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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION APRIL DEBOER, et al, Plaintiffs, v RICHARD SNYDER, et al Defendants. Civil Action No. 12-cv-10285 HON. BERNARD A. FRIEDMAN MAG. MICHAEL J. HLUCHANIUK STATE DEFENDANTS RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION IN LIMINE TO EXCLUDE TESTIMONY OF DR. MARK REGNERUS

Dana M. Nessel (P51346) Attorney for Plaintiffs 645 Griswold Street, Suite 4300 Detroit, MI 48226 (313) 556-2300; Fax (313) 965-5580 dana@nesselandkessellaw.com

Carole M. Stanyar (P34830) Attorney for Plaintiffs 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 (313) 819-3953 cstanyar@wowway.com

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Kristin M. Heyse (P64353) Joseph E. Potchen (P49501) Michelle M. Brya (P66861) Tonya C. Jeter (P55352) Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700; Fax (517) 351-1152 heysek@michigan.gov potchenj@michigan.gov bryam@michigan.gov jetert@michigan.gov

Andrea J. Johnson (P74596) Michael L. Pitt (P24429) Beth M. Rivers (P33614) Attorneys for Defendant Lisa Brown Pitt McGehee Palmer Rivers & Golden, P.C. 117 W. Fourth St., Ste. 200 Royal Oak, MI 48067 (248) 398-9800 ajohnson@pittlawpc.com mpitt@pittlawpc.com brivers@pittlawpc.com
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STATE DEFENDANTS RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION IN LIMINE TO EXCLUDE TESTIMONY OF DR. MARK REGNERUS Bill Schuette Attorney General Kristin M. Heyse Assistant Attorney General Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 P64353

Dated: February 14, 2014

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TABLE OF CONTENTS Page Table of Contents ....................................................................................... i Index of Authorities...................................................................................ii Controlling or Most Appropriate Authority............................................. iv Introduction ............................................................................................... 1 Argument ................................................................................................... 2 I. Dr. Mark Regneruss opinions and testimony are relevant, reliable, and requisiteall of Plaintiffs challenges to Dr. Regnerus go to weight, not admissibility. ................................. 2 A. B. C. Dr. Regneruss opinions and testimony are relevant. ............ 6 Dr. Regneruss opinions and testimony are reliable. ............. 7 Dr. Regneruss opinions and testimony are requisite. ......... 10

Conclusion and Relief Requested ............................................................ 12 Certificate of Service ............................................................................... 13

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INDEX OF AUTHORITIES Page Cases Coleman v. Home Depot, Inc., 306 F.3d 1333 (3d Cir. 2002) ............................................................ 5, 10 Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768 (6th Cir. 2002) .............................................................. 7, 8 General Electric Co. v. Joiner, 522 U.S. 136 (1997) ................................................................................ 8 In re TMI Litigation, 193 F.3d 613 (3d Cir. 1999), amended by 199 F.3d 158 (3d Cir. 2000) ....................................................................................................... 4 In re Unisys Savings Plan Litigation, 173 F.3d 145 (3d Cir. 1999) ................................................................ 5, 9 McCullock v. H.B. Fuller Co., 61 F.3d 1038 (2d Cir. 1995) .................................................................... 3 McLean v. 988011 Ontario, Ltd., 224 F.3d 797 (6th Cir. 2000) .................................................................. 5 Ruiz-Troche v. Pepsi Cola, 161 F.3d 77 (1st Cir. 1998) ..................................................................... 9 Stollings v. Ryobi Technologies, Inc., 725 F.3d 753 (7th Cir. 2013) .................................................................. 4 United States v. Krenzelok, 874 F.2d 480 (7th Cir. 1989) .................................................................. 5 United States v. Stone, 848 F. Supp. 2d 714 (E.D. Mich. 2012) .................................................. 4

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Rules Fed. R. Evid. 401 ....................................................................................... 2 Fed. R. Evid. 402 ....................................................................................... 2 Fed. R. Evid. 403 ................................................................................. 5, 10

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CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); Fed. R. Evid. 401, 402, 403, 702.

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INTRODUCTION Issues that go solely to the weight of the evidence do not dictate whether that evidence is admissible. A trial court must be ever-mindful of this distinction, especially with respect to expert witnesses, given the courts gatekeeping role. Arguments and attacks pertaining to weight should be addressed through cross-examination and presentation of contrary evidence, not outright exclusion. Here, Plaintiffs challenge Dr. Mark Regnerus under Daubert v. Merrell Dow Pharmaceuticals, but all of their arguments go to the weight of Dr. Regneruss opinions and testimony, not their admissibility. None of their challenges render Dr. Regneruss opinions and testimony inadmissible, because his testimony remains relevant, reliable, and requisite. Accordingly, the State Defendants respectfully request that this Court deny Plaintiffs motion to exclude Dr. Regnerus.

