melendres motion to exclude unconscious bias

8/2/2019 Melendres Motion to Exclude Unconscious Bias

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28CHMITT SCHNECK SMYTH

CASEY & EVEN, P.C.

Professional

Corporation

Timothy J. Casey (#013492)James L. Williams (#026402)SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C.1221 East Osborn Road, Suite 105Phoenix, AZ 85014-5540Telephone: (602) 277-7000Facsimile: (602) [email protected] for Defendants Joseph M. Arpaio andthe Maricopa County Sheriffs Office

Thomas P. Liddy (#019384)MARICOPA COUNTY ATTORNEYS OFFICECivil Services Division222 N. Central, Suite 1100Phoenix, Arizona 85004602-506-8066Co-counsel for Defendants Joseph M. Arpaio andthe Maricopa County Sheriffs Office

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres, et al.,

Plaintiffs,vs.

Joseph M. Arpaio, et al.,

Defendants.

No. CV 07-02513-PHX-GMS

DEFENDANTS MOTION IN LIMINENO. 2: EXPERT TESTIMONYREGARDING SUBCONSCIOUS /UNCONSCIOUS BIAS OR

SUBJECTIVE THOUGHT ORMOTIVATION

Pursuant to Rules 701 through 705 of the Federal Rules of Evidence, Defendants

move for entry of an order in limine precluding Plaintiffs from offering expert testimony or

opinion as to: (a) purported subconscious bias theory in law enforcement officers; and (2)

the alleged subconscious /unconscious bias or subjective thoughts or motivation on the part

of any of the Defendants or their officers or employees. Defendants make this Motion

because Plaintiffs expert Robert Stewart rendered opinions in his written reports and in his

deposition that most officers that target a racial group for disproportionate law enforcement

activities do so implicitly or unconsciously without even being aware of it and that some

proportion of [MCSO] officers are probably acting on biases, whether they are conscious

Case 2:07-cv-02513-GMS Document 511 Filed 03/02/12 Page 1 of 5


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CASEY & EVEN, P.C.

Professional

Corporation2

or unconscious. See Testimony Chart and Deposition of Robert Stewart at p. 41:25 to p.

42:23; p. 48:8-13, attached as Exhibit 1. Mr. Stewart, however, has no opinion as to whether

Sheriff Arpaio or any MCSO employee involved in the traffic stops of the named Plaintiffs

have such unconscious bias. See Testimony Chart and Deposition of Robert Stewart at pp.

48:14-25, 49;1-12; 67:4-6; 69:11-13, 69:22-24; 74:1-24, 75:1-6, 88:14-16, 99:3-6, 101:5-8,

104:19-25, 105:1-2, and 110:18-23, attached as Exhibit 2. Mr. Stewarts opinions are

irrelevant, lack foundation, speculative, unreliable, and unfairly prejudicial.

Expert testimony is only admissible if it is sufficiently reliable and helpful. Daubert

v. Merrell Dow Pharms., 509 U.S. 579, 593 (1993) (identifying factors for admissibility);

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (district court must determine that

testimony is sufficiently reliable based upon Daubertfactors);Ellis v. Costco Wholesale

Corp., 657 F.3d 970, 982 (9th Cir. 2011) (district court must exclude junk science that does

not meet Federal Rule of Evidence 702's reliability standards by making a preliminary

determination that the expert's testimony is reliable).

An experts opinion as to another persons unexpressed thoughts, motivation, or state

of mind at a particular time is inadmissible because such testimony is unhelpful, constitutes

an undue waste of time, is speculative, invades the province of the finder of fact, and fails to

comply with the specialized knowledge and reliability requirements of Rule 702 of the

Federal Rules of Evidence. In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 547

(S.D.N.Y. 2004) (Inferences about the intent or motive of parties or others lie outside the

bounds of expert testimony); see alsoIn re Diet Drugs Prods. Liab. Litig., MDL No. 1203,

2000 U.S. Dist. LEXIS 9037 (E.D. Pa. June, 20, 2000);Robinson v. Hartzell Propeller, Inc.,

326 F. Supp. 2d 631, 647 (E.D. Pa. 2004); Safeway, Inc. v. Sugarloaf P'ship, LLC, 423 F.

Supp. 2d 531, 538 (D. Md. 2006) (To the extent his report speaks to the intent of the parties,

it is unhelpful because Mr. Halper was not present and has no personal knowledge of the

parties intent.); Gallatin Fuels, Inc. v. Westchester Fire Ins. Co., 410 F. Supp. 2d 417, 423

(W.D. Pa. 2006) (expert may not testify as to another persons thoughts or subjective intent);



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CASEY & EVEN, P.C.

