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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

APRIL DEBOER, et al,

Plaintiffs,

v

RICHARD SNYDER, et al

Defendants.

Civil Action No. 12-cv-10285HON. BERNARD A.

FRIEDMAN

MAG. MICHAEL J.

HLUCHANIUK

STATE DEFENDANTS

RESPONSE INOPPOSITION TO

PLAINTIFFS MOTION IN

LIMINE TO EXCLUDE

TESTIMONY OF DRS.

ALLEN AND PRICE

Dana M. Nessel (P51346)

Attorney for Plaintiffs

645 Griswold Street, Suite 4300

Detroit, MI 48226

(313) 556-2300; Fax (313) 965-5580

[email protected]

Carole M. Stanyar (P34830)

Attorney for Plaintiffs

221 N. Main St., Ste. 300

Ann Arbor, MI 48104

(313) 819-3953

[email protected]

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TABLE OF CONTENTS

Page

Table of Contents ....................................................................................... iIndex of Authorities ................................................................................... iiControlling or Most Appropriate Authority ............................................. ivIntroduction ............................................................................................... 1

Argument ................................................................................................... 2I. Drs. Allen and Prices opinions and testimony are relevant,

reliable, and requisite, and, therefore, should not beexcluded. ........................................................................................... 2

A. Dr. Douglas Allen .................................................................... 61. Dr. Allen is Qualified to Offer an Expert Opinion

in this Case ..................................................................... 62. Dr. Allens Opinions are Reliable ................................ 11

3.

Dr. Allens Opinions would not waste time orcreate confusion. ........................................................... 14B. Dr. Joseph Price .................................................................... 15

1. Dr. Price is Qualified to Offer an Expert Opinionin this Case ................................................................... 15

2. Dr. Prices Opinions are Relevant ............................... 173. Dr. Prices Opinions are Reliable ................................. 18

Conclusion and Relief Requested ............................................................ 20Certificate of Service ............................................................................... 21

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INDEX OF AUTHORITIES

Page

CasesColeman v. Home Depot, Inc.,

306 F.3d 1333 (3d Cir. 2002) .................................................................. 5

In re TMI Litigation,

193 F.3d 613 (3d Cir. 1999), amended by 199 F.3d 158 (3d Cir.

2000) ....................................................................................................... 4

In re Unisys Savings Plan Litigation,173 F.3d 145 (3d Cir. 1999) .................................................................... 5

McCullock v. H.B. Fuller Co.,

61 F.3d 1038 (2d Cir. 1995) .................................................................... 3

McLean v. 988011 Ontario, Ltd.,

224 F.3d 797 (6th Cir. 2000) .................................................................. 5

Ruiz-Troche v. Pepsi Cola,

161 F.3d 77 (1st Cir. 1998) ................................................................... 18

Stilwell,

482 F.3d at 1192 ................................................................................... 13

Stollings v. Ryobi Technologies, Inc.,

725 F.3d 753 (7th Cir. 2013) ............................................................ 4, 19

United States v. Krenzelok,

874 F.2d 480 (7th Cir. 1989) .................................................................. 5

United States v. Stone,

848 F. Supp. 2d 714 (E.D. Mich. 2012) .................................................. 4

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RulesFed. R. Evid. 401 ....................................................................................... 2

Fed. R. Evid. 402 ....................................................................................... 2

Fed. R. Evid. 403 ....................................................................................... 5

Fed. R. Evid. 702 ........................................................................... 6, 11, 16

Fed. R. Evid. 702(2) ................................................................................. 11

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CONTROLLING OR MOST APPROPRIATE AUTHORITY

Authority: Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993);

Fed. R. Evid. 401, 402, 403, 702.

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INTRODUCTION

Plaintiffs challenge Drs. Allen and Price underDaubertv. Merrell

Dow Pharmaceuticals, but their arguments are without merit. The

federal rules contemplate a broad conception of expert qualifications.

As Rule 702 makes clear, a witness may be qualified as an expert by

knowledge, skill, experience, training, oreducation. Any one of these

bases, in other words, may be the source for a witnesss expertise. Both

Drs. Allen and Price have overwhelming knowledge, skill, experience,

training, andeducation to assist this Court in understanding the

rationales State Defendants have proffered in support of the Michigan

Marriage Amendment. Drs. Allen and Prices opinions and testimony

are relevant, reliable, and requisite. Further, if either Dr. Allen or Dr.

