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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION APRIL DEBOER, et al., Plaintiffs, -vsRICHARD SNYDER, et al., Defendants. __________________________/ PLAINTIFFS’ MOTION TO BAR TESTIMONY OF STATE DEFENDANTS’ PROPOSED EXPERTS ALLEN AND PRICE NOW COME THE PLAINTIFFS, by and through their attorneys, and pursuant to Fed. R. Evid. 104, 403, and 702, move this Court for an Order excluding testimony of Douglas Allen and Joseph Price in this matter for the reasons stated in the attached supporting Brief. Respectfully submitted, s/Carole M. Stanyar CAROLE M. STANYAR P34830 221 N. Main Street, Suite 300 Ann Arbor, MI 48103 (313) 819-3953 cstanyar@wowway.com Dated: February 5, 2014 s/ Dana Nessel DANA M. NESSEL P51346 645 Griswold Street, Suite 4300 Detroit, MI 48226 (313) 556-2300 dananessel@hotmail.com Attorneys for Plaintiffs E.D.Mich. No. 12-10285 Hon. Bernard A. Friedman

Of counsel:

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s/Robert A. Sedler ROBERT A. SEDLER P31003 Wayne State University Law School 471 W. Palmer Street Detroit, MI 48202 (313) 577-3968 rsedler@wayne.edu

s/ Kenneth M. Mogill Kenneth M. Mogill P17865 MOGILL, POSNER & COHEN 27 E Flint Street, 2nd Floor Lake Orion, MI 48362 (248) 814-9470 kmogill@bignet.net

BRIEF IN SUPPORT OF PLAINTIFFS’ DAUBERT MOTION TO PRECLUDE TESTIMONY OF STATE DEFENDANTS’ PROPOSED EXPERTS ALLEN AND PRICE I. INTRODUCTION The proposed testimony of the State Defendants’ proposed experts, Douglas Allen and Joseph Price, fails to meet the minimum requirements imposed by the Federal Rules of Evidence. They are not qualified to offer the expert opinions

proffered by the State Defendants. Moreover, a flawed methodology renders the opinions unreliable and irrelevant under Federal Rules of Evidence 104, 403, and 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). For the reasons explained herein, the Court should exclude their testimony in advance of trial. However, if the Court permits them to testify, Plaintiffs ask the Court to exclude their testimony from evidence or accord it little to no weight. II. THE LEGAL STANDARD GOVERNING EXPERT TESTIMONY Federal Rule of Evidence 702 provides that expert testimony relating to “scientific, technical, or other specialized knowledge” is admissible only if it “will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed.

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R. Evid. 702(a); see Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 n.10 (1993)) (explaining that an expert must “testify to scientific knowledge that will assist the trier of fact in understanding and disposing of issues relevant to the case”). A witness qualified as an expert may only offer testimony if “the testimony is based upon sufficient facts or data; the testimony is the product of reliable principles and methods; and the expert has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702(b)-(d). Additionally, expert testimony is subject to general evidentiary rules, such as Federal Rules of Evidence 401 and 403. See United States v. LeBlanc, 45 Fed. App’x 393, 400 (6th Cir. 2002) (“Obviously, expert testimony is subject to the same relevancy constraints as all other kinds of evidence.”); Moisenko v. Volkswagenwerk Aktiengesellschaft, 198 F.3d 246 (6th Cir. 1999) (applying Fed. R. Evid. 403 balancing test to expert testimony). A. Expert Witness Testimony Must Be Based on Scientific, Technical, or “Other Specialized” Knowledge and Must Concern a Matter Beyond a Layperson’s Common Knowledge An expert’s testimony must be based on “scientific, technical, or other specialized knowledge [that] will help the trier of fact.” Fed. R. Evid. 702(a). A witness may not testify as an expert unless he or she testifies about matters that are beyond the ability and experience of the average layperson. See, e.g., Berry v. City of Detroit, 25 F.3d 1342, 1349-50 (6th Cir. 1994) (“If everyone knows [the

