Log Cabin Republicans v. United States of America et al

Filing 178

NOTICE OF MOTION AND MOTION IN LIMINE to Exclude expert testimony filed by defendants Donald H Rumsfeld, United States of America. Motion set for hearing on 6/28/2010 at 02:30 PM before Judge Virginia A. Phillips. (Attachments: #1 Appendix Index to Appendix, #2 Appendix, #3 Appendix, #4 Appendix, #5 Appendix, #6 Appendix, #7 Appendix, #8 Appendix, #9 Appendix, #10 Appendix, #11 Appendix, #12 Appendix, #13 Appendix, #14 Appendix, #15 Appendix, #16 Proposed Order)(Gardner, Joshua)

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Log Cabin Republicans v. United States of America et al Doc. 178 Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 1 of 35 1 TONY WEST Assistant Attorney General 2 ANDRÉ BIROTTE, Jr. United States Attorney 3 JOSEPH H. HUNT VINCENT M. GARVEY 4 PAUL G. FREEBORNE W. SCOTT SIMPSON 5 JOSHUA E. GARDNER RYAN B. PARKER 6 U.S. Department of Justice Civil Division 7 Federal Programs Branch P.O. Box 883 8 Washington, D.C. 20044 Telephone: (202) 353-0543 9 Facsimile: (202) 616-8460 E-mail: paul.freeborne@ usdoj.gov 10 Attorneys for Defendants United States 11 of America and Secretary of Defense 12 13 15 16 v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV04-8425 VAP (Ex) DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES DATE: June 28, 2010 TIME: 2:30 p.m. BEFORE: Judge Phillips 14 LOG CABIN REPUBLICANS, 17 UNITED STATES OF AMERICA AND ROBERT M. GATES, Secretary of 18 Defense, 19 20 21 22 23 24 25 26 27 28 DEFENDANTS' NOTICE OF MOTION AND MOTION IN LIMINE Defendants. Filed herewith: 1. Notice of Motion and Motion In Limine 2. Memorandum of Points and Authorities in support of Motion In Limine 3. Appendix 4. Proposed Order UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 Dockets.Justia.com Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 2 of 35 1 2 NOTICE OF MOTION AND MOTION IN LIMINE NOTICE IS HEREBY GIVEN that on June 28, 2010, at 2:30 p.m. in the 3 Courtroom of the Honorable Virginia A. Phillips, United States District Judge, 4 Defendants United States and Secretary of Defense (collectively, "Defendants"), 5 by and through counsel, will move in limine to exclude the testimony of plaintiff 6 Log Cabin Republican's ("LCR") seven expert witnesses. The expert testimony 7 LCR seeks to introduce is inadmissible under Federal Rules of Evidence 702, 402 8 and 403, and the "revised" report of of one of LCR's expert, Dr. Aaron Belkin, 9 which includes a new opinion, is untimely under Rule 26 and, therefore, should be 10 excluded under Rule 37. The motion will be based upon these moving papers, the 11 attached Memorandum of Points and Authorities in support of the Motion, and 12 upon such other and further arguments, documents, and grounds as may be 13 advanced in the future. This Motion is made following conference with counsel pursuant to L.R. 714 15 3, which took place on June 8, 2010. 16 Dated: June 18 2010 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS' NOTICE OF MOTION AND MOTION IN LIMINE Respectfully submitted, TONY WEST Assistant Attorney General ANDRÉ BIROTTE, JR United States Attorney JOSEPH H. HUNT Director VINCENT M. GARVEY Deputy Branch Director /s/ Joshua E. Gardner PAUL G. FREEBORNE W. SCOTT SIMPSON JOSHUA E. GARDNER RYAN B. PARKER Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Room 6108 UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 -1- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 3 of 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS' NOTICE OF MOTION AND MOTION IN LIMINE Washington, D.C. 20044 Telephone: (202) 353-0543 Facsimile: (202) 616-8202 paul.freeborne@usdoj.gov Attorneys for Defendants United States of America and Secretary of Defense -2- UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 4 of 35 1 2 3 4 5 6 7 T A B L E OF CONTENTS p age I N T R O D U C T I O N . . .. ... .. . .. . .. .. . .. . . . . . . . . . . . . . . . .. . . .. .. . . .. . . . . .. . . . . .. . . .. . . . . .. . . . . .. . . . . . . . . .. . . . . .. . . . . . . . . . 1 B A C K G R O U N D . . . . .. ... .. . .. . .. .. . .. . . . . . . . . . . . . . . . .. . . .. .. . . .. . . . . .. . . . . .. . . .. . . . . .. . . . . .. . . . . . . . . .. . . . . .. . . . . . . . . . 1 A R G U M E N T . . . . . . . . . . .. ... .. . .. . .. .. . .. . . . . . . . . . . . . . . . .. . . .. .. . . .. . . . . .. . . . . .. . . .. . . . . .. . . . . .. . . . . . . . . .. . . . . .. . . . . . . . . . 6 I. L C R 'S EXPERTS' OPINIONS ARE INADMISSIBLE UNDER FRE 702 AND 402. ............................................................... 6 A. L eg al Standard. .......................................................................... 6 L C R 's Experts' Opinions Are Legally Irrelevant and Unhelpful To The Court Under FRE 702 and 402. ............................................................................................ 7 1. E v id en ce, Including Expert Testimony, Is Inappropriate In Resolving LCR's Facial Challenge....... 8 O p in io n s Regarding The Motivations Behind Those That Enacted DADT Is Inadmissible. ................. 1 0 O p in io n Testimony Regarding The Issue Of Unit Cohesion Is Inadmissible Under FRE 702 and 402 . ................................................................. 1 2 O p in io n s Regarding The Experience Of Foreign M ilitaries Is Inadmissible Under FRE 702 and 402 . .............................................................................. 1 4 D r. Korb's Opinion Is An Inadmissible Legal Conclusion. .................................................................... 1 6 O p in io n s Regarding The Purported Lack of Empirical Evidence In Support of DADT Is Inadmissible................................................................... 1 8 8 B. 9 10 11 12 13 2. 3. 14 15 4. 16 17 5. 18 19 20 21 22 23 24 25 26 27 28 6. II. LCR's PROPOSED TESTIMONY CONCERNING ALLEGED DISPROPORTIONATE IMPACT OF DADT ON LESBIANS IS INADMISSIBLE. ............................................... 1 9 O P IN IO N S REGARDING THE "CONTINUING" RATIONALITY OF DADT ARE INADMISSIBLE UNDER FRE 702 AND 402. ............................................................. 2 0 M A N Y OF LCR'S EXPERTS' OPINIONS ARE UNRELIABLE................................................................................... 2 1 III. IV . -i- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 5 of 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. ALTERNATIVELY, LCR's EXPERTS' OPINIONS SHOULD BE LIMITED BECAUSE THEY ARE CUMULATIVE UNDER FRE 403. .................................................. 2 4 C O N C L U S IO N ..................................................................................................... 2 5 -ii- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 6 of 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Aetna Casualty & Surety Co. v. Guynes, 7 1 3 F.2d 1187 (5th Cir. 1983). ..................................................................... 2 4 A g u ila r v. International Longshoremen's Union Local #10, 9 6 6 F.2d 443 (9th Cir. 1992). ....................................................................... 1 7 B a ker v. Delta Airlines, Inc., 6 F.3d 632 (9th Cir. 1993). ............................................................................. 7 B o a rd of Education v. Mergens, 4 9 6 U.S. 226 (1990)...................................................................................... 1 0 B eech Aircraft Corp. v. U.S., 5 1 F.3d 834 (9th Cir. 1995). ........................................................................... 7 C o o k v. Gates, 5 2 8 F.3d 42, (1st Cir. 2008). ........................................................................... 