Price were to be found unqualified to provide expert testimony in this

case, the same would be true of Plaintiffs experts. Finally, Plaintiffs

arguments go to the weight of the doctors opinions and testimony, not

their admissibility. Accordingly, State Defendants respectfully request

that this Court deny Plaintiffs motion to exclude Drs. Allen and Price.

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ARGUMENT

I. Drs. Allen and Prices opinions and testimony are relevant,reliable, and requisite, and, therefore, should not be

excluded.

Plaintiffs challenges to Drs. Allen and Prices opinions and

testimony must be rejected. First, their opinions in this case are

relevant because they directly address the sole triable issue: the States

rationale for retaining the definition of marriage. Second, Plaintiffs

challenges to reliability go to weight, not admissibility. Finally,

Plaintiffs arguments for excluding their testimony not only lack merit,

but they would almost certainly require the exclusion of Plaintiffs

experts as well. Thus, Drs. Allen and Price should be permitted to

testify at trial.

If an experts opinions are relevant, they should be admitted. All

evidence must be relevant to be admissible. Fed. R. Evid. 402.

Evidence is relevant if: (a) it has any tendency to make a fact more or

less probable than it would be without the evidence; and (b) the fact is

of consequence in determining the action. Fed. R. Evid. 401. This is a

liberal standard. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,

587 (1993). For experts in particular, a proffered experts testimony

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must be sufficiently tied to the facts of the case such that it will assist

the trier of fact to understand the evidence or to determine a fact in

issue. Id.at 591. Specifically, there must be a fit or valid connection

between the experts reasoning or methodology and the pertinent

questionthe facts at issuebefore the court. Id.at 591-93.

Further, issues that pertain solely to the weight of the evidence do

not render the evidence inadmissible. While [t]rial judges must

exercise sound discretion as gatekeepers of expert testimony under

Daubert, they do not take on the role of St. Peter at the gates of

heaven, performing a searching inquiry into the depth of an expert

witnesss soulseparating the saved from the damned. McCullock v.

H.B. Fuller Co., 61 F.3d 1038, 1045 (2d Cir. 1995) (referencingDaubert,

509 U.S. 579). This is because [s]uch an inquiry would inexorably lead

to evaluating witness credibility and weight of the evidence, the ageless

role of the [trier of fact]. Id. If an attack on an expert witness pertains

only to the weight of the evidence, the experts opinion should be

admitted. See Daubert, 509 U.S. at 596 (Vigorous cross-examination,

presentation of contrary evidence, and careful instruction on the burden

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of proof are the traditional and appropriate means of attacking shaky

but admissible evidence.).

The reliability of an experts conclusions goes to weight, not

admissibility. If the experts testimony is based on well-established

science, the courts generally have concluded that reliability problems go

to weight, not admissibility. United States v. Stone, 848 F. Supp. 2d

714, 719 (E.D. Mich. 2012) (internal citations and quotation marks

omitted). An expert may provide expert testimony based on a valid

and properly applied methodology and still offer a conclusion that is

subject to doubt, but [i]t is the role of the [trier of fact] to weigh these

sources of doubt. Stollings v. Ryobi Technologies, Inc., 725 F.3d 753,

765-66 (7th Cir. 2013) (citingDaubert, 509 U.S. at 595). The experts

conclusions need not be unimpeachable to be admissible. Id.at 765.

The admissibility inquiry thus focuses onprinciplesand methodology,

not on the conclusionsgenerated by the principles and methodology.

In re TMI Litigation, 193 F.3d 613, 665 (3d Cir. 1999), amended by 199

F.3d 158 (3d Cir. 2000) (emphasis added).

Credibility issues also go to weight, rather than admissibility.

For example, expert witnesses cannot be excluded on the basis of bias.

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In re Unisys Savings Plan Litigation, 173 F.3d 145, 166 n.11 (3d Cir.

1999). In addition, attacks on the factual bases of an experts opinion

bear on the weight of the evidence rather than on its admissibility.

McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 801 (6th Cir. 2000)

(internal citation and quotation marks omitted).