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ARGUMENT I. Dr. Mark Regneruss opinions and testimony are relevant, reliable, and requisiteall of Plaintiffs challenges to Dr. Regnerus go to weight, not admissibility. Plaintiffs challenges to Dr. Mark Regneruss opinions and testimony fail on all fronts. First, Dr. Regneruss opinions in this case are eminently relevant in that they directly address the sole triable issue: the States rationale for retaining the definition of marriage. Second, Plaintiffs challenges to Dr. Regneruss reliability go to weight, not admissibility. Finally, Dr. Regneruss opinions in this case carry significant probative value because they go to the heart of the issue the Court has delineated for this trial. Thus, Dr. Regnerus should be permitted to testify at trial. If an experts opinions are relevant, they should be admitted. All evidence must be relevant to be admissible. Fed. R. Evid. 402. Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Fed. R. Evid. 401. This is a liberal standard. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993). For experts in particular, a proffered experts testimony

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must be sufficiently tied to the facts of the case such that it will assist the trier of fact to understand the evidence or to determine a fact in issue. Id. at 591. Specifically, there must be a fit or valid connection between the experts reasoning or methodology and the pertinent questionthe facts at issuebefore the court. Id. at 591-93. Further, issues that pertain solely to the weight of the evidence do not render the evidence inadmissible. While [t]rial judges must exercise sound discretion as gatekeepers of expert testimony under Daubert, they do not take on the role of St. Peter at the gates of heaven, performing a searching inquiry into the depth of an expert witnesss soulseparating the saved from the damned. McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1045 (2d Cir. 1995) (referencing Daubert, 509 U.S. 579). This is because [s]uch an inquiry would inexorably lead to evaluating witness credibility and weight of the evidence, the ageless role of the [trier of fact]. Id. If an attack on an expert witness pertains only to the weight of the evidence, the experts opinion should be admitted. See Daubert, 509 U.S. at 596 (Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden

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of proof are the traditional and appropriate means of attacking shaky but admissible evidence.). The reliability of an experts conclusions goes to weight, not admissibility. If the experts testimony is based on well-established science, the courts generally have concluded that reliability problems go to weight, not admissibility. United States v. Stone, 848 F. Supp. 2d 714, 719 (E.D. Mich. 2012) (internal citations and quotation marks omitted). An expert may provide expert testimony based on a valid and properly applied methodology and still offer a conclusion that is subject to doubt, but [i]t is the role of the [trier of fact] to weigh these sources of doubt. Stollings v. Ryobi Technologies, Inc., 725 F.3d 753, 765-66 (7th Cir. 2013) (citing Daubert, 509 U.S. at 595). The experts conclusions need not be unimpeachable to be admissible. Id. at 765. The admissibility inquiry thus focuses on principles and methodology, not on the conclusions generated by the principles and methodology. In re TMI Litigation, 193 F.3d 613, 665 (3d Cir. 1999), amended by 199 F.3d 158 (3d Cir. 2000) (emphasis added). Credibility issues also go to weight, rather than admissibility. For example, expert witnesses cannot be excluded on the basis of bias.

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In re Unisys Savings Plan Litigation, 173 F.3d 145, 166 n.11 (3d Cir. 1999). In addition, attacks on the factual bases of an experts opinion bear on the weight of the evidence rather than on its admissibility. McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 801 (6th Cir. 2000) (internal citation and quotation marks omitted). Further, expert testimony, like all evidence, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, waste of time, undue delay, or needless presentation of cumulative evidence. Fed. R. Evid. 403. However, there is a strong presumption that relevant evidence should be admitted, and thus for exclusion under Rule 403 to be justified, the probative value of evidence must be substantially outweighed by the problems in admitting it. Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343-344 (3d Cir. 2002). When in doubt, Rule 403 requires admission[.] United States v. Krenzelok, 874 F.2d 480, 482 (7th Cir. 1989). [E]vidence that is highly probative is exceptionally difficult to exclude. Coleman, 306 F.3d at 1344.

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A.

Dr. Regneruss opinions and testimony are relevant.

Here, none of Plaintiffs challenges invalidate Dr. Regneruss relevance. Indeed, his opinions and testimony address precisely what the Court has delineated as the sole issue for trial: whether the alleged rationales for the [Michigan Marriage Amendment] serve a legitimate state interest. (Op. & Order Den. Cross Mot. for Summ. J., Doc. #89 at 4.) One of the proffered rationales is that providing children with biologically connected role models of both genders . . . are necessary to foster healthy psychological development . . . . (Id. at 5-6.) In other words, child outcomes when raised by same-sex parents. Dr. Regneruss opinions and testimony address adult outcomes among children whose parents were reported to have had same-sex romantic relationships, based on a sociological study he conducted called the New Family Structure Study (NFSS). (Expert Report of Mark D. Regnerus, Ph.D. at 1, attached as Exhibit 1.) Thus, his opinions and testimony are directly on point and thus relevant to this case. All of Plaintiffs relevance arguments go to weight, rather than admissibility. For example, the comparisons Dr. Regnerus relies upon do not render his testimony or opinions irrelevant because they do not

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alter the nature or subject-matter of his testimony. (See Br. in Support of Pl. Mot. in Limine to Exclude Testimony of Mark Regnerus, Doc. #116 at 8-9.) In addition, the single mention in 35 pages that adopted and foster children are at a higher risk of injury than parents biological children, as well as whether Dr. Regnerus accounts for marriage as it relates to family stability, both go to weight. (See Expert Report of Mark D. Regnerus, Ph.D. at 3, 5, attached as Exhibit 1 (stating that his study is not meant to address causation).) Hence, these are all issues to be addressed on cross examination, not a matter of admissibility to be resolved by the Court. See Daubert, 509 U.S. at 596 (Vigorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.). B. Dr. Regneruss opinions and testimony are reliable.