9 D a u b ert v. Merrell Dow Pharms., 5 0 9 U.S. 579 (1993)........................................................................................ 6 D a u b ert v. Merrell Dow Pharms., Inc., 4 3 F.3d 1311 (9th Cir. 1995). ................................................................... 6 , 22 F ed era l Commc'ns Commission v. Beach Comm'ns, 5 0 8 U.S. 307 (1993).................................................................................. 8 , 18 G a b le v. Patton, 1 4 2 F.3d 940 (6th Cir. 1998). ....................................................................... 1 0 G en . Offshore Corp. V. Farrelly, 7 4 3 F. Supp. 1177 (D.V.I. 1990). ................................................................. 1 0 G o ld m a n v. Weinberger, 4 7 5 U.S. 503 (1986)........................................................................... 9 , 12, 18 Gordon v. Davenport, N o . 08-3341, 2009 WL 322891 (N.D. Cal. 2009). ................................. 1 9 , 20 H eller v. Doe, 5 0 9 U.S. 312 (1993)...................................................................................... 1 2 H em m in g s v. Tidyman's Inc., 2 8 5 F.3d 1174 (9th Cir. 2002). ....................................................................... 7 H o w a rd v. U.S. Department of Defense, 3 5 4 F.3d 1358 (Fed. Cir. 2004). ................................................................... 2 1 -iii- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 7 of 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN S v. Chadha, 4 6 2 U.S. 919 (1983)...................................................................................... 1 2 In re Air Crash Disaster, 7 2 0 F. Supp. 1493 (D. Colo. 1989)............................................................... 1 4 In re Initial Public Offering Sec. Litigation, 1 7 4 F. Supp. 2d 61 (S.D.N.Y. 2001). ........................................................... 1 7 Ja m es River Insurance Co. v. Rapid Funding, LLC, N o . 07-01146, 2009 WL 481688 (D. Colo. Feb. 24, 2009).......................... 2 2 Ja rro w v. Cupit, N o . 99-3539, 2000 WL 1537989 (E.D. La. Oct. 17, 2000). ......................... 1 7 Jo h n so n v. Bush, N o . 00-3542, 2002 WL 34355953 (S.D. Fla. Apr. 19, 2002). ...................... 1 7 K irk v. Raymark Indus., Inc, 6 1 F.3d 147 (3d Cir. 1995). .......................................................................... 1 4 K u m h o Tire Co. v. Carmichael, 5 2 6 U.S. 137 (1999)........................................................................................ 6 L a s Vegas v. Foley, 7 4 7 F.2d 1294 (9th Cir. 1984). ..................................................................... 1 0 L ira v. Cate, No. 00-0905, 2010 WL 727979 (N.D. Cal. Feb. 26, 2010). ........................ 1 7 M o n ta lvo -H u erta s v. Rivera-Cruz, 8 8 5 F.2d 971 (1st Cir. 1989). ........................................................................ 2 1 N a tio n w id e Transport Finance v. Cass Information System, 5 2 3 F.3d 1051 (9th Cir. 2008). ..................................................................... 1 7 P a d d o ck v. Christensen, Inc., 7 4 5 F.2d 1254 (9th Cir. 1984). ....................................................................... 7 P h illip s v. Perry, 1 0 6 F.3d 1420 (9th Cir. 1997). ............................................................... 1 1 , 19 P la n n ed Parenthood of Columbia/Willamette, Inc. v. Am. Coal. Of Life Activists, 2 9 0 F.3d 1058 (9th Cir. 2002). ..................................................................... 1 4 R eid v. Lockheed Martin Aeronautics Co., 2 0 5 F.R.D. 655 (N.D. Ga. 2001)..................................................................... 4 R ice v. Fox Broad. Co., 3 3 0 F.3d 1170 (9th Cir. 2003). ............................................................. p a ssim -iv- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 8 of 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R ivera v. Patino, 5 2 4 F. Supp. 136 (N.D. Cal. 1981). .............................................................. 1 2 S .E .C . v. Capital Consultants, LLC, 3 9 7 F.3d 733 (9th Cir. 2005). ....................................................................... 1 7 S m a rt v. Ashcroft, 4 0 1 F.3d 119 (2d Cir. 2005). ........................................................................ 2 1 U n ited States v. Alisal Water Corp., 4 3 1 F.3d 643 (9th Cir. 2005). ....................................................................... 2 4 U n ited States v. Baca, 6 1 0 F. Supp. 2d 1203 (E.D. Cal. 2009). ....................................................... 1 7 U n ited States v. Hankey, 2 0 3 F.3d 1160 (9th Cir. 2000). ..................................................................... 2 2 U n ited States v. Hermanek, 2 8 9 F.3d 1076 (9th Cir. 2002). ................................................................. 6 , 22 U n ited States v. Jackson, 8 4 F.3d 1154 (9th Cir. 1996). ................................................................. 2 0 , 21 U n ited States v. Leo, 9 4 1 F.2d 181 (3d Cir. 1991). ........................................................................ 1 7 U n ited States v. Lujan, 5 0 4 F.3d 1003 (9th Cir. 2007). ....................................................................... 9 U n ited States v. Manning, 5 0 9 F.2d 1230 (9th Cir. 1974). ..................................................................... 1 6 U n ited States v. O'Brien, 3 9 1 U.S. 367 (1968)...................................................................................... 1 0 U n ited States v. Rincon, 2 8 F.3d 921 (9th Cir. 1994). ......................................................................... 2 2 U n ited States v. Vallejo, 2 3 7 F.3d 1008 (9th Cir. 2001). ....................................................................... 7 U n ited Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 5 1 7 U.S. 544 (1996)...................................................................................... 1 9 V a n Slyke v. Capital One Bank, 5 0 3 F. Supp. 2d 1353 (N.D. Cal. 2007). ....................................................... 1 4 V a n ce v. Bradley, 4 4 0 U.S. 93 (1979).................................................................................... 9 , 18 -v- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 9 of 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V illa g e of Arlington Heights v. Metropolitan Housing Development Corp., 4 2 9 U.S. 252 (1977)...................................................................................... 1 1 W estern & S. Life Insurance Co. v. State Board of Equalization, 4 5 1 U.S. 648 (1981).................................................................................... 8 , 9 Z en ith Electrics Corp. v. WH-TV Broad. Corp., 3 9 5 F.3d 416 (7th Cir. 2005). ........................................................... 1 1 , 22, 24 STATUTES 10 U.S.C. § 654 ................................................................................................. 1 , 13 -vi- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 10 of 35 1 2 INTRODUCTION Plaintiff Log Cabin Republicans ("LCR") has brought a facial due process 3 challenge to 10 U.S.C. § 654 and the regulations promulgated thereunder ("Don't 4 Ask, Don't Tell," or "DADT"). In support of its claim that DADT is facially 5 unconstitutional, LCR intends to introduce "extensive expert testimony explaining 6 that there was no rational basis for Congress's [sic] original determination at the time 7 of the enactment of DADT." (Dkt. No. 140, P.15:12-17). In addition, in apparent 8 reliance upon its legally unsupported "continuing rationality" theory, LCR intends to 9 present the opinions of seven purported experts who will testify that DADT 10 "continues to have no rational basis today." (id. at 17:11-17). However, none of this 11 testimony is admissible under the Federal Rules of Evidence ("FRE"). 