Michigan Defendents Brief to Keep Regnerus as an Expert

8/12/2019 Michigan Defendents Brief to Keep Regnerus as an Expert

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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-10285HON. BERNARD A.

FRIEDMAN

MAG. MICHAEL J.

HLUCHANIUK

STATE DEFENDANTS

RESPONSE INOPPOSITION 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

[email protected]

Carole M. Stanyar (P34830)

Attorney for Plaintiffs

221 N. Main St., Ste. 300

Ann Arbor, MI 48104

(313) 819-3953

[email protected]

2:12-cv-10285-BAF-MJH Doc # 135 Filed 02/14/14 Pg 1 of 19 Pg ID 2784


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Kristin M. Heyse (P64353)

Joseph E. Potchen (P49501)

Michelle M. Brya (P66861)

Tonya C. Jeter (P55352)

Attorneys for State DefendantsMich. Dept of Attorney General

Health, Education & Family

Services Division

P.O. Box 30758

Lansing, MI 48909

(517) 373-7700; Fax (517) 351-1152

[email protected]

[email protected]

[email protected]@michigan.gov

Andrea J. Johnson (P74596)

Michael L. Pitt (P24429)

Beth M. Rivers (P33614)

Attorneys for Defendant Lisa

BrownPitt McGehee Palmer Rivers

& Golden, P.C.

117 W. Fourth St., Ste. 200

Royal Oak, MI 48067

(248) 398-9800

[email protected]

[email protected]

[email protected]

/

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


Services Division

P.O. Box 30758

Lansing, MI 48909

(517) 373-7700P64353

Dated: February 14, 2014

mailto:[email protected]:[email protected]:[email protected]


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TABLE OF CONTENTS

Page

Table of Contents ....................................................................................... iIndex of Authorities ................................................................................... iiControlling or Most Appropriate Authority ............................................. ivIntroduction ............................................................................................... 1

Argument ................................................................................................... 2I. Dr. Mark Regneruss opinions and testimony are relevant,

reliable, and requisiteall of Plaintiffs challenges toDr. Regnerus go to weight, not admissibility. ................................. 2

A. Dr. Regneruss opinions and testimony are relevant. ............ 6B. Dr. Regneruss opinions and testimony are reliable. ............. 7C. Dr. Regneruss opinions and testimony are requisite. ......... 10

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

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INDEX OF AUTHORITIES

Page

CasesColeman 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) ................................................................................ 8In 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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RulesFed. 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 underDaubertv.

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) (referencingDaubert,

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) (citingDaubert, 509 U.S. at 595). The experts

conclusions need not be unimpeachable to be admissible. Id.at 765.

The admissibility inquiry thus focuses onprinciplesand methodology,

not on the conclusionsgenerated 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 Limineto 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 cross-

examination, 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 Limineto

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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

Limineto Exclude Testimony of Mark Regnerus, Doc. #116 at 13-16.)

The notion of general acceptance is one of numerous factors to be

considered in aDaubertinquiry, 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

Daubertwas 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, Daubertneither

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

1Plaintiffs 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 Limineto Exclude Testimony of Dr. Mark Regnerus.

Respectfully submitted,

Bill Schuette

Attorney General

/s/ Kristin M. Heyse

Kristin M. Heyse




Services Division

P.O. Box 30758

Lansing, MI 48909

(517) 373-7700

Dated: February 14, 2014 (P64353)

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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.

/s/ Kristin M. Heyse

Kristin M. Heyse




Services Division

P.O. Box 30758

Lansing, MI 48909

(517) 373-7700

Dated: February 14, 2014 (P64353)

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Documents

Michigan Defendents Brief to Keep Regnerus as an Expert