Date post: | 20-Jan-2016 |
Category: |
Documents |
Upload: | sexualminorityresear |
View: | 100 times |
Download: | 0 times |
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
APRIL DEBOER, et al.,
Plaintiffs,
-vs- E.D.Mich. No. 12-10285
Hon. Bernard A. Friedman
RICHARD SNYDER, et al.,
Defendants.
__________________________/
PLAINTIFFS’ DAUBERT MOTION TO PRECLUDE TESTIMONY
OF STATE DEFENDANTS’ PROPOSED EXPERT SHERIF GIRGIS
NOW COME THE PLAINTIFFS, April DeBoer and Jayne Rowse, et al.
by and through their attorneys, and move this Court, pursuant to Rules 104, 403,
and 702 of the Federal Rules of Evidence, and pursuant to the standards set forth in
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and its progeny, for an
order precluding the testimony of the State Defendants’ proposed expert Sherif
Girgis (or striking it after its presentation) based upon the following reasons.
1. State Defendants have advised that they will offer the testimony of Mr.
Girgis to support their claim that there is a rational basis for the two Michigan laws
challenged herein: the same-sex marriage ban and the ban on second parent
adoptions.
2:12-cv-10285-BAF-MJH Doc # 117 Filed 02/05/14 Pg 1 of 13 Pg ID 2453
2
2. This Court has indicated that it will entertain any motions made pursuant
to the Daubert decision, to preclude proposed expert testimony, simultaneous with
its consideration of the trial evidence in this case.
3. For the reasons set forth in the attached memorandum of law, this
witness clearly is not qualified to offer the proposed testimony offered.
4. In addition, the testimony of the witness is irrelevant to the questions
before this Court, the testimony is not based upon a reliable or discernible
methodology, and the testimony is otherwise unreliable.
5. In addition, the aforementioned testimony should not be admitted because
it lacks probative value, it will waste the Court’s time and it will create confusion.
WHEREFORE, based upon the foregoing reasons and based upon the facts
and argument set forth in the attached memorandum of law, Plaintiffs move this
Court, pursuant to Rules 104, 403, and 702 of the Federal Rules of Evidence, and
pursuant to the standards set forth in Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993) and its progeny, for an order precluding the testimony of the State
Defendants’ proposed expert Sherif Girgis.
Respectfully submitted,
s/Carole M. Stanyar s/ Dana Nessel
CAROLE M. STANYAR P34830 DANA M. NESSEL P51346
221 N. Main Street, Suite 300 645 Griswold Street, Suite 4300
Ann Arbor, MI 48103 Detroit, MI 48226
(313) 819-3953 (313) 556-2300
[email protected] [email protected]
2:12-cv-10285-BAF-MJH Doc # 117 Filed 02/05/14 Pg 2 of 13 Pg ID 2454
3
Dated: February 5, 2014 Attorneys for Plaintiffs
Of counsel:
s/Robert A. Sedler s/ Kenneth M. Mogill
ROBERT A. SEDLER P31003 Kenneth M. Mogill P17865
Wayne State University Law School MOGILL, POSNER & COHEN
471 W. Palmer Street 27 E Flint Street, 2nd Floor
Detroit, MI 48202 Lake Orion, MI 48362
(313) 577-3968 (248) 814-9470
[email protected] [email protected]
BRIEF IN SUPPORT OF PLAINTIFFS’ DAUBERT
MOTION TO PRECLUDE TESTIMONY OF STATE
DEFENDANTS’ PROPOSED EXPERT SHERIF GIRGIS
I. INTRODUCTION
Sherif Girgis, the State Defendants’ purported expert, fails to meet the
minimum requirements imposed by the Federal Rules of Evidence. He is not
qualified to testify as an expert. His flawed methodology and generic conclusions
render his opinion unreliable and irrelevant under Federal Rules of Evidence 104,
403, and 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). For the reasons explained herein, the Court should exclude Girgis’s
testimony in advance of trial. However, if the Court permits Girgis to testify,
Plaintiffs ask the Court to exclude his testimony from evidence or accord it little to
no weight.