12 LCR's experts' opinions ­ which, in general, seek to question the wisdom of 13 Congress in enacting DADT and challenge the continuing wisdom of DADT ­ are 14 legally irrelevant to the legal issue of whether DADT is facially constitutional. In 15 certain circumstances, moreover, the experts employ no discernable methodology or 16 identify any facts or data in reaching their conclusions. In addition, several of LCR's 17 experts have conceded that they lack the requisite expertise to offer certain of their 18 opinions. 19 Accordingly, LCR's experts' opinions should be excluded under FRE 702 and 20 402, because they are neither relevant nor reliable. Furthermore, if this testimony 21 nonetheless were found to be admissible, the Court should limit LCR to one witness 22 per topic pursuant to FRE 403 because LCR seeks to introduce needlessly cumulative 23 testimony from multiple experts on the same topics. 24 25 27 28 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 BACKGROUND In support of its facial constitutional challenge to DADT, LCR seeks to present 26 the opinions of seven expert witnesses to testify as to the wisdom of Congress' Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 11 of 35 1 enactment of DADT and the continuing rationality of the DADT policy. Specifically, 2 LCR seeks to introduce opinions from the following individuals: 3 1. Lawrence Korb: The primary opinion Dr. Korb offers is that DADT is 4 "unconstitutional." Ex. 9 ( Tr. 23:6-20).1 Without any identifiable methodology, and 5 relying largely upon the opinions of several of LCR's other expert witnesses in this 6 case, Dr. Korb opines that DADT is "irrational" because: (a) he interprets certain 7 studies as concluding that sexual orientation is not relevant to military service; (b) he 8 believes that DADT has exacted costs in terms of training and the divergence of 9 money from the purchase of equipment; (c) he concludes that there is a "growing 10 acceptance within the military and American civilian society" regarding 11 homosexuals; and (d) allowing homosexuals to serve improves military readiness. 12 Ex. 1, at pp. 5-9. Dr. Korb also purports to refute what he has identified as "the most 13 common arguments in favor of DADT," including that the repeal of DADT would 14 damage unit cohesion; that "militaries similar to the United States[] do not allow 15 openly gay men and lesbians to serve;" that "existing service members will have 16 moral objections;" and that there are problems associated with the repeal of DADT 17 while the United States is currently engaged in two wars. Id. at pp. 9-11. 18 2. Nathaniel Frank: Dr. Frank, a Senior Research Fellow at the Palm 19 Center, an organization advocating for the repeal of DADT, is a social scientist who 20 has authored a book entitled "Unfriendly Fire," in which he argues for the repeal of 21 DADT. Relying largely on anecdotes, hearsay, and others' non-peer reviewed 22 research, Dr. Frank offers the following opinions: (1) DADT was based upon moral 23 animus; (2) "three influential leaders [Colin Powell, Senator Sam Nunn, and 24 Professor Charlie Moskos] who opposed homosexuals in the military relied on their 25 credentials to argue against lifting the ban for what were actually personal, not 26 military reasons;"(3) there are similarities between those who opposed racial 27 1 28 "Ex. __" refers to the exhibits submitted in support of this motion. UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES -2- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 12 of 35 1 integration of the military and those who oppose open homosexuals serving in the 2 military that "suggests that resistance is rooted in prejudice and fear of the 3 unfamiliar;" (4) there is an "absence of social scientific evidence" supporting DADT; 4 (5) research associated with foreign militaries and certain domestic institutions that 5 allow open homosexuals to serve are relevant to the repeal of DADT; (6) DADT 6 imposes certain financial and national security costs, and impacts the morale and 7 readiness of homosexual troops; (7) homosexuals already serve openly in the military; 8 and (8) both military and public opinion towards homosexuality has "softened" since 9 the enactment of DADT. Ex. 2, pp. 2-21. 10 3. Aaron Belkin: Dr. Belkin, the Director of the Palm Center, opines, 11 without any discernable methodology, that the potential repeal of DADT will not 12 compromise military readiness. Ex. 3. Specifically, Dr. Belkin bases his conclusion 13 upon three subsidiary conclusions. First, Dr. Belkin opines, without any identified 14 support, that "[t]he U.S. military suspended the discharge proceedings of a number 15 of gay troops during [the] first Gulf War, and sent those troops to the Middle East to 16 fight in the war." Id. at pp. 1-2. Second, like Dr. Frank, Dr. Belkin opines that "data 17 from analogous institutions," such as foreign militaries, U.S. police and fire 18 departments, and certain federal agencies that allow homosexuals to serve openly, 19 supports the conclusion that the military could repeal DADT without compromising 20 military readiness. Id. at p. 2. Finally, like Dr. Frank, Dr. Belkin claims that 21 "empirical data" calls into question the unit cohesion rationale for DADT, and that 22 unit cohesion would be promoted by repealing the statute. Id. at pp. 3-4. Dr. Belkin 23 acknowledged in his deposition that he had not addressed the issue of privacy in his 24 expert report. Ex. 11 (Tr. 123:8-22).2 25 26 27 28 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES On March 24, 2010, after Dr. Belkin's deposition, LCR submitted what it referred to as a "revised" report for Dr. Belkin. Ex. 4. This revised report includes a new page that discusses 2 (continued...) UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 -3- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 13 of 35 1 4. Robert MacCoun: Dr. MacCoun, a law professor and professor of public 2 policy at the University of California at Berkeley, offers seven opinions related to the 3 issue of unit cohesion, the same issue addressed by Drs. Korb, Frank, and Belkin: (1) 4 there is no "systemic evidence (direct or indirect) for the claim that openly gay or 5 lesbian personnel would impair military unit cohesion or unit effectiveness;" (2) there 6 is "no single phenomenon called `unit cohesion' and it is important to distinguish 7 `social cohesion' from `task cohesion';" (3) the "evidence that cohesion promotes 8 team performance is mixed;" (4) "estimates of the cohesion-performance association 9 are partly attributable to the effect of performance on cohesion rather than the 10 reverse;" (5) "recent meta-analyses on the effects of team heterogeneity suggest little 11 or no effect on either cohesion or on performance;" (6) "many factors in military 12 settings will promote cohesion, regardless of the personal attributes of team members; 13 and (7) "[s]oldiers' abstract attitudes towards homosexuality, and their speculation 14 about hypothetical situations, are likely to be poor predictors of their actual responses 15 when serving with a gay or lesbian colleague." Ex. 5. Dr. MacCoun acknowledged 16 in his deposition that he is not offering any opinions in his report regarding the 17 18 19 2 (...continued) 20 the issue of privacy in the context of the potential repeal of DADT. Id. at p. 5. Pursuant to the 21 January 19, 2010. Under FRCP 26, LCR has a duty to have Dr. Belkin supplement his report if new information comes to light that alters his opinions. Fed. R. Civ. P. 26(e)(2). Rule 26 does Court's