Gilman v. Fisher, et al

Filing 365

ORDER signed by Judge Lawrence K. Karlton on 8/31/2011 ORDERING Professor Berk is APPOINTED as neutral expert witness; Professor Berk shall be compensated at the rate of $250 per hour and shall submit quarterly itemized bills to the court; the c ourt will file the bills and provide the parties with 14 days to object; the court will then direct payment of the bill in full, or in part; plaintiffs shall submit to the court w/i 14 days of this order an electronic version of all data described above; they must also serve a copy of such data upon defendants; the 9/6/2011 status conference in this case is VACATED. (Waggoner, D)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD M. GILMAN, et al.,
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NO. CIV. S-05-830 LKK/GGH
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Plaintiffs,
v.
O R D E R

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EDMUND J. BROWN, et al.,

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Defendants.
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/

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On July 25, 2011, the court ordered the parties to show cause

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why a statistical expert witness should not be appointed pursuant

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to FRE 706, and if appointment is made, whether the court should

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apportion

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defendants. (Doc. No. 359). The court also instructed the parties

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to submit nominations for statistical expert witnesses.

such

expert

costs

half

to

plaintiffs

and

half

to

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On August 24, 2011, the parties responded to the order to show

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cause and submitted nominations for potential expert witnesses.

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Plaintiffs have agreed that an expert should be appointed and that

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costs should be apportioned equally. Defendants contend, however,

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that an expert will not be helpful in the instant case and that
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plaintiffs should pay the entire cost of any neutral experts

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appointed by the court.

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For the reasons discussed in the order to show cause, the

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court finds that appointment of a neutral expert witness is

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appropriate in this case. The court has reviewed the background

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information for the proposed expert witnesses, and will appoint

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Professor Richard A. Berk of the University of Pennsylvania. The

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court

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testimony.1

is

confident

that

Professor

Berk

can

provide

unbiased

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Professor Berk’s fees are $250 per hour for this case. The

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court finds this rate to be reasonable. Defendants urge the court

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to apportion his fees entirely to plaintiffs. They do not argue

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that they lack the resources to pay the expert costs, but rather

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contend that plaintiffs should bear any costs because the expert

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will only be evaluating plaintiffs’ evidence. The argument is

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without merit. The court is appointing an expert because it

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believes

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regardless of who produced it. Accordingly, it concludes

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costs and fees should be apportioned equally between plaintiffs and

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defendants.

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it

needs

his

expertise

to

evaluate

the

evidence,
that

The scope of Professor Berk’s expert testimony shall be to

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Defendants appear to have concerns about the ability of an
expert to be impartial. To perhaps assuage the concerns of
defendants about his ability to be neutral, Professor Berk has
informed the court that he had served as an expert for the
California Department of Corrections and Rehabilitation in the past
and currently serves as an expert for the parole and probation
departments of several mid-Atlantic states.
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determine the statistical probability that Proposition 9 will have

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the effect of prolonging incarceration for all or some class

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members. Professor Berk should separately consider the evidence

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presented by plaintiffs at the April 6, 2011 hearing and the

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evidence accumulated by plaintiffs to date. In the order to show

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cause,

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questions: first, to consider the likelihood that the modified

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deferral periods will prolong incarceration and second, to consider

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the likelihood that the advanced hearing process, as applied, will

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mitigate any prolonged incarceration.2 The court in no way intends

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to constrain Professor Berk’s analysis, and encourages him to go

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beyond the limitations of these questions to the extent that he

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determines that additional analysis will shed light on the question

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before

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significant risk for increased incarceration by class members.

the

the

court

court:

separated

namely

the

analysis

whether

into

Proposition

two

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separate

creates

a

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The court further notes that the current motion before the

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court is for a preliminary injunction. Accordingly, the court

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recognizes that there may not yet be sufficient evidence from which

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to draw conclusions as to certain subgroups of the class. The focus

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of the instant inquiry is whether some or all class members are

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likely

to

experience

prolonged

incarceration

as

a

result

of

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The court notes that in the order to show cause it used the
term "significant risk" when describing the questions for expert
testimony. Recognizing the ambiguity caused by use of the term
significant with respect to statistical expert testimony, the court
now makes clear that the expert is to analyze the likelihood of
increased incarceration and the court is to determine whether the
likelihood
demonstrates
a
significant
risk
of
increased
incarceration.
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Proposition 9 before final resolution of this case, and not whether

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they are likely to experience prolonged incarceration ever. For

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this reason, the court further instructs Professor Berk to opine

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on the likely time in which the class or a subgroup of the class

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will experience a likelihood of prolonged incarceration, if any.

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Professor Berk is appointed as a neutral expert. For this

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reason,

plaintiffs

and

defendants

may

no

longer

communicate

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directly with him. The court will coordinate with Professor Berk.

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Plaintiffs shall submit to the court within fourteen (14) days

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of the issuance of this order all evidence presented in the

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evidentiary hearing, all data underlying the summaries and other

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analyses presented at the hearing, and all data obtained to date

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from the Rutherford class action and concerning implementation of

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the advanced hearing process. If possible, plaintiffs shall submit

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this information in electronic format. Plaintiffs shall also serve

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a copy of this evidence upon defendants. Upon receipt, the court

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shall send the evidence to Professor Berk for analysis.

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Further, a status conference is currently set for September

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6, 2011. In light of this court’s expert appointment, the court

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vacates the status. The court shall set a further status conference

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after Professor Berk provides the court with an estimate on the

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time required to prepare his expert report.

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For the foregoing reasons, the court ORDERS as follows:

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(1)

Professor Berk is appointed as a neutral expert witness.

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(2)

Professor Berk shall be compensated at the rate of $250

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per hour. He shall quarterly submit itemized bills to
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the court. The court will file the bills and provide the

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parties with fourteen (14) days to object. The court

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will then direct payment of the bill, in full or in

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part.

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(3)

Plaintiffs shall submit to the court within fourteen

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(14) days of the issuance of this order an electronic

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version of all data described above. They must also

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serve a copy of such data upon defendants.

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(4)

The September 6, 2011 status in this case is VACATED.

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IT IS SO ORDERED.

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DATED:

August 31, 2011.

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