## Facts

- Eduardo Burkhart, a deaf passenger, and his deaf companion boarded a WMATA Metrobus and paid a fare lower than the disability fare.
- The bus operator, Archie Smith, attempted to collect the correct fare, but Burkhart and his companion did not understand due to their deafness.
- A confrontation followed, culminating in an exchange of blows between Smith and Burkhart.
- At the Pentagon station, Burkhart exited and sought a transit police officer; the parties disputed whether Burkhart pointed at Smith or pressed a finger into Smith’s chest.
- Smith grabbed Burkhart’s finger; Burkhart kicked Smith in the groin; Smith then picked up a stick before being restrained.
- WMATA Transit Police Officer Jonathan Gray arrived and communicated with Burkhart through written notes; Burkhart said he requested a sign-language interpreter, while Gray denied any such request.
- Burkhart sued WMATA and Smith, asserting assault, battery, gross negligence, and intentional infliction of emotional distress; claims against WMATA also included negligent hiring, training, and supervision, and violations of the ADA and Rehabilitation Act based on ineffective communication.
- At trial, Burkhart offered expert testimony asserting, using regulatory phrasing, that the officer’s communication with Burkhart was not “as effective as” communication with non-disabled persons.
- The jury found WMATA directly liable for negligent hiring, training, and supervision and for ADA/Rehabilitation Act violations, and vicariously liable for assault, battery, and intentional infliction of emotional distress.

## Issues

1. Whether the district court erred by admitting expert testimony that effectively stated legal conclusions about ADA and Rehabilitation Act compliance, and whether that error required reversal.
2. Whether WMATA’s sovereign immunity barred tort claims for negligent hiring, training, and supervision because those functions are discretionary.
3. Whether WMATA could be held vicariously liable for the bus operator’s alleged assault, battery, and intentional infliction of emotional distress arising from the altercation.

## Decision

- The court reversed the judgment on the ADA and Rehabilitation Act claims because the expert’s testimony improperly stated legal conclusions and materially prejudiced WMATA.
- The court reversed the judgment on negligent hiring, training, and supervision because those decisions are discretionary governmental functions protected by WMATA’s sovereign immunity.
- The court affirmed the judgment holding WMATA vicariously liable for assault, battery, and intentional infliction of emotional distress.

## Legal Principles

- Expert testimony may assist the factfinder with specialized knowledge but may not instruct the jury on the governing law or apply legal standards in a manner that amounts to a legal conclusion.
- When expert testimony recites statutory or regulatory language and then declares whether conduct satisfied that legal standard, it risks usurping the roles of judge and jury and may require reversal if prejudicial.
- WMATA, as an interstate compact entity, retains sovereign immunity except to the extent waived; immunity extends to discretionary, policy-based functions analogous to discretionary-function immunity.
- Hiring, training, and supervision decisions are generally discretionary because they involve policy judgments and resource allocation, rather than fixed, ministerial duties.
- Discretionary-function immunity for policy-level decisions does not necessarily bar respondeat superior liability for operational torts committed by employees within the scope of employment.

## Conclusion

The D.C. Circuit set aside the jury’s findings of ADA/Rehabilitation Act liability and negligent hiring, training, and supervision because the ADA verdict rested on improper expert legal-conclusion testimony and WMATA was immune for discretionary personnel functions, but it left intact WMATA’s vicarious liability for the bus operator’s intentional torts arising from the incident.


Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207 (D.C. Cir. 1997)