Scheduling Order, Dkt. No. 92, the deadline for providing expert reports in this case was 22 not, however, give LCR the right to simply provide additional opinions from Dr. Belkin after the 23 deadline set by the Court. See Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655, 662 24 produce information in a belated fashion.") (emphasis in original). Dr. Belkin acknowledged that 25 26 27 28 he did not address privacy in his expert report, and that he was asked the night before his deposition to offer an entirely new opinion on privacy. Ex. 11 (Tr. 123:8-22). And, as discussed below, because this "revision," which includes an entirely new opinion regarding privacy, lacks any identification of the facts or data relied upon or the method by which he developed this new opinion, this opinion is inadmissible under FRE 702. Accordingly, Dr. Belkin's new opinion regarding privacy should be stricken as untimely and otherwise inadmissible. UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 (N.D. Ga. 2001) ("In short, Rule 26 imposes a duty on Plaintiffs; it grants them no right to DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES -4- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 14 of 35 1 privacy rationale identified by Congress in the enactment of DADT. Ex. 12 (Tr. 2 130:11-24). 3 5. Elizabeth Hillman: Dr. Hillman, a law professor at the University of 4 California, Hastings College of Law, has prepared a two-page expert report that 5 discloses no identifiable methodology and comprises five primary opinions: (1) 6 similar to the opinions of Drs. Korb and Frank, DADT was drafted and adopted 7 "because of hostility towards homosexuals and fear of homosexuality;" (2) DADT 8 "has been disproportionately used to limit and punish servicewomen as compared to 9 servicemen;" (3) DADT "preserves a false image of servicemembers as exclusively 10 heterosexual, despite significant and extensive historical and contemporary evidence 11 to the contrary;" (4) "[I]f the policy was irrational when drafted and adopted in 1992, 12 to retain it in 2009 is detrimental to military efficiency"; and (5) in her "personal 13 experience . . . the reaction of servicemembers to President Clinton's proposal to open 14 military service to lesbian and gay men were based on fear, hostility, and ignorance, 15 not reason." Ex. 6, pp. 1-2. 16 6. Melissa Sheridan Embser-Herbert: Dr. Emsber-Herbert, a sociology 17 professor at Hamline University (and also an attorney), offers the following five 18 opinions, without any discernable methodology, related solely to the application of 19 DADT to females in the military, an opinion similar to the one offered by Dr. 20 Hillman: (1) under DADT, women are discharged "at a rate disproportionate to their 21 representation among military personnel;" (2) the rationales used in 1993 to support 22 DADT do not apply to lesbians; (3) DADT "divides" women, a factor having a 23 negative personal and professional impact, "including the potential to lead to physical 24 and/or emotional trauma;" (4) "DADT creates a situation where women do not want 25 to be seen as `too' competent;" and (5) "DADT creates an environment that not only 26 tolerates, but encourages, sexual harassment." Ex. 7, pp. 2-10. 27 28 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 -5- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 15 of 35 1 7. Alan Okros: Dr. Okros, a professor at the Canadian Forces College, 2 opines that Canada was able to successfully change its policy to allow gay men and 3 lesbians to serve openly in the armed forces and speculates that, based on the 4 Canadian experience, the United States could repeal DADT without having a 5 detrimental effect on military readiness. Ex. 8, p. 2. 6 7 I. 8 9 10 702 AND 402 A. Legal Standard To be admissible, the testimony and opinions of an expert witness must satisfy ARGUMENT LCR'S EXPERTS' OPINIONS ARE INADMISSIBLE UNDER FRE 11 the requirements of FRE 702, which provide that, "if scientific, technical or other 12 specialized knowledge will assist the trier of fact to understand the evidence or to 13 determine a fact in issue, a witness qualified as an expert . . . may testify . . . if (1) the 14 testimony is based upon sufficient facts or data, (2) the testimony is the product of 15 reliable principles and methods, and (3) the witness has applied the principles and 16 methods reliably to the facts of the case." FRE 702 (emphasis added). Accordingly, 17 expert testimony must be both relevant and reliable. See Daubert v. Merrell Dow 18 Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995) ("Daubert II"). 19 Rule 702 "assigns to the district court the role of gatekeeper and charges the 20 court with assuring that expert testimony . . . is relevant to the task at hand." U. S. v. 21 Hermanek, 289 F.3d 1076, 1093 (9th Cir. 2002) (internal quotations omitted); Kumho 22 Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999) (holding that "gatekeeper" 23 function applies to all expert testimony). LCR bears the burden of establishing the 24 admissibility of its experts' opinions by a preponderance of proof. See Daubert v. 25 Merrell Dow Pharms., 509 U.S. 579, 592 n. 10 (1993). As explained below, LCR 26 cannot meet this burden. 27 28 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 -6- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 16 of 35 1 2 3 B. LCR's Experts' Opinions Are Legally Irrelevant and Unhelpful To The Court Under FRE 702 and 402 The testimony proposed by LCR's expert witnesses is inadmissible under FRE 4 702 and 402 because that testimony is not helpful to the Court in resolving any 5 question at issue in the case. Federal Rule 702 allows for the admission of expert 6 testimony only if it will help the trier of fact to understand a fact in issue. FRE 702. 7 The first prong of the court's inquiry addresses relevancy and often implicates 8 the questions set forth in FRE 402. See Hemmings v. Tidyman's Inc., 285 F.3d 1174, 9 1184 (9th Cir. 2002) ("Whether testimony is helpful within the meaning of Rule 702 10 is in essence a relevancy inquiry."). "`Relevant evidence' means evidence having any 11 tendency to make the existence of any fact that is of consequence to the determination 12 of the action more probable or less probable than it would be without the evidence." 13 FRE 401; Baker v. Delta Airlines, Inc., 6 F.3d 632, 641 (9th Cir. 1993). "The 14 particular facts of the case determine the relevancy of a piece of evidence." U.S. v. 15 Vallejo, 237 F.3d 1008, 1015 (9th Cir. 2001). The Ninth Circuit has outlined four 16 criteria to determine the helpfulness of expert testimony: "1) qualified expert; 2) 17 proper subject; 3) conformity to a generally accepted explanatory theory; and 4) 18 probative value compared to prejudicial effect." Beech Aircraft Corp. v. U.S., 51 F.3d 19 834, 842 (9th Cir. 1995) (citation omitted).3 As discussed below, LCR's experts seek 20 to opine upon legally irrelevant issues and, pursuant to FRE 702 and 403, offer no 21 opinions that are helpful to the Court in resolving the sole legal issue in this case. 22 23 24 25 26 27 28 Nor is it permissible, as LCR apparently intends to do, to use its expert witnesses as sponsoring witnesses to admit otherwise inadmissible documents into evidence. While experts may rely upon inadmissible documents as bases for their opinions, such reliance does not constitute an independent basis for the admittance of those documents into evidence to establish the truth of what they assert. See e.g., Paddock v. Christensen, Inc., 745 F.2d 1254, 1261-62 (9th Cir. 1984). UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 3 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES -7- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 17 of 35 1 2 3 1. Evidence, Including Expert Testimony, Is Inappropriate In Resolving LCR's Facial Constitutional Challenge LCR seeks to offer the opinions of seven "experts" on a variety of topics, 4 including, among others, that DADT was motivated by animus towards homosexuals; 5 that the unit cohesion rationale articulated in the congressional findings lacks support; 6 that the treatment of homosexuals by allegedly analogous entities such as police and 7 fire departments and foreign militaries is somehow instructive as to whether DADT 8 is constitutional; and the purported disparate impact of DADT on lesbian 9 servicemembers. LCR seeks to introduce this testimony for one purpose ­ to 10 challenge the wisdom and logic of Congress in enacting DADT. Yet, such an inquiry 11 (and, indeed, fact-finding more generally), is wholly inappropriate in resolving LCR's 12 facial constitutional challenge to an Act of Congress. 