Further, expert testimony, like all evidence, may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, waste of time, undue delay, or

needless presentation of cumulative evidence. Fed. R. Evid. 403.

However, there is a strong presumption that relevant evidence should

be admitted, and thus for exclusion under Rule 403 to be justified, the

probative value of evidence must be substantially outweighed by the

problems in admitting it. Coleman v. Home Depot, Inc., 306 F.3d 1333,

1343-344 (3d Cir. 2002). When in doubt, Rule 403 requires

admission[.] United States v. Krenzelok, 874 F.2d 480, 482 (7th Cir.

1989). [E]vidence that is highly probative is exceptionally difficult to

exclude. Coleman, 306 F.3d at 1344.

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A. Dr. Douglas AllenDr. Douglas Allen, a preeminent economist and social scientist,

will provide expert testimony that directly refutes Plaintiffs claim that

there is no difference between children raised by two heterosexual

parents and children raised by same-sex parents. He conducted an

exhaustive study on child outcomes based on family type and has

reviewed over 60 studies spanning decades on this issue. In fact,

Dr. Allen directly replicated the no difference study offered by

Plaintiffs expert, Professor Michael Rosenfeld, using both U.S. and

Canadian census date, and can explain the flaws in that study.

Dr. Allens testimony will assist this Court in understanding the

articulated rationales the State Defendants put forth in support of

Michigans Marriage Amendment and refute Plaintiffs arguments that

there is no rational basis for this Amendment.

1. Dr. Allen is Qualified to Offer an Expert Opinionin this Case

Rule 702 does not mention any specific credentials or qualifications;

instead it provides that an expert may be qualified based on a wide-

ranging spectrum of criteria, including by knowledge, skill, experience,

training, or education. Fed. R. Evid. 702. In short, the federal rules

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recognizeand even a brief review of Dr. Allens qualifications and

publications demonstratethat contrary to Plaintiffs suggestion,

professional academics, nor a specific profession, hold a monopoly on

expertise that may be helpful to this Court.

Indeed, as evidenced by Dr. Allens curriculum vitae(CV), and

comprehensively explained during his deposition, Dr. Allen has achieved

prominence in hisfieldsof expertiseempirical methods and

economicsand he has generated a body of written academic work

(including many published studies across a large number of fields). (See

Exhibit 1, Allen Deposition, 1/18/14, pp 22-23; see also Exhibit 2, Allen

CV).

As an expert social scientist, who obtained his first degree in

economics in 1983 and later received his Ph.D. in the same field,

Dr. Allen has dedicated his professional life to studying, writing, and

educating others about sociological issues, including the impact of family

structures encompassed by same-sex marriage. (Exh 3, 5; Exh 2). Of

import, Dr. Allen has been trained extensively in econometrics and in

statistics. Further, he has continuously worked with large data sets and

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large state level data sets in both the United States and Canada. (See

Exhibit 2).

During his tenure as an academic, Dr. Allen has published 46

articles in academic journals, and published 30 other articles in scholarly

books, encyclopedias, and other academic outlets. (Exh 3, 4). He has

published three academic books, and two undergraduate textbooks on

micro-economic theory. (Exh 3, 4). Allof Dr. Allens publications, one

book and twenty-seven of his articles relate to the family, an area he has

worked in since 1986. (Exh 3, 5; see also Exh 2). Four of his

publications and three working papers related to same-sex households;

two of his papers addressed empirical estimates of child outcomes. (Exh

3, 5; see also Exh 2).

Moreover, Dr. Allen has delivered many academic lectures and

public lectures, written extensively, and testified on the topic of same-sex

marriage. He has taught both undergraduate and graduate courses, and

regularly taught a fourth year seminar on The Economics of the

Family. (Exh 3, 6). He further has received numerous academic

awards and honors, including the Deans Silver Medal for outstanding

academic service in research and teaching, the endowed Burnaby

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Mountain Chair, two Erskine Fellowships at the University of

Canterbury, New Zealand, and a university wide teaching award. (Exh

3, 8).

Notably, Rule 702 contemplates that a witness may not testify as

an expert unless he or she testifies about matters that are beyond the

ability and experience of the average layperson. Uniquely, for a social

scientist, Dr. Allen has a broad, interdisciplinary background and

research record, including in mathematical and narrative research.