2:12-cv-10285-BAF-MJH Doc # 117 Filed 02/05/14 Pg 3 of 13 Pg ID 2455
4
II. THE LEGAL STANDARD GOVERNING EXPERT TESTIMONY
Federal Rule of Evidence 702 provides that expert testimony relating to
“scientific, technical, or other specialized knowledge” is admissible only if it “will
help the trier of fact to understand the evidence or to determine a fact in issue.” Fed.
R. Evid. 702(a); see Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000) (citing
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 n.10 (1993))
(explaining that an expert must “testify to scientific knowledge that will assist the
trier of fact in understanding and disposing of issues relevant to the case”). A witness
qualified as an expert may only offer testimony if “the testimony is based upon
sufficient facts or data; the testimony is the product of reliable principles and
methods; and the expert has reliably applied the principles and methods to the facts
of the case.” Fed. R. Evid. 702(b)-(d). Additionally, expert testimony is subject to
general evidentiary rules, such as Federal Rules of Evidence 401 and 403. See United
States v. LeBlanc, 45 Fed. App’x 393, 400 (6th Cir. 2002) (“Obviously, expert
testimony is subject to the same relevancy constraints as all other kinds of
evidence.”); Moisenko v. Volkswagenwerk Aktiengesellschaft, 198 F.3d 246 (6th Cir.
1999) (applying Fed. R. Evid. 403 balancing test to expert testimony).
A. Expert Witness Testimony Must Be Based on Scientific,
Technical, or “Other Specialized” Knowledge and Must Concern a
Matter Beyond a Layperson’s Common Knowledge
2:12-cv-10285-BAF-MJH Doc # 117 Filed 02/05/14 Pg 4 of 13 Pg ID 2456
5
An expert’s testimony must be based on “scientific, technical, or other
specialized knowledge [that] will help the trier of fact.” Fed. R. Evid. 702(a). 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. See, e.g., Berry v. City
of Detroit, 25 F.3d 1342, 1349-50 (6th Cir. 1994) (“If everyone knows [the
knowledge in question], then we do not need an expert because the testimony will
not ‘assist the trier of fact to understand the evidence or to determine a fact in issue’
. . . .” (quoting Fed. R. Evid. 702)).
B. Expert Witness Testimony Must be Relevant and Reliable
Under Federal Rule of Evidence 702, the trial judge is charged with the
task of ensuring an expert’s testimony is relevant to the task at hand and rests on a
reliable foundation. Daubert, 509 U.S. at 591-92; Zuzula v. ABB Power T & D Co.,
Inc., 267 F. Supp. 2d 703, 711 (E.D. Mich. 2003) (“[T]estimony is unhelpful when
it is unreliable or irrelevant.”). Accordingly, Defendants bear the burden of
establishing by a preponderance of the evidence that Regnerus’s testimony, opinion,
and reports are relevant and reliable. See Fed. R. Evid. 104(a); Daubert, 509 U.S. at
589-93; Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001)
(“It is the proponent of the testimony that must establish its admissibility by a
preponderance of proof.”).
1. Relevance
2:12-cv-10285-BAF-MJH Doc # 117 Filed 02/05/14 Pg 5 of 13 Pg ID 2457
6
To be relevant, the proffered expert testimony 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.” Daubert, 509 U.S. at 591 (citing Fed. R. Evid. 702).
A “fit” or valid connection must exist between the expert’s reasoning or
methodology and the facts at issue before the Court. Id. at 591-93. The necessary
connection between the expert’s methodology and ultimate conclusion may not be
established on speculation alone. General Electric v. Joiner, 522 U.S. 136, 146
(1997) (“[N]othing in either Daubert or the Federal Rules of Evidence requires a
district court to admit opinion evidence that is connected to existing data only be the
ipse dixit of the expert.”).