13 For the reasons previously identified by the Court in its June 9, 2009 Order 14 (Dkt. No. 83, p. 16) and by defendants in their summary judgment and supplemental 15 briefing, LCR's facial constitutional challenge properly is governed by rational basis 16 review. The Supreme Court has made abundantly clear that a legislative choice 17 subject to the rational basis test "is not subject to courtroom fact-finding and may be 18 based on rational speculation unsupported by evidence or empirical data." FCC v. 19 Beach Commc'ns, 508 U.S. 307, 315 (1993). The proper analysis instead asks 20 whether the legislature "rationally could have believed" that the conditions of the 21 statute would promote its objective. W. & S. Life Ins. Co. v. State Bd., 451 U.S. 648, 22 671-72 (1981) (emphasis in original). Rational basis review, moreover, "is not a 23 license for courts to judge the wisdom, fairness, or logic of legislative choices." 24 Beach Commc'ns, 508 U.S. at 313. Rather, "those challenging the legislative 25 judgment must convince the court that the legislative facts on which the classification 26 is apparently based could not reasonably be conceived to be true by the governmental 27 28 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 -8- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 18 of 35 1 decisionmaker." Vance v. Bradley, 440 U.S. 93, 111 (1979). That is not what LCR 2 has sought to do here by the experts it has designated. 3 Moreover, even if the Court were to apply a heightened level of scrutiny, the 4 Supreme Court has rejected reliance upon expert testimony to support a constitutional 5 challenge that is governed by heightened review. See Goldman v. Weinberger, 475 6 U.S. 503, 509 (1986). In Goldman, an Air Force colonel challenged on First 7 Amendment Free Exercise grounds an Air Force regulation banning the wearing of 8 a yarmulke while in uniform. Id. at 504. As in this case, the plaintiff in Goldman 9 sought to introduce expert testimony to contradict the Air Force's rationale for the 10 ban. Id. at 509. The Supreme Court rejected that notion out of hand, finding expert 11 testimony to have no relevance in the context of a constitutional challenge to military 12 policy, and held that "[w]hether or not expert witnesses may feel that religious 13 exceptions to [the air force regulation] are desirable is quite beside the point. The 14 desirability of dress regulations in the military is decided by the appropriate military 15 officials, and they are under no constitutional mandate to abandon their considered 16 professional judgment." Id. As in Goldman, the legislative history in this case 17 reflects the substantial congressional and military deliberation on this issue,4 and 18 LCR's attempt to contradict that deliberation through the submission of expert 19 testimony should similarly be rejected. 20 Regardless of the level of scrutiny the Court ultimately adopts, because the 21 constitutionality of DADT is a question of law, consideration of "facts" beyond the 22 statute and legislative history is inappropriate. See U.S. v. Lujan, 504 F.3d 1003, 23 1006 (9th Cir.2007) ("[T]he constitutionality of a federal statute [is] a question of law 24 25 26 27 28 See Cook v. Gates, 528 F.3d 42, 58-59 (1st Cir. 2008) (noting that the House and Senate Armed Services Committees conducted 14 days of hearings, heard more than 50 witnesses, traveled to military facilities to investigate the issue, and heard from witnesses with a wide range of views and various backgrounds, "including the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, military and legal experts, enlisted personnel, officers, and public policy activists"). UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 4 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES -9- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 19 of 35 1 that we review de novo."); Gable v. Patton, 142 F.3d 940, 944 (6th Cir. 1998) 2 ("Because the four provisions are challenged with regard to facial constitutionality, 3 thus implicating only issues of law, neither Plaintiff nor Defendants contest the 4 appropriateness of summary judgment."); Gen. Offshore Corp. v. Farrelly, 743 5 F.Supp. 1177, 1187 (D.V.I 1990) ("By definition, a facial challenge is made in a 6 factual vacuum; the court's job is merely to determine whether the statute, however 7 applied, is constitutional."). By seeking to introduce expert testimony, as proposed, 8 LCR wholly ignores this binding authority. Because LCR's proposed expert 9 testimony is not helpful to the Court on the legal issue of the facial constitutionality 10 of DADT ­ that testimony is inadmissible under FRE 702 and 402, and should be 11 excluded in its entirety. See Rice v. Fox Broad. Co., 330 F.3d 1170, 1179 (9th Cir. 12 2003) (affirming exclusion that was not helpful to trier of fact). 13 14 15 2. Opinions Regarding The Motivations Behind Those That Enacted DADT Is Inadmissible Even if testimony in general somehow were permissible in support of LCR's 16 facial due process challenge, three of LCR's experts ­ Drs. Korb, Frank, and Hillman 17 ­ seek to offer the opinion that those who enacted DADT (Congress, and the 18 Executive, who signed the bill into law) were motivated by animus towards 19 homosexuals. Ex. 1, p. 2; Ex. 2, pp. 2-5; Ex. 6, p. 1. This testimony is inadmissible 20 under FRE 702 and 402; Supreme Court precedent squarely provides that inquiry into 21 the subjective motives of members of Congress is a "hazardous matter" and that 22 courts will not strike down an otherwise constitutional statute on the basis of an 23 alleged illicit motive. U.S. v. O'Brien, 391 U.S. 367, 383-84 (1968).5 Indeed, the 24 25 26 27 28 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES See Bd. of Educ. v. Mergens, 496 U.S. 226, 249 (1990) (in evaluating constitutionality of statute, "what is relevant is the legislative purpose of the statute, not the possibly religious motives of the legislators who enacted the law") (emphasis in original); Las Vegas v. Foley, 747 F.2d 1294, 1298 (9th Cir. 1984) (same). The same is true of attempts to probe the motivations of 5 (continued...) UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 -10- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 20 of 35 1 Ninth Circuit already has rejected the claim made by LCR in this case, and has held 2 that Congress' determination that DADT "further[ed] military effectiveness by 3 maintaining unit cohesion, accommodating personal privacy and reducing sexual 4 tension" was not based on "mere negative attitudes, or fear, unsubstantiated by 5 factors which are properly cognizable." Phillips v. Perry, 106 F.3d 1420, 1428-29 6 (9th Cir. 1997). 