(Exh. 2.) He is being offered as an expert in empirical methods, in part,

to address the Plaintiffs interpretation of the social science empirical

evidence to claim that children in same-sex parented families experience

no difference in outcome measures compared to similar children in

opposite-sex parented families. (Exh 3.) As such, Dr. Allen can directly

refute the supposed no difference in statistical data claim that

Plaintiffs assert. In doing so, he will speak to the meaning of statistical

difference, fixed effects versus sample restrictions, the effect of gender

composition, the best method to control for family stability in a cross

section, and the importance of including the proper number of own

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children. None of these areas of testimony are within the scope of the

average person.

Finally, Dr. Allen and his work have been widely praised. He has

received numerous honors and awards as a result of his outstanding

academic service in research and teaching. (Exh 2.) While Plaintiffs

also challenge his qualification to be an expert based on his religious

beliefs, to be clear: Dr. Allen indicated that his religious beliefs were

irrelevant and played no role in his research.

In short, far from being unqualified to offer any expert opinion in

this caseas Plaintiffs would have itDr. Allen, a social scientist, is a

highly qualified, honored, and distinguished expert in the fields of

empirical methods and economics. (Exh 2 and 3.) Dr. Allens knowledge

extends to many different areas addressed in economics study of human

behavior, including family structures, marriage, divorce, sociology,

labor, law and legal regulations, and economic history. (Exh 1, pp 32-34;

Exh 2.) Indeed, with respect to the institution of the family and

marriage, as well as in econometrics, he has done extensive study and

writing; and, with regard to same-sex marriage in particular, he has

previously testified as an expert and he has addressed outcomes for

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children living with gay and lesbian parents in contrast to opposite-sex

parents. (Exh 2 and 3.)

2. Dr. Allens Opinions are ReliableDr. Allens opinions readily satisfy the requirements of Fed. R.

Evid. 702. First, his opinions are based on sufficient facts or data. His

view of child outcomes based on family type is the result of an exhaustive

survey of the child outcome literature he completed from 1995 through

2013. (Exh 3.) In addition, his literature review and his own research

covers 60 studies spanning decades and covering more than one country

where children have lived with same-sex parents.

Dr. Allen directly replicated the no difference in child outcomes

study offered by Plaintiffs expert, Professor Michael Rosenfeld. (Exh 1,

pp 35-39, 40.) His viewpoints regarding the child outcomes based on

family type are drawn from his own careful and comprehensive analysis

of the social science research that pertains to same-sex and opposite-sex

households. (Exh 2.)

Second, Dr. Allens opinions are based on reliable principles and

methods. Fed. R. Evid. 702(2). Dr. Allen utilized the standard

econometric tools of his trade to directly replicate Professor Rosenfelds

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study. The controls he put in place in replicating Professor Rosenfelds

study are widespread and commonly accepted in statistical analysis and

the field of economics, seeExh 3, and are verifiable empirically. And the

normative conclusions that he draws from his data follow logically from

that inquiry.

Dr. Allens predictions that there is, in fact, an actual difference in

child outcomes based on family type are based on reliable principles and

methods. Given the novelty of experiments with recognizing same-sex

relationships as marriages, empirical evidence of the effects of these

experiments on children is still relatively new. As such, Dr. Allen opines

that it takes a long time, and significant data resources, to provide

confident answers to questions regarding the effect of legal changes on

family behavior and outcomes. (Exh 3.)

His predictions that literature on child outcomes based on

household type is in its infancy, and, at best, preliminary, at worst,

political documents, are logical. His opinions were developed

thoughtfully, based on his own reflection and his systematic study of

social science proffered by both proponents and opponents of extending

marriage to same-sex relationships. (See Exh 3; Exh 1, pp 45-46).

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Indeed, Dr. Allens predictions about child outcomes based on family type

are at least as methodologically rigorous asand far more persuasive

thanthe predictions offered by Plaintiffs experts.

Moreover, Dr. Allens opinions reflect the same level of intellectual

rigor that characterizes the practice of an expert in the relevant field[s],

Kumho, 526 at 152, of, inter alia, empirical methods and economics. In

arguing otherwise, Plaintiffs simply disagree with Dr. Allens testimony.