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knowledge in question], then we do not need an expert because the testimony will not ‘assist the trier of fact to understand the evidence or to determine a fact in issue’ . . . .” (quoting Fed. R. Evid. 702)). B. Expert Witness Testimony Must be Relevant and Reliable Under Federal Rule of Evidence 702, the trial judge is charged with the task of ensuring an expert’s testimony is relevant to the task at hand and rests on a reliable foundation. Daubert, 509 U.S. at 591-92; Zuzula v. ABB Power T & D Co., Inc., 267 F. Supp. 2d 703, 711 (E.D. Mich. 2003) (“[T]estimony is unhelpful when it is unreliable or irrelevant.”). Accordingly, the State Defendants bear the burden of establishing by a preponderance of the evidence that the witnesses’ testimony, opinion, and reports are relevant and reliable. See Fed. R. Evid. 104(a); Daubert, 509 U.S. at 589-93; Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001) (“It is the proponent of the testimony that must establish its admissibility by a preponderance of proof.”). 1. Relevance To be relevant, the proffered expert testimony must be sufficiently tied to the facts of the case such that it will “assist the trier of fact to understand the evidence or to determine a fact in issue.” Daubert, 509 U.S. at 591 (citing Fed. R. Evid. 702). A “fit” or valid connection must exist between the expert’s reasoning or methodology and the facts at issue before the Court. Id. at 591-93. The necessary

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connection between the expert’s methodology and ultimate conclusion may not be established on speculation alone. General Electric v. Joiner, 522 U.S. 136, 146 (1997) (“[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only be the ipse dixit of the expert.”). In the context of this case, the State Defendants must demonstrate a rational basis for the laws being challenged. Based upon this Court’s order, State Defendants have relied on four purported justifications: “(1) providing children with

‘biologically connected role models of both genders that are necessary to foster healthy psychological development; (2) forestalling the unintend ed consequences that would result from the redefinition of marriage; (3) tradition or morality; and (4) promoting the transition of ‘naturally procreative relationships into stable unions.’” R. 89, Opinion Denying Cross Motions for Summary Judgment, p 6. To be admissible expert testimony, the witnesses’ testimony, opinion, and reports must evince “a valid scientific connection” to that particular inquiry “as a precondition for admissibility.” Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir. 2000). 2. Reliability In addition to being relevant, an expert’s testimony must also be reliable. Reliability of an expert’s conclusions is based on the expert’s knowledge or experience in his or her discipline, rather than on subjective belief or unsupported

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speculation. See, e.g., Kuhmo Tire, 526 U.S. at 148; Daubert, 509 U.S. at 589-90. The Court must ensure that the expert employs “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012) (internal quotation marks omitted). In cases of scientific testimony, this means that an expert’s testimony not only must reflect scientific knowledge, but also must be “derived by the scientific method” and amount to “good science.” See Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311, 1315 (9th Cir. 1995) (“Daubert II”). In essence, the Court must “be on guard against all forms of junk science that may creep into the courtroom.” Greenwell v. Boatwright, 184 F.3d 492, 501 (6th Cir. 1999). Daubert suggested four non-exclusive criteria “against which to measure the validity of the underlying principles and methods which undergird an expert's opinion: [1] whether the technique or theory is capable of being tested; [2] whether it has been published and reviewed by peers in the relevant technical community; [3] the potential or known rate of error yielded by the methodology; and [4] whether the principle or theory has been generally accepted or shunned by the community of experts in the field.” Zuzula, 267 F. Supp. 2d at 712. The Sixth Circuit has identified several “red flags” that “caution against certifying an expert,” including (1) reliance on anecdotal evidence, (2) improper extrapolation, (3) failure to consider other