7 Despite this binding precedent ­ which has both rejected an inquiry into the 8 subjective motivations of legislators and upheld the congressional findings 9 underlying DADT as not being motivated by animus (based upon a review of those 10 findings) ­ LCR seeks to offer the opinions of Drs. Korb, Frank, and Hillman that 11 DADT was enacted out of moral animus towards homosexuals. See Ex. 6, p. 1 12 (stating that DADT was drafted out of fear towards homosexuals)]; Ex. 2, p. 2 (stating 13 that DADT based on moral animus based upon a "thorough examination of the 14 rhetoric comprising the national debate over whether to lift the ban in 1992 and 15 1993"); Ex. 1, p. 2 (citing to Frank's opinion regarding moral animus).6 This 16 testimony is inadmissable under FRE 702 and 402 because it is irrelevant as a matter 17 of law and, accordingly, it should be excluded from trial. See Rice, 330 F.3d at 1179. 18 19 20 21 5 (...continued) 22 U.S. 252, 268 n.18 (1977) ("judicial inquiries into legislative or executive motivation represent a 23 substantial intrusion into the workings of other branches of government"). 24 25 26 27 28 Indeed, Dr. Korb's opinion lacks any reliable method and, therefore, is inadmissible under FRE 702 for an additional reason. The basis for Dr. Korb's opinion that DADT was the product of prejudice is merely his belief that there was no rational basis for DADT. Ex. 9 (Tr. 72:17-73:4). This is simply ipse dixit rather than a reliable, methodologically sound opinion, and for this reason alone is inadmissible. Zenith Elecs. Corp. v. WH-TV Broad. Corp., 395 F.3d 416, 419 (7th Cir. 2005) (affirming exclusion of testimony of expert whose methodology amounted to "my expertise" or "my industry experience"). UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 6 the Executive Branch. See, e.g., Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES -11- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 21 of 35 1 2 3 3. Opinion Testimony Regarding The Issue Of Unit Cohesion Is Inadmissible Under FRE 702 and 402 LCR seeks to offer testimony from six of its experts regarding the impact of 4 unit cohesion on the potential repeal of DADT. Congress specifically considered the 5 issue of unit cohesion in considering the passage of DADT, and heard testimony from 6 a number of individuals ­ including, among others, Dr. Korb. Ex. 13, p. 246. As 7 with the other topics upon which LCR's experts offer opinions, LCR's experts 8 purport to challenge the wisdom of Congress in enacting DADT ­ a challenge that is 9 legally irrelevant. Heller v. Doe, 509 U.S. 312, 319 (1993) (holding that rational10 basis review "is not a license for courts to judge the wisdom, fairness, or logic of 11 legislative choices"); INS v. Chadha, 462 U.S. 919, 944 (1983) ("[The statute's] 12 wisdom is not the concern of the courts"); Goldman, 475 U.S. at 509 (rejecting expert 13 testimony under heightened scrutiny review of constitutional challenge to military 14 regulation); Rivera v. Patino, 524 F. Supp. 136, 145 (N.D. Cal. 1981) ("We cannot 15 question the wisdom or fairness of the legislature's policy judgments," in due process 16 challenge subject to rational-basis review). Accordingly, the Court should exclude 17 testimony from LCR's witnesses regarding the issue of unit cohesion. 18 As reflected in the Congressional record, Congress heard over five hours of 19 testimony from Dr. William Henderson, former commander of the Army Research 20 Institute, Dr. David Marlowe, chief of the Department of Military Psychiatry, Walter 21 Reed Army Research Institute, and Dr. Korb, on the issue of unit cohesion. Ex. 13, 22 pp. 248-343.7 Notably, consistent with his opinion in this case, Dr. Korb testified 23 before Congress that the effect on unit cohesion would be minimal if the ban on open 24 homosexuals serving in the military were lifted. Ex. 13, p. 259. In contrast, Drs. 25 26 27 28 Congress also heard from a number of individuals in the armed forces on the issue of unit cohesion, including General H. Norman Schwarzkopf, General Gordon Sullivan, General Colin Powell, Lieutenant General Calvin Waller, Command Master Chief David Borne, and Major Kathleen Bergeron. Ex. 14, pp. 274-77. UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 7 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES -12- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 22 of 35 1 Henderson and Dr. Marlowe disagreed with Dr. Korb on the impact of unit cohesion 2 if the ban on open homosexuals in the military were lifted. Ex. 13, p. 278 (Dr. 3 Henderson: "The effects would be far more substantial than Dr. Korb indicate. I 4 think he greatly minimized the problems involved."); Id. p. 280 (Dr. Marlowe: "My 5 bottom line is that I do not think it will be as easy or as facile as Dr. Korb thinks it 6 will be.").8 Congress considered all of this testimony, and ultimately concluded that 7 just as "[i]t is reasonable for the armed forces to take [cohesion] into consideration 8 in establishing gender-based assignment policies[,] it is reasonable for the armed 9 forces to take [cohesion] into consideration when addressing issues concerning 10 persons who engage in or have the propensity or intent to engage in sexual activity 11 with persons of the same sex." Ex. 14, p. 278. After hearing all of this testimony and 12 considering the information before it, Congress further found that "[t]he presence in 13 the armed forces of persons who demonstrate a propensity or intent to engage in 14 homosexual acts would create an unacceptable risk to the high standards of morale, 15 good order and discipline, and unit cohesion that are the essence of military 16 capability." See 10 U.S.C. § 654(a)(15). 17 LCR seeks to present six witnesses ((Belkin, MacCoun, Embser-Herbert, Korb, 18 Hillman and Frank), to challenge the wisdom of Congress in crediting certain 19 testimony over other testimony and in reaching the conclusion that the enactment of 20 DADT promotes unit cohesion. Dr. Korb expressly acknowledged as much in his 21 deposition. Ex. 9 (Tr. 150:10-20) (acknowledging disagreement with the wisdom of 22 Congress in relying upon certain testimony from the hearings). Because this 23 24 8 25 testimony the issues of privacy and sexual tension, and how the presence of open homosexuality 26 in the armed forces could potentially destroy the unit cohesion that privacy and the reduction of 27 28 Indeed, Drs. Henderson and Marlowe explicitly discussed in their congressional sexual tension seeks to foster. Ex. 13, pp. 296-297. Notably, none of LCR's experts address the issue of sexual tension in their reports, and only one of LCR's experts ­ Dr. Belkin ­ belatedly addresses the issue of privacy in his inadmissible "revised" report. Ex. 4, p. 5. UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES -13- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 23 of 35 1 testimony is legally irrelevant and unhelpful to the Court in reaching its conclusion 2 regarding the constitutionality of DADT, the Court should exclude this testimony 3 under FRE 702 and 402.9 See Rice, 330 F.3d at 1179. 4 5 6 4. Opinions Regarding The Experience Of Foreign Militaries Is Inadmissible Under FRE 702 and 402 LCR's experts similarly seek to challenge the wisdom of Congress with respect As discussed above, five of LCR's witnesses offer 7 to the applicability (or lack thereof) of foreign militaries' experience in allowing open 8 homosexuals to serve. 9 substantially similar opinions about the experience of foreign militaries in allowing 10 open homosexuals to serve. For example, Dr. Okros offers the opinion that Canada 11 changed its policy to allow gay men and lesbians to serve openly in the armed forces 12 without a negative impact on the operational effectiveness of its military and, 13 14 15 9 16 Dr. MacCoun acknowledged in his deposition that he is not offering any opinions regarding the 17 privacy rationale identified by Congress in the enactment of DADT. Ex. 12 (Tr. 130:11-24). 