The Courts gatekeeping function, however, is to test not the correctness

of the experts conclusions but the soundness of his methodology.

Stilwell, 482 F.3d at 1192.

Similarly, Plaintiffs claims that Dr. Allens opinions are unreliable

for the reason that, with respect to his critique of Professor Rosenfelds

work, they are misleading, as they do not reflect actual data is wholly

without merit. (Br. In Support of Pl. Mot. in Limineto Bar Testimony of

Allen and Price, Doc # 118, p 14). At his deposition Dr. Allen logically

and forcefully explained why Plaintiffs arguments do not undermine his

conclusions. (SeeExh 1, pp 35-38, 39-40). Dr. Allens expert report and

deposition testimony plainly addressed studies comparing children living

with intact biological families with children living with other family

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types, particularly same-sex households. (See, e.g., Exh 1 and 2).

Furthermore, Dr. Allens deposition testimony demonstrated that he is

conversant with the data comparing children in intact biological families

with children living in same-sex households. And Plaintiffs suggestion

that Dr. Allens opinions regarding children living with same-sex parents

are somehow misleading simply reflects a misunderstanding of

Dr. Allens opinions, as well as State Defendants theory of the case.

Finally, Dr. Allen has applied his principles and methods reliably to

the facts at issue in this case. Contrary to Plaintiffs claims otherwise,

Dr. Allens wealth of knowledge and analysis of the data, particularly his

direct replication of Professor Rosenfelds study, does measure the

outcomes of children living in same-sex and opposite-sex households, and

find that there are actual differences in the outcomes of children based

on family type.

3. Dr. Allens Opinions would not waste time orcreate confusion.

For the aforementioned reasons, Dr. Allen testimony would assist

the trier of fact to understand the evidence and determine facts in issue.

Rather than creating needless confusion, Dr. Allens testimony would

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clarify issues in this matter and address articulated rationales put forth

by State Defendants in support of the Michigan Marriage Amendment.

B. Dr. Joseph PriceDr. Joseph Price will also provide expert testimony that directly

refutes Plaintiffs claim that there is no difference for children raised

by two heterosexual parents and children raised by same-sex parents.

He, along with Dr. Allen, directly replicated the no difference study

offered by Plaintiffs expert, Professor Rosenfeld, and he too can explain

the flaws in that study.

Because Dr. Prices testimony will assist this Court in

understanding the articulated rationales the State Defendants put forth

in support of Michigans Marriage Amendment and refute Plaintiffs

arguments that there is no rational basis for the Amendment, it should

not be excluded from the trial.

1. Dr. Price is Qualified to Offer an Expert Opinionin this Case

Again, Rule 702 does not require any specific credentials or

qualifications; instead, it allows for expert qualification based on a

wide-ranging spectrum of criteria, including knowledge, skill,

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experience, training, or education. Fed. R. Evid. 702. Dr. Price is an

expert empirical economist, as evidenced by his report, CV, and

deposition testimony. (See Exhibit 4, Dr. Joseph Price Expert Report,

2-7 ; see also Exhibit 2, Price Dep, 1/18/14, pp 65-67). Indeed, he

specializes in the area of large data sets and has been entrusted on

numerous occasionsmore than 40 timeswith the review of others

research and methodology. (Exh 4, 4; Exh 2, pp 67).

While it is true that Dr. Price has only published one paper in the

specific area of outcomes for children being raised by same-sex

couples, his research has focused on the broad topics of economics of

the family and family structures. (Exh 5, pp 9, 28, 30, 47, 63). Further,

this same critique can be made of Plaintiffs expert, Professor Rosenfeld,

whose study Dr. Price replicated.1 Yet, Plaintiffs offer him as an expert

in this case.

Finally, Dr. Price does not need, as Plaintiffs insist, to be an

expert in child outcomes to testify about his replication of Professor

Rosenfelds study; rather, more important is his expertise in empirical

1Likewise, the fact that Dr. Price has never been qualified as an expert

before is not determinative of whether he should be qualified in this

case. Indeed, the same is true of Plaintiffs experts, Drs. Rosenfeld and

Gatesneither have ever been qualified as an expert witness.

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methodsa qualification that Plaintiffs have not even challenged. For

all of these reasons, Dr. Price is qualified to provide expert testimony in

this case and he should not be excluded.