Plaintiffs arguments against reliability go only to weight as well. For instance, the Plaintiffs point to Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 794 (6th Cir. 2002), contending that Dr. Regnerus had to rule out all plausible alternatives for his opinions and testimony to be considered reliable. (See Br. in Support of Pl. Mot. in Limine to 7

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Exclude Testimony of Mark Regnerus, Doc. #116 at 12-13.) But that case itself noted that an expert need not eliminate all other possible causes or explanations for the experts testimony to be admissible. Conwood, 290 F.3d at 794. This, too, is an issue of weight. Further, Plaintiffs argument that Dr. Regneruss study is not generally accepted by the social science community does not render his opinions and testimony inadmissible. (See Br. in Support of Pl. Mot. in Limine to Exclude Testimony of Mark Regnerus, Doc. #116 at 13-16.) The notion of general acceptance is one of numerous factors to be considered in a Daubert inquiry, as the Federal Rules of Evidence displaced general acceptance as the previous governing standard for the admissibility of expert testimony. Daubert, 509 U.S. at 585-87, 594. Here, even if Dr. Regneruss sociological study was not generally accepted, which it is, it is not the sort of junk science with which Daubert was concerned, and thus should not be excluded. General Electric Co. v. Joiner, 522 U.S. 136, 153 (1997). To the extent that there are conflicting studies and theories in this area, Daubert neither requires nor empowers trial courts to determine which of several competing scientific theories has the best provenance. Ruiz-Troche v.

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Pepsi Cola, 161 F.3d 77, 85 (1st Cir. 1998). Thus, his opinions and testimony are reliable and admissibleany concerns go to weight and should be addressed on cross-examination. Plaintiffs third and final reliability argument fails as well. Plaintiffs argue that Dr. Regnerus conducted his study for the purpose of litigation and that he is biased. (Br. in Support of Pl. Mot. in Limine to Exclude Testimony of Mark Regnerus, Doc. #116, at 16-18.) In the same email Plaintiffs cite alleging that Dr. Regneruss study was conducted with an eye toward Supreme Court litigation, the latter half of Luiz Tellezs statements undermine their argument: It would be great to have this before major decisions of the Supreme Court but that is secondary to the need to do this and do it well . . . . (Dep. Ex. 11 at 1, attached as Exhibit 2 (emphasis added).)1 Further, Dr. Regneruss religious belief disfavoring same-sex marriage does not inform or guide his professional work. See In re Unisys Savings Plan Litigation, 173 F.3d at 166 n.11 ([E]xpert witnesses cannot be excluded on the basis of bias.). And, even if Plaintiffs other quotations are taken out of context as well. First and foremost, the goal of the study was to seek out the truth, whatever that may turn out to be. (Dep. Ex. 14 at 2, attached as Exhibit 3.)
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Plaintiffs allegations are true, which they are not, they do not render Dr. Regneruss opinions and testimony inadmissiblethey are issues of weight alone. C. Dr. Regneruss opinions and testimony are requisite.

Finally, Dr. Regneruss opinions and testimony carry significant probative value and, thus, should not be excluded under Rule 403. Again, Dr. Regneruss testimony goes to the heart of the inquiry the Court has reserved for trial. Hence, his opinions and testimony are highly probative. The single paragraph out of 63 in which Dr. Regnerus discusses risks to adopted and foster-care children versus biological children does not substantially outweigh his high probative value, as Rule 403 requires. Coleman, 306 F.3d at 1344 ([E]vidence that is highly probative is exceptionally difficult to exclude.). Indeed, Dr. Regnerus even qualifies his statistical statements: One should not read such statements as a blanket indictment of step-parenting or adoption, whether gay or straight, since most such arrangements are and remain peaceable. (Expert Report of Mark D. Regnerus, Ph.D. at 3, attached as Exhibit 1.) Hence, Plaintiffs argument must fail.

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In sum, Dr. Regnerus should not be excluded from this trial, because his opinions and testimony are relevant, reliable, and requisite. Plaintiffs only raise issues of weight that go beyond this Courts gatekeeping role and are reserved for testing on cross-examination.

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CONCLUSION AND RELIEF REQUESTED State Defendants respectfully request this Court deny Plaintiffs Motion in Limine to Exclude Testimony of Dr. Mark Regnerus. Respectfully submitted, Bill Schuette Attorney General /s/ Kristin M. Heyse Kristin M. Heyse Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 (P64353)

Dated: February 14, 2014

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CERTIFICATE OF SERVICE I hereby certify that on February 14, 2014, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.

Dated: February 14, 2014

/s/ Kristin M. Heyse Kristin M. Heyse Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 (P64353)

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