18 of circumstances under which DADT would be constitutional. 19 20 21 22 23 24 25 26 27 28 Further, LCR has indicated that it seeks to designate the deposition of Dr. MacCoun rather than call him live, purportedly because Dr. MacCoun has become "unavailable" under FRE 804. Under FRE 804(a)(5), a witness is considered to be unavailable if the declarant is "absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance . . . by process or other means." Fed. R. Evid. 804(a)(5) (emphasis added). Plaintiff bears the burden of demonstrating that his experts are unavailable under the Federal Rules, see Kirk v. Raymark Indus., Inc., 61 F.3d 147, 165 (3d Cir. 1995), and it has failed, to date, to meet that burden. And, even if it could make such a showing, the courts "clearly favor[ ] live testimony over deposition evidence," partly to provide the factfinder with "complete information concerning the witness's demeanor." Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1118 (9th Cir. 2002); see Van Slyke v. Capital One Bank, 503 F. Supp. 2d 1353, 1364 (N.D. Cal. 2007) ("Live testimony is easier to follow [and] can respond to all issues in play at the trial . . . ."). This is particularly true with respect to expert witnesses. See In re Air Crash Disaster, 720 F. Supp. 1493, 1502 (D. Colo. 1989). Accordingly, Dr. MacCoun's testimony should be excluded. Dr. MacCoun's opinions regarding unit cohesion are irrelevant for an additional reason. Accordingly, LCR cannot meet its burden through Dr. MacCoun of showing that there are no set DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES -14- UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 24 of 35 1 consequently, the United States could do the same if it follows Canada's example. 2 Ex. 8, pp. 2-3. Similarly, Dr. Korb opines that, subsequent to the enactment of 3 DADT, the British government in January 2000 allowed gay troops to serve openly, 4 and "the British have not experienced any cohesion problems over the past decade." 5 Ex. 1, pp. 10-11. Dr. MacCoun also opines that "the experiences of the Australian, 6 Canadian, Israeli, and British militaries has failed to turn up any evidence that openly 7 gay and lesbian personnel impair unit effectiveness." Ex. 5, p. 6. Dr. Belkin 8 similarly opines that 25 foreign militaries allow gays and lesbians to serve openly, 9 and "[n]ot a single one has reported any detriment to cohesion, readiness, recruiting, 10 morale, retention or any other measure of effectiveness or quality." Ex. 3, p. 2. Dr. 11 Frank offers a substantially similar opinion to that of Dr. Belkin. Ex. 2, p. 8. 12 These opinions, which are needlessly cumulative, are, at bottom, a policy 13 argument regarding the potential effects if DADT were repealed. More importantly, 14 this same testimony was considered ­ and rejected ­ by Congress during the lengthy 15 policy debate that led to its decision to enact DADT. During the DADT hearings, 16 Congress heard testimony from four individuals regarding the experience of foreign 17 militaries ­ Dr. Charles Moskos, Dr. David Segal, Dr. Judith Stiehm, and Lt. General 18 Calvin Waller. Ex. 13, pp. 345-453.10 Notably, like the opinions proffered by Dr. 19 Okros in this case, Dr. Segal testified before Congress specifically about the 20 experience in Canada after the repeal of its ban on open homosexuals serving in the 21 military, and stated that "in the few months since the change . . . there has been no 22 impact of the policy change on recruitment or retention, nor have there been incidents 23 of harassment of homosexuals. 24 25 26 27 28 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 Homosexuals, for their part, have not made This testimony spanned over 100 pages and included the submission of documents by the various witnesses. See Ex. 13, pp. 345-453. 10 -15- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 25 of 35 1 declarations of their sexual orientation." Id., p. 356. And, like Drs. Belkin, Frank, 2 and MacCoun, Dr. Segal also testified about the experiences in Great Britain, 3 Australia, New Zealand, Northern Ireland, Germany, Belgium, Poland, and the 4 Scandinavian countries. Id., pp. 355, 358, 359. Similarly, Dr. Moskos testified about 5 the experiences in Israel, Germany and France regarding the service of homosexuals 6 in the military. Id. pp. 349, 351. Dr. Stiehm likewise testified about the experience 7 in Canada and Australia with respect to service by homosexuals in the military. Id. 8 p. 394. After considering all of this testimony, Congress ultimately concluded that 9 "while the foreign experience is worth monitoring, it does not provide a relevant basis 10 for permitting gays and lesbians to serve openly in the armed forces of the United 11 States." See Ex. 14, p. 288. 12 Because the testimony LCR seeks to elicit in this case about foreign militaries 13 is a not-so-thinly-veiled attempt to challenge the wisdom of Congress' determination, 14 (after a thorough consideration by Congress of testimony on this issue), the Court 15 should exclude this testimony under FRE 702. Indeed, Dr. Korb acknowledged in his 16 testimony, which is illustrative of each of LCR's experts, that he is questioning the 17 wisdom of the Senate Armed Services Committee in discounting the foreign military 18 experience in enacting DADT. Ex. 9 (Tr. 230:6-18). This testimony simply is not 19 helpful to the only issue presented in this case ­ namely, whether DADT, as a matter 20 of law, is facially constitutional. See. e.g., Rice, 330 F.3d at 1179; U.S. v. Manning, 21 509 F.2d 1230, 1234 (9th Cir. 1974). This testimony is inadmissible under FRE 702 22 and 402. 23 24 26 27 28 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 5. Dr. Korb's Opinion Is An Inadmissible Legal Conclusion As discussed above, Dr. Korb's opinion in this case is that DADT is 25 unconstitutional. See Ex. 9 (Tr. 23:6-20). This opinion is a legal conclusion, and -16- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 26 of 35 1 thus inadmissible under FRE 702, which limits expert opinions to those that will help 2 the trier of fact to determine a fact in issue. 3 Legal opinions are not helpful to the trier of fact. U.S. v. Leo, 941 F.2d 181, 4 197 (3d Cir. 1991). "Experts may interpret and analyze factual evidence but may not 5 testify about the law." S.E.C. v. Capital Consultants, LLC, 397 F.3d 733, 749 (9th 6 Cir. 2005); Nationwide Transp. Fin. v. Cass Info. Sys., 523 F.3d 1051, 1059-60 (9th 7 Cir. 2008) ("[A]n expert witness cannot give an opinion as to her legal conclusion, 8 i.e., an opinion on an ultimate issue of law."); Aguilar v. Int'l Longshoremen's Union 9 Local #10, 966 F.2d 443, 447 (9th Cir. 1992).11 10 In this case, Dr. Korb offers the opinion that DADT is unconstitutional, and 11 devotes the majority of his report to his view that DADT "was irrational when it was 12 enacted in 1993." Ex. 9 (Tr. 23:6-20, 143:3-18); Ex. 1, pp. 5-9. Dr. Korb explained 13 his opinion as follows: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 Q. A. Q. And so your opinion is there's no rational basis when Don't Ask, Don't Tell was enacted in 1993 because there was no rational basis? That's correct. Why was there no rational basis? See also In re Initial Pub. Offering Sec. Litig., 174 F. Supp. 2d 61, 64 (S.D.N.Y. 2001) (excluding expert's opinion regarding whether recusal was appropriate based upon application of statute because it constituted legal conclusion); Lira v. Cate, No. 00-0905, 2010 WL 727979, *4 n.5 (N.D. Cal. Feb. 26, 2010) (excluding expert testimony "regarding the appropriate rates under the PLRA [and] whether a multiplier is authorized by the PLRA," as constituting improper legal opinions); U.S. v. Baca, 610 F. Supp. 2d 1203, 1220 (E.D. Cal. 2009) (excluding expert opinion that item was a "cultural resource" for purposes of a statute because it constituted a legal opinion); Johnson v. Bush, No. 00-3542, 2002 WL 34355953, *1 (S.D. Fla. Apr. 19, 2002); Jarrow v. Cupit, No. 99-3539, 2000 WL 1537989, *2 (E.D. La. Oct. 17, 2000). 