2. Dr. Prices Opinions are RelevantPlaintiffs challenge regarding the relevance of Dr. Prices

testimony is nothing more than a red herring. Plaintiffs assert that

Dr. Price is not relevant because he, acknowledges that he can offer

neither a layperson nor expert opinion on whether data on child

outcomes is relevant to the questions surrounding same-sex marriage or

second-party adoption for same-sex couples. (Br. In Support of Pl. Mot.

in Limineto Bar Testimony of Allen and Price, Doc. #118, pp 10-11).

But Dr. Price repeatedlymade clear at his deposition that he was

offering an expert opinion regarding outcomes of children being raised

by different family types, based on his study. (Exh 5, pp 34, 35, 37-39.)

He further stated that the effect his opinions may (or may not) have on

the ultimate legalquestions in this case is outside his area of expertise

and a matter for the Court to decide.

Dr. Prices testimony iswithout a doubtrelevant. He is one of

three sociologists that replicated Professor Rosenfelds study. If

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Professor Rosenfelds opinions are relevant, then so are Dr. Prices.

Accordingly, Plaintiffs relevancy challenge is meritless.

3. Dr. Prices Opinions are ReliableAgain, Plaintiffs argument that Dr. Prices opinions are

unreliable must be rejected. First, Plaintiffs make the absurd

insinuation that Dr. Prices opinions are unreliable because he is the

third author on his study. (Br. In Support of Pl. Mot. in Limineto Bar

Testimony of Allen and Price, Doc. #118, p 11.) However, as Dr. Price

explained at his deposition, he, in fact, did most of the empirical work

for the report. (Exh 5, p 27.) Thus, the ordering of the names has

nothing to do with the breakdown of the work. Rather, it is merely a

function of standard practice for economists to list authors

alphabetically, and he was third in that ordering. (Exh 5, pp 27, 149.)

Plaintiffs also argue that Dr. Prices opinions are unreliable

because Plaintiffs experts disagree with them. However, this is not a

proper basis for exclusion underDaubert. Indeed, Daubertneither

requires nor empowers trial courts to determine which of several

competing scientific theories has the best provenance. Ruiz-Troche v.

Pepsi Cola, 161 F.3d 77, 85 (1st Cir. 1998). These are matters of

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weight and credibility, not admissibility. See Stollings, 725 F.3d at 765-

66. Therefore, Plaintiffs reliability arguments must be rejected.

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CONCLUSION AND RELIEF REQUESTED

State Defendants respectfully request this Court deny Plaintiffs

Motion in Limineto Exclude Testimony of Drs. Price and Allen.

Respectfully submitted,

Bill Schuette

Attorney General

/s/ Kristin M. Heyse

Kristin M. Heyse

Attorneys for State Defendants

Mich. Dept of Attorney General

Health, Education & Family

Services Division

P.O. Box 30758

Lansing, MI 48909

(517) 373-7700

Dated: February 14, 2014 (P64353)

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CERTIFICATE OF SERVICE

I hereby certify that on February 14, 2014, I electronically filed

the above document(s) with the Clerk of the Court using the ECF

System, which will provide electronic copies to counsel of record.

/s/ Kristin M. Heyse

Kristin M. Heyse

Attorneys for State Defendants

Mich. Dept of Attorney General

Health, Education & Family

Services Division

P.O. Box 30758

Lansing, MI 48909

(517) 373-7700

Dated: February 14, 2014 (P64353)

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April Deboer, et al v. Richard Snyder, et al

USDC-ED No: 12-cv-10285

Honorable Bernard A. Friedman

Magistrate Judge Michael J. Hluchaniuk

INDEX OF EXHIBITS

Exhibit 1 Dr. Douglas W. Allen Deposition Transcript

Exhibit 2 Dr. Douglas W. Allen CV

Exhibit 3 Expert Witness Report of Dr. Douglas W. Allen

Exhibit 4 Dr. Joseph Price Expert Report

Exhibit 5 Dr. Joseph Price Deposition Transcript

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Exhibit 2


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Exhibit 3


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Exhibit 4


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Exhibit 5


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Date post:	03-Jun-2018
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2:12-cv-10285 #136

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