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possible causes, (4) lack of testing, and (5) subjectivity. Newell Rubbermaid, Inc., 676 F.3d at 527. C. The Probative Value of Expert Witness Testimony Must Outweigh its Prejudicial Effect Finally, as with all evidence, the Court may exclude expert testimony if its probative value is substantially outweighed by unfair prejudice, confusion of the issues, waste of time, undue delay, or needless presentation of cumulative evidence. See Fed. R. Evid. 403; Moisenko, 198 F.3d 246 (6th Cir. 1999) (applying Fed. R. Evid. 403 balancing test to expert testimony); Flanagan v. Altria Grp., Inc., 423 F. Supp. 2d 697, 699 (E.D. Mich. 2005) (“Even if the Court finds the evidence reliable and relevant, it must also determine whether its probative value is outweighed by its prejudicial effect.”). III. THE WITNESSES ARE NOT QUALIFIED TO AS TO THE EXPERT TESTIMONY PROFERRED, THEIR OPINIONS ARE NOT BASED UPON SOUND OR RELIABLE METHODOLOGY, THEIR OPINIONS ARE NOT RELEVANT TO THE ISSUES BEING DECIDED BY THE COURT, AND THIS TESTIMONY WILL BE CONFUSING AND WILL WASTE THE COURT’S TIME. A. Joseph Price 1. Dr. Price is Not Qualified to Offer an Expert Opinion in this Case The State Defendants seek to offer the purported expert testimony of Dr. Joseph Price. Dr. Price seeks to testify as an expert that “children have better

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outcomes when raised by a father and a mother compared to being raised by two parents of the same gender.” Price Rep., ¶1. However, Dr. Price does not have the experience or education necessary to make a determination on what type of family structure is “ideal” for child outcomes. He was trained as an economist and received his Ph.D. in Economics in 2007. He is currently employed as an Associate Professor of Economics at Brigham Young University. Dr. Price has no training whatsoever, nor does he claim to have any expertise in the fields of psychology, sociology or social work. Price Dep. at 6:17-25. Dr. Price has published a number of articles on a wide variety of topics ranging from the racial politics of the National Basketball Association, to the effects of pornography on the actively religious, to the psychology of fruit and vegetable consumption. Expert Report of Dr. Joseph Price, Publications. However, he has actually written very little on the issues raised in this case: same sex parenting, adoption by same sex parents, child outcomes or child adjustment. Dr. Price has never been qualified as an expert in any court of law. Price Dep., 135-138. Sometime between 2010 and 2011, Dr. Price met Douglas Allen (see discussion infra) for the first time at a conference hosted by opponents of same sex marriage. Price Dep. at 143:1-5. Dr. Price had never engaged in any work as an academic in the area of parenting by gays, lesbians or same-sex couples or in work pertaining to the outcomes of children reared in these types of family structures

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prior to attending that conference. Price would later co-author an article on gay and lesbian parenting with Allen. Price Dep. at 146:2-147:7; See Allen, et al., “Nontraditional Families and Childhood Progress Through School: A Comment on Rosenfeld.” 50 Demography 955 (2012). As of the filing of this motion, Dr. Price has published only one article (the aforementioned) on any issue related to child outcomes in same-sex households. This publication has three authors in total (Price is listed third) and does not involve an original research question, but rather it is a comment on another expert’s demographic study. Dr. Rosenfeld responded thereafter to the Allen-Price article, that “after family socioeconomic status is taken into account . . . [t]here is no statistically significant difference in making normal progress through school between children raised by same-sex couples and children raised by heterosexual married couples.” M. J. Rosenfeld, Reply to Allen et al., 50 Demography 963, 968 (2013). Further, even apart from his very limited written work, Dr. Price’s research has not focused on the general subject of child adjustment, or same-sex parenting. Rather, he claims an expertise in research involving “the use of large datasets”. Price Rep. ¶ 4. In his career, Dr. Price has only ever reviewed four other studies related to the topic for which he is proffered as an expert. He has no independent knowledge of any additional studies other than the literature provided by his fellow defense witnesses. Price Dep. at 47-52.