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Steadfast Ins. Co. v. Auto Mktg. Network, Inc., 2004 U.S. Dist. LEXIS 6938, at *20-22 (N.D.

Ill. Jan. 26, 2004) (same); Holman Enters. v. Fid. & Guar. Ins. Co., 563 F. Supp. 2d 467,

472, 473 (D.N.J. 2008) (expert opinion formed in part upon his perception of [a persons]

subjective intent was speculative and did not meet the fit requirement under Rule 702 of

the Federal Rules of Evidence, referring to connection between the scientific research or

test result to be presented and particular disputed factual issues in the case); Tilton v.

Capital Cities/ABC, 938 F. Supp. 751, 753 (N.D. Okla. 1995) (expert opinion as to the

subjective state of mind of Defendants in making [] broadcasts of which the expert has no

personal knowledge does not shed[] any light on the mental state of the defendants and

fails to present an issue where special skills or knowledge are needed to understand the

facts and draw a conclusion from them).

The Supreme Court recently held that an experts testimony as to

subconscious/culture bias can be safely disregarded and does nothing to advance [the

plaintiffs] case and, accordingly, was worlds away from constituting significant proof

of the existence of a discriminatory policy because the expert could not establish what

percentage of the employment decisions made by Defendant were infected with the alleged

stereotyped thinking upon which the expert opined. Wal-Mart Stores, Inc. v. Dukes, 131

S. Ct. 2541, 2553 (2011). In fact, inDukes,the experts conclusions elicited criticism

from the very scholars on whose conclusions he relies for his social-framework analysis.

Id. at 2554 n.8.

DATED this 2nd

day of March, 2012.

SCHMITT SCHNECK SMYTH CASEY & EVEN,

P.C.

/S/Timothy J. Casey ______Timothy J. CaseyJames L. Williams1221 E. Osborn Rd., Suite 105Phoenix, Arizona 85014Telephone: (602) 277-7000Facsimile:(602) 277-8663Counsel for Defendants Joseph M. Arpaio and theMaricopa County Sheriffs Office



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CASEY & EVEN, P.C.

Professional

Corporation4

CERTIFICATE OF SERVICE

I hereby certify that on March 2, 2012, I electronically transmitted the attacheddocument to the Clerks Office using the CM/ECF System for filing and transmittal of aNotice of Electronic Filing to the following CM/ECF registrants:

The Honorable G. Murray SnowUnited States District Court401 West Washington Street,Phoenix, Arizona 85003-2158

Stanley Young, Esq.Andrew Carl Byrnes, Esq.COVINGTON & BURLING, LLP333 Twin Dolphin RoadRedwood Shores, California 94065Counsel for Plaintiffs

Daniel Pochoda, Esq.

Annie Lai, Esq.ACLU FOUNDATION OF ARIZONA3707 N. 7

thStreet, Suite 235

Phoenix, Arizona 85014Counsel for Plaintiffs

Cecillia WangAMERICAN CIVIL LIBERTIES UNION FOUNDATIONIMMIGRANTS RIGHTS PROJECT39 Drumm StreetSan Francisco, California 94111Counsel for Plaintiffs

Andre Segura, Esq.AMERICAN CIVIL LIBERTIES UNION FOUNDATIONIMMIGRANTS RIGHTS PROJECT125 Broad Street, 18

thFloor

New York, NY 10004Counsel for Plaintiffs

Nancy Ramirez, Esq.MEXICAN AMERICAN LEGAL DEFENSEAND EDUCATION FUND634 S. Spring Street, 11

thFloor

Los Angeles, California 90014Counsel for Plaintiffs

Thomas P. LiddyDeputy County Attorneys, Civil Services DivisionMaricopa County Attorneys Office222 N. Central, Suite 1100Phoenix, Arizona 85004Co-counsel for Defendants Joseph M. Arpaio andthe Maricopa County Sheriffs Office



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CASEY & EVEN, P.C.

Professional

Corporation5

_/S/Eileen Henry _____Eileen Henry, ParalegalSCHMITT SCHNECK SMYTH CASEY & EVEN, P.C.


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