In the context of this case, the State Defendants must demonstrate a rational
basis for the laws being challenged. Based upon this Court’s order, State Defendants
have relied on four purported justifications: “(1) providing children with
‘biologically connected role models of both genders that are necessary to foster
healthy psychological development; (2) forestalling the unintended consequences
that would result from the redefinition of marriage; (3) tradition or morality; and (4)
promoting the transition of ‘naturally procreative relationships into stable unions.’”
R. 89, Opinion Denying Cross Motions for Summary Judgment, p 6. To be
admissible expert testimony, Girgis’s testimony, opinion, and reports must evince
2:12-cv-10285-BAF-MJH Doc # 117 Filed 02/05/14 Pg 6 of 13 Pg ID 2458
7
“a valid scientific connection” to that particular inquiry “as a precondition for
admissibility.” Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir. 2000).
2. Reliability
In addition to being relevant, an expert’s testimony must also be reliable.
Reliability of an expert’s conclusions is based on the expert’s knowledge or
experience in his or her discipline, rather than on subjective belief or unsupported
speculation. See, e.g., Kuhmo Tire, 526 U.S. at 148; Daubert, 509 U.S. at 589-90.
The Court must ensure that the expert employs “the same level of intellectual rigor
that characterizes the practice of an expert in the relevant field.” Newell Rubbermaid,
Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012) (internal quotation marks
omitted). In cases of scientific testimony, this means that an expert’s testimony not
only must reflect scientific knowledge, but also must be “derived by the scientific
method” and amount to “good science.” See Daubert v. Merrell Dow
Pharmaceuticals, 43 F.3d 1311, 1315 (9th Cir. 1995) (“Daubert II”). In essence, the
Court must “be on guard against all forms of junk science that may creep into the
courtroom.” Greenwell v. Boatwright, 184 F.3d 492, 501 (6th Cir. 1999).
Daubert suggested four non-exclusive criteria “against which to measure the
validity of the underlying principles and methods which undergird an expert's
opinion: [1] whether the technique or theory is capable of being tested; [2] whether
it has been published and reviewed by peers in the relevant technical community;
2:12-cv-10285-BAF-MJH Doc # 117 Filed 02/05/14 Pg 7 of 13 Pg ID 2459
8
[3] the potential or known rate of error yielded by the methodology; and [4] whether
the principle or theory has been generally accepted or shunned by the community of
experts in the field.” Zuzula, 267 F. Supp. 2d at 712. The Sixth Circuit has identified
several “red flags” that “caution against certifying an expert,” including (1) reliance
on anecdotal evidence, (2) improper extrapolation, (3) failure to consider other
possible causes, (4) lack of testing, and (5) subjectivity. Newell Rubbermaid, Inc.,
676 F.3d at 527.
C. The Probative Value of Expert Witness Testimony Must
Outweigh its Prejudicial Effect
Finally, as with all evidence, the Court may exclude expert testimony if its
probative value is substantially outweighed by unfair prejudice, confusion of the
issues, waste of time, undue delay, or needless presentation of cumulative evidence.
See Fed. R. Evid. 403; Moisenko, 198 F.3d 246 (6th Cir. 1999) (applying Fed. R.
Evid. 403 balancing test to expert testimony); Flanagan v. Altria Grp., Inc., 423 F.
Supp. 2d 697, 699 (E.D. Mich. 2005) (“Even if the Court finds the evidence reliable
and relevant, it must also determine whether its probative value is outweighed by its
prejudicial effect.”).
III.
MR. GIRGIS IS NOT QUALIFIED TO OFFER EXPERT TESTIMONY,
HIS OPINIONS ARE NOT BASED UPON ANY RECOGNIZED
METHODOLOGY, AND HIS OPINIONS ARE NOT RELEVANT TO THE
ISSUES BEING DECIDED BY THE COURT
2:12-cv-10285-BAF-MJH Doc # 117 Filed 02/05/14 Pg 8 of 13 Pg ID 2460
9
Mr. Girgis seeks to offer testimony on his own personal philosophical theory
of marriage. His theory rests on a conjugal view of marriage, namely that marriage
is a bodily, emotional, and spiritual bond that is ordered to procreation and family
life. His personal view as to marriage does not even purport to express what
marriage is as a matter of law.