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Based upon the foregoing, Dr. Price has little or no actual experience in the field in which the State Defendants proffer him as an expert – the child outcomes for the children of same sex parents. Further, the possession of a doctorate degree in economics is insufficient to gain expert status, because “no matter how good experts’ credentials may be, they are not permitted to speculate.” Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 671 (6th Cir. 2011) (quoting Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000)) (internal citations omitted). “T]he ipse dixit of the expert alone is not sufficient to permit the admission of an opinion.” Id. at 670.1 This principle is especially apt as relates to Dr. Price. 2. Dr. Price’s Report, Opinions, and Testimony Have No Relevance to this Litigation.

Dr. Price’s testimony, opinions and report are not relevant because he concedes that he cannot offer any expert testimony or opinions on the most salient issues of the case in which he has been submitted as an expert. Dr. Price acknowledges that he can offer neither a layperson nor expert opinion on whether

The term ipse dixit refers to a credentialed individual’s baseless opinion. Translated literally it means “He himself said it”, or, “it is so because he says it is so.” Black’s Law Dictionary defines ipse dixit as “a bare assertion resting [only] on the authority of an individual.”


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data on child outcomes is relevant to the questions surrounding same-sex marriage or second-party adoption for same-sex couples. Price Dep. at 139:9-141:9. 3. Dr. Price’s Report, Opinions, and Testimony are Unreliable

Dr. Price’s expert opinions are unreliable. The bulk of his opinions are made up of his own unqualified economist’s out-of-context quotations of other scholars. See Buck v. Ford Motor Co., 810 F. Supp. 2d 815, 844 (6th Cir. 2011) (an expert “must make some findings and not merely regurgitate another expert’s opinions”). Dr. Price was the third author on a study that re-tools the data set from Dr. Michael Rosenfeld’s study (2010) (Plaintiffs’ expert), originating in the U.S. Census. However, the Allen/Price re-tooling of Rosenfeld’s data is highly unreliable, and “included adopted children, stepchildren, and foster children in their models,” which had “a strong effect on their results”. Many of the trial experts in this case will testify that these family structures have been associated with poorer child outcomes regardless of whether parents are homosexual or heterosexual. M. J. Rosenfeld, Reply to Allen et al., 50 Demography 963, 966-67 (2013).2 As to this methodological flaw, the Sixth Circuit has held that the failure

Plaintiffs’ psychological expert, David Brodzinsky, will explain that children born into intact same sex families, for example, by artificial reproductive technology, fare just as well as State Defendants’ “ideal” family structure (married, intact, biological mother-father families).


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to consider other possible causes constitutes a “red flag” when a district court is evaluating the reliability and admissibility of expert evidence. Further, Dr. Rosenfeld explains that Allen and Price “doubled the sample size of the analysis by including the children whose family arrangements during most of elementary school is unknown . . . along with the children who have five years of stability with their current family.” Id. at 966. Rosenfeld explains that the Allen/Price hypothesis -- that the larger sample size per se leads to greater precision – is incorrect. “Larger sample size . . . increases precision only if the additional cases measure the phenomenon whose measurement is sought.” Id. As a result, according to Rosenfeld “the additional cases [added in by Allen and Price] make the measurement less precise, rather than more precise.” Id. B. Douglas Allen 1. Dr. Allen is Not Qualified to be an Expert Witness as to Issues Proffered. The State Defendants proffer Dr. Douglas Allen, an economist, to “comment on the social science empirical evidence for the claim that children in same-sex parented families experience no difference in outcome measures compared to similar children in opposite sex parented families.” Allen Rep, ¶1. According to Allen, his amorphous expertise entails “work[ing] in the area of the family since 1986.” Allen Rep, ¶ 5. However, Allen himself acknowledges an “inability to specialize by topic ([having] written on marriage, divorce, sex, farming,

