know all they need to know from watching Westerns.
The plaintiff’s main bone of contention with the trial judge was that the plaintiff did not think he needed to present an expert witness to testify as to the standard of care owed by the defendant Air Service. But the D.C. Circuit, while expressing an admiration of the plaintiff’s military career and services, noted an important gap in his legal judgment. It disagreed noted that the applicable standard of care could be derived by lay jurors, for example, based on films:
“every juror will have seen” such films as High Noon. Perhaps. But even if they have, we are puzzled about what they could have learned from those films that would have been helpful to Burke’s case. After all, Marshal Kane (Gary Cooper) did not helicopter to his confrontation with the Miller gang. Nor did he carry, as Burke did, a 9-mm. pistol and AK-47 assault rifle. No, Kane walked to the fateful encounter protected only by two revolvers and a tin star. Moreover, he did so notwithstanding that the meeting could hardly have been regarded as an ambush: as the film’s title makes clear, each side knew precisely what time the showdown would take place.
Burke, __ F.3d at __.
The lessons the circuit drew from the movies was neither clear nor obvious. The circuit seemed boggled by the plaintiff’s arguments:
Burke insists — in all seriousness — that lay jurors could have intuited the proper standard of care from their knowledge of old Westerns. “Afghanistan,” he explains, “is comparable to the old ‘Wild West’ — lawmen, builders, farmers, ranchers, schoolteachers, entering savage areas subject to armed marauders and trying to establish peace, civilization and the rule of law.” Because “[e]very juror will have seen Gunsmoke or High Noon or the Outlaw Josey Wales or Lonesome Dove,” every juror will know the proper standard of care.
We do not understand what relevant standard of care jurors could have gleaned from these Westerns, let alone how it could have benefited Burke. As to the first point, it seems plain that films in which the heroes rode horses and carried six-shooters can tell the jury little about whether helicopters should be equipped with satellite radios and bulletproof blast mats, or whether security personnel should be equipped with body armor.
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