Girgis is clearly not qualified to testify as an expert witness under FRE 702
or Daubert. He has never been qualified as an expert witness in a case (Girgis
Dep, p 6). He is currently a law student at Yale University and graduate student in
the philosophy department at Princeton University (Id.). He is neither a member of
the bar of any state nor eligible to be a member of the bar of any state (Id. 7). As he
candidly admitted during his deposition, as a student, someone else still grades his
papers (Id.). While he has written about his personal views on marriage, none of
his writings have been peer reviewed (Id. 7-8). He is not an historian, a sociologist
or a psychologist (Id. 9), nor is he an expert on Michigan law regarding marriage
(Id. 36). Other than reading the Amended Complaint in this case, he has not
reviewed Michigan law regarding marriage, nor has he taken a course in family
law (Id. 36-37).
With respect to the actual subject matter of Mr. Girgis’ proposed testimony,
it is admittedly his personal, philosophical opinion as to the nature of marriage. (Id.
22, 37). See also Amicus Brief of Robert P. George, Sherif Girgis and Ryan T.
2:12-cv-10285-BAF-MJH Doc # 117 Filed 02/05/14 Pg 9 of 13 Pg ID 2461
10
Anderson in Support of Hollingsworth et al., Hollingsworth v Perry, S Ct Nos. 12-
144 and 12-307, pp 1-2 (referring to his and co-amici’s views as “their philosophic
defense of marriage as a conjugal union”). His opinions and conclusions are not
the product of reliable principles or methodology, nor are they based on "scientific,
technical, or other specialized knowledge" that would assist this court as the trier
of fact; they are simply his opinions.
On the contrary, his conclusions about the supremacy of the conjugal view of
marriage is a subjective theory that “cannot be assessed for reliability.” FRE 702,
Advisory Committee’s Note. In order to be reliable, an expert’s conclusions must
be based on the expert’s knowledge or experience in his or her discipline, rather than
on substantive belief or unsupported speculation. See, e.g., Kuhmo Tire, 526 U.S. at
148; Daubert, 509 U.S. at 589-590
As noted above, none of his writings have been peer reviewed. Both the
Supreme Court and the Sixth Circuit have held that the requirement of peer review
serves an important function, and assists the Court with its all-important
“gatekeeping” role, keeping “sham”, novel, or untested theories from “creep[ing]
into the courtroom.” Daubert, 509 U.S. at 593. Greenwell, 184 F.3d at 501.
Moreover, the fact that Girgis’s opinions seem to fall within the field of
philosophy do not save it from exacting Daubert scrutiny.
While the relevant factors for determining reliability will vary from
expertise to expertise, the amendment [to FRE 702 embracing the
2:12-cv-10285-BAF-MJH Doc # 117 Filed 02/05/14 Pg 10 of 13 Pg ID 2462
11
holding of Daubert] rejects the premise that an expert’s testimony
should be treated more permissively simply because it is outside the
realm of science. An opinion from an expert who is not a scientist
should receive the same degree of scrutiny for reliability as an expert
who purports to be a scientist.
Advisory Committee Notes regarding the 2000 Amendments to FRE 702 (citations
omitted).
Girgis’s testimony also raises a red flag because Girgis himself has
acknowledged that opinions like his, opposing same sex marriage, were honed
precisely for presentation to the Supreme Court. See Sherif Girgis, et al., The
Supreme Court, You and Me, and the Future of Marriage, Witherspoon Institute:
Public Discourse (June 27, 2013), http://www.thepublicdiscourse.com/2013/06/
10455. In this article, Girgis and his co-authors conclude by encouraging the
continuing debate over the definition of marriage to proceed so that the Supreme
Court will delay defining marriage in the same sex marriage cases pending further
public debate. See Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434 -
435 (6th Cir. 2007) (expert theory raises “red flag” where it is generated
intentionally for litigation).