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homesteading, the military, the church, dueling, gold mining, legal regulations, etc.) . . .” Douglas W. Allen, Research Stuff, http://www.sfu.ca/~allen/ research.html (last visited Jan. 28, 2014). He admits that he has produced only two papers that “are empirical estimates of child outcomes.” Allen Rep. ¶ 5. Allen opines from his review “of the child outcome literature from 1995-2013 that pertains to same-sex households” that “the entire literature . . . amounts to little that can or should be used outside of academic circles.” Allen Rep. ¶¶ 9, 18. However, he is neither a sociologist nor a psychologist nor a social worker; he has never taught or taken a course in sociology; and he is not an expert in child development. Allen Deposition, pp 33-35. Moreover, his opinion is refuted by a broad-based consensus across the science and social science spectrum (actual experts in the pertinent field), including the American Sociological Association, the Organization of American Historians, the American Psychological Association, the American Medical Association, the American Academy of Pediatrics, the American Psychiatric Association, and the American Psychoanalytic Association -- all of whom have concluded that “there is no scientific basis for concluding that gay and lesbian parents are any less fit or capable than heterosexual parents, or that their children area any less psychological healthy and well-adjusted.” Amicus Br. for the American Psychological Association et al., Hollingsworth v. Perry, at 22, appended to Plaintiffs’ Cross Motion for Summary Judgment.

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Further, Allen is biased. He believes that homosexuality is a sin and that the consequence of this sin is “eternal separation from God” “[i]n other words, going to hell”, Allen Deposition, p 13. As to this factor, the Sixth Circuit has found that bias and subjectivity is a “red flag” when evaluating reliability. Newell, supra. 2. Dr. Allen’s opinions are not reliable. Allen’s opinion -- that the social science research on how children fare when raised by same-sex couples is “preliminary” and in its “infancy”, Report ¶¶18, 67; Allen Deposition, pp 45-46 -- is belied by both the overwhelming consensus among social science professionals based upon nearly 100 peer reviewed articles and studies spanning the past 30 years. His opinions are further unreliable for the reason that, with respect to his critique of Professor Rosenfeld’s work, he relies, in part, not on actual data but on admittedly “stylized” (Allen Rep. ¶24), “metaphoric[al]” (Allen Dep, pp 79-80) figures. Allen’s figures are not merely “stylized” or “metaphorical”, however, they are seriously misleading, as they do not reflect actual data. In addition, the data relied upon by Allen in his Canadian census study is unreliable for the reason that it does not measure what it purports to be measuring, that is, it does not measure the incidence of children raised in samesex households who fail timely to graduate from high school. C. The Witnesses’ Testimony would Waste Time and Create Confusion and is Inadmissible Under FRE 403.

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For all the reasons discussed above, the Allen and Price testimonies would not be helpful to the Court’s consideration of the issues in this case, this testimony would waste time, and create needless confusion under FRE 403. CONCLUSION For the reasons set forth above, Plaintiffs request that the Court rule that Mr. Girgis’s testimony is inadmissible at trial. In the alternative, should the Court decide to hear the testimony of these experts, Plaintiffs ask that it be stricken thereafter, or that the Court accord such testimony little or no weight. Respectfully submitted, s/Carole M. Stanyar CAROLE M. STANYAR P34830 221 N. Main Street, Suite 300 Ann Arbor, MI 48103 (313) 819-3953 cstanyar@wowway.com Dated: February 5, 2014 s/ Dana Nessel DANA M. NESSEL P51346 645 Griswold Street, Suite 4300 Detroit, MI 48226 (313) 556-2300 dananessel@hotmail.com Attorneys for Plaintiffs

Of counsel: s/Robert A. Sedler ROBERT A. SEDLER P31003 Wayne State University Law School 471 W. Palmer Street Detroit, MI 48202 (313) 577-3968 rsedler@wayne.edu s/ Kenneth M. Mogill Kenneth M. Mogill P17865 MOGILL, POSNER & COHEN 27 E Flint Street, 2nd Floor Lake Orion, MI 48362 (248) 814-9470 kmogill@bignet.net


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