11 -17- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 27 of 35 1 2 3 4 5 6 A. Because there was never any data that showed allowing people to serve who were openly gay was going to cause problems in unit cohesion or for military readiness. Q, A. Why does the absence of data on those two points, in your mind, show that Don't Ask, Don't Tell, when enacted in 1993, was irrational? Well, without data, I don't see how you can have a rational policy. 7 Ex. 9 (Tr. 143:19-144:11). Congress obviously concluded otherwise based on a great 8 deal of testimony and information before it at the time it considered the issue and 9 enacted the statute. Dr. Korb's opinion is both a legal conclusion and a tautology, 10 and is not helpful to the Court in resolving whether DADT is facially constitutional. 11 Accordingly, Dr. Korb's opinions are inadmissible under FRE 702. 12 13 14 6. Opinions Regarding The Purported Lack of Empirical Evidence In Support of DADT Is Inadmissible Four of LCR's experts opine that there is a lack of empirical evidence to 15 support DADT. See Ex. 6 (Dr. Hillman - opining that there is no rationale for the 16 policy that is supported by empirical evidence); Ex. 2 (Dr. Frank - same); Ex. 1 (Dr. 17 Korb - same); Ex. 3 (Dr. Belkin - same). The Supreme Court explicitly rejected a 18 similar argument in Goldman, 475 U.S. at 509, finding that whether a military policy 19 is supported by "a scientific study" is "quite beside the point. The desirability of 20 [suitability standards] in the military is decided by the appropriate military officials, 21 and they are under no constitutional mandate to abandon their considered professional 22 judgment." See also Beach Commc'ns, 508 U.S. at 315 (holding that, under rational 23 basis review, "a legislative choice is not subject to courtroom fact-finding and may 24 be based on rational speculation unsupported by evidence or empirical data") 25 (emphasis added); Vance, 440 U.S. at 111 n.28 (under rationality review, state need 26 27 28 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 -18- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 28 of 35 1 not "verify logical assumptions with statistical evidence"); Phillips, 106 F.3d at 1425 2 (quoting Beach Communications). LCR's experts' opinions regarding the purported 3 lack of empirical evidence in support of DADT is irrelevant to the resolution of 4 LCR's facial due process challenge, and should be excluded under FRE 702 and 402. 5 II. 6 7 TESTIMONY CONCERNING ALLEGED DISPROPORTIONATE IMPACT OF DADT ON LESBIANS IS INADMISSIBLE Under FRE 702 and 402, the Court should exclude expert testimony regarding 8 the purported disproportionate impact DADT has on lesbian service members because 9 this testimony is not helpful to the Court in resolving LCR's facial due process 10 challenge to DADT. The only opinion that Dr. Embser-Herbert offers is that DADT 11 has a disproportionate impact on women. See Ex. 7, pp. 1-10. Dr. Hillman dedicates 12 a significant portion of her expert report to the same opinion. See Ex. 6, p. 1, ¶ 2. 13 Their opinions about the effects of DADT on lesbian service members, however, are 14 not relevant to LCR's facial due process claim and, therefore, should be excluded. 15 As an initial matter, LCR does not have standing to bring a claim that DADT 16 disproportionately impacts women. As an associational plaintiff, LCR's claims must 17 be based on harms suffered by its members. See United Food & Commercial Workers 18 Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 555 (1996) ("requiring an 19 organization suing as representative to include at least one member with standing to 20 present, in his or her own right, the claim (or the type of claim) pleaded by the 21 association."). Because LCR has not identified a female member who would have 22 standing to bring her own claim that she was harmed by DADT, it lacks standing to 23 bring claims that DADT has a disproportionate impact on women. 24 26 27 28 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 In any event, evidence that a statute has a disproportionate impact is relevant 25 to equal protection, not due process, claims. Gordon v. Davenport, No. 08-3341, -19- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 29 of 35 1 2009 WL 322891,*4 (N.D. Cal. 2009) (recognizing that evidence of a 2 disproportionate impact supports equal protection rather than due process claims.). 3 As the Court already has dismissed LCR's equal protection claim, Drs. Hillman's and 4 Ember-Herbert's opinions that DADT disproportionately impacts women are 5 irrelevant to LCR's remaining claims. See Dkt. No. 83, pp. 18-20. Accordingly, Drs. 6 Hillman and Embser-Herbert's opinions about the impact of DADT on women should 7 be excluded under FRE 702 and 402. See Rice, 330 F.3d at 1179. 8 III. 9 10 OPINIONS REGARDING THE "CONTINUING" RATIONALITY OF DADT ARE INADMISSIBLE UNDER FRE 702 AND 402 In addition to expressing its intention to submit expert testimony challenging 11 the wisdom of Congress in enacting DADT in 1993, LCR seeks to introduce 12 testimony regarding the "continued" rationality of DADT today. For example, LCR's 13 experts seek to offer opinions concerning the costs associated with implementation 14 of DADT over the past 17 years (Ex. 1, pp. 2-4, 6-7 (Korb); Ex. 2, pp. 11-14 (Frank)); 15 claims that DADT has decreased military readiness over time (Ex. 1, pp. 1, 6-9 16 (Korb); Ex. 2, pp. 11-16 (Frank); Ex. 6, p. 2 (Hillman)); the results of recent polling 17 of civilians and servicemembers regarding their attitudes towards homosexuals 18 serving openly in the military (Ex. 1, p. 8 (Korb); Ex. 2, pp. 18-21 (Frank); Ex. 3, pp. 19 3-4 (Belkin); Ex. 5, p.6 (MacCoun)); and the experiences of foreign militaries post20 1993 in allowing homosexuals to serve openly (Ex. 1, pp. 4, 10-11 (Korb); Ex. 2, pp. 21 8, 9-10 (Frank); Ex. 3, p. 2 (Belkin); Ex. 5, p. 6 (MacCoun)). This testimony is 22 legally irrelevant and not helpful to the Court under FRE 702 and 402. 23 As explained in Defendants' motion for summary judgment, the DADT policy 24 must be reviewed at the time of its enactment and is not subject to challenge on the 25 ground of changed circumstances. See, e.g., U.S. v. Jackson, 84 F.3d 1154, 1161 (9th 26 27 28 DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S EXPERT WITNESSES UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 -20- Case 2:04-cv-08425-VAP -E Document 178 Filed 06/18/10 Page 30 of 35 1 Cir. 1996); Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 977 (1st Cir. 1989) 2 ("evaluating the continued need for, and suitability of, legislation of this genre is 3 exactly the kind of policy judgment that the rational basis test was designed to 4 preclude."). Courts have found that even where Congress has determined that a 5 previous enactment is no longer necessary, that finding does not render the statute 6 unconstitutional. Smart v. Ashcroft, 401 F.3d 119, 123 (2d Cir. 2005); Howard v. 7 U.S. Dep't of Def., 354 F.3d 1358, 1361-62 (Fed. Cir. 2004). Indeed, even if it were 8 legally relevant to determine whether Congress rationally could conclude today that 9 DADT meets the legitimate interests identified in the

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