To the extent that Girgis’s theories are themselves based upon other “fringe”
social science “researchers” (also slated for presentation by the State Defendants
and also subject to pending FRE 702/Daubert challenges) -- that a child needs to
be raised by his or her own biological mother and father in an intact marriage in
2:12-cv-10285-BAF-MJH Doc # 117 Filed 02/05/14 Pg 11 of 13 Pg ID 2463
12
order to be physically and psychologically healthy – that claim will be
resoundingly refuted by Plaintiffs’ legitimate experts, all of whom are nationally
and/or world renowned experts in the fields of psychology, sociology and
demography as to the precise issues presented in this case.
Further, Girgis’s personal opinions about marriage are largely irrelevant to
the issues presented in this litigation. To be admissible, an expert opinion must be
“sufficiently tied to the facts of the case that it will aid the [trier of fact] in
resolving a factual dispute.” Daubert, 509 U.S. at 591; see U.S. v. LeBlanc, 45 Fed.
App’x 393, 400 (6th Cir. 2002) (“Obviously, expert testimony is subject to the
same relevancy constraints as all other kinds of evidence.”). In the context of this
case, the State Defendants must demonstrate a rational basis for the laws being
challenged. Based upon this Court’s order, State Defendants have relied on four
purported justifications: “(1) providing children with ‘biologically connected role
models of both genders that are necessary to foster healthy psychological
development; (2) forestalling the unintended consequences that would result from
the redefinition of marriage; (3) tradition or morality; and (4) promoting the
transition of ‘naturally procreative relationships into stable unions.’” R. 89,
Opinion Denying Cross Motions for Summary Judgment. Girgis’s opinion,
because it is essentially a “lay” opinion, is not genuinely probative of any of the
above four justifications.
2:12-cv-10285-BAF-MJH Doc # 117 Filed 02/05/14 Pg 12 of 13 Pg ID 2464
13
Finally, Girgis’s testimony should be excluded under FRE 403. Because
this is essentially a non-peer reviewed, unqualified lay opinion, Girgis’s testimony
and conclusions would provide no benefit to the Court, and indeed, are likely to
waste time and confuse the issues in the case.
CONCLUSION
For the reasons set forth above, Plaintiffs request that the Court rule that Mr.
Girgis’s testimony is inadmissible at trial or accord such testimony little or no
weight.
Respectfully submitted,
s/Carole M. Stanyar s/ Dana Nessel
CAROLE M. STANYAR P34830 DANA M. NESSEL P51346
221 N. Main Street, Suite 300 645 Griswold Street, Suite 4300
Ann Arbor, MI 48103 Detroit, MI 48226
(313) 819-3953 (313) 556-2300
[email protected] [email protected]
Dated: February 5, 2014 Attorneys for Plaintiffs
Of counsel:
s/Robert A. Sedler s/ Kenneth M. Mogill
ROBERT A. SEDLER P31003 Kenneth M. Mogill P17865
Wayne State University Law School MOGILL, POSNER & COHEN
471 W. Palmer Street 27 E Flint Street, 2nd Floor
Detroit, MI 48202 Lake Orion, MI 48362
(313) 577-3968 (248) 814-9470
[email protected] [email protected]
2:12-cv-10285-BAF-MJH Doc # 117 Filed 02/05/14 Pg 13 of 13 Pg ID 2465
2:12-cv-10285-BAF-MJH Doc # 117-1 Filed 02/05/14 Pg 1 of 6 Pg ID 2466
2:12-cv-10285-BAF-MJH Doc # 117-1 Filed 02/05/14 Pg 2 of 6 Pg ID 2467
2:12-cv-10285-BAF-MJH Doc # 117-1 Filed 02/05/14 Pg 3 of 6 Pg ID 2468
2:12-cv-10285-BAF-MJH Doc # 117-1 Filed 02/05/14 Pg 4 of 6 Pg ID 2469
2:12-cv-10285-BAF-MJH Doc # 117-1 Filed 02/05/14 Pg 5 of 6 Pg ID 2470
2:12-cv-10285-BAF-MJH Doc # 117-1 Filed 02/05/14 Pg 6 of 6 Pg ID 2471