Michigan Brief To Reject Sherif Girgis as an Expert Witness

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

APRIL DEBOER, et al.,

Plaintiffs,

-vs- E.D.Mich. No. 12-10285

Hon. Bernard A. Friedman

RICHARD SNYDER, et al.,

Defendants.

__________________________/

PLAINTIFFS’ DAUBERT MOTION TO PRECLUDE TESTIMONY

OF STATE DEFENDANTS’ PROPOSED EXPERT SHERIF GIRGIS

NOW COME THE PLAINTIFFS, April DeBoer and Jayne Rowse, et al.

by and through their attorneys, and move this Court, pursuant to Rules 104, 403,

and 702 of the Federal Rules of Evidence, and pursuant to the standards set forth in

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and its progeny, for an

order precluding the testimony of the State Defendants’ proposed expert Sherif

Girgis (or striking it after its presentation) based upon the following reasons.

1. State Defendants have advised that they will offer the testimony of Mr.

Girgis to support their claim that there is a rational basis for the two Michigan laws

challenged herein: the same-sex marriage ban and the ban on second parent

adoptions.

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2. This Court has indicated that it will entertain any motions made pursuant

to the Daubert decision, to preclude proposed expert testimony, simultaneous with

its consideration of the trial evidence in this case.

3. For the reasons set forth in the attached memorandum of law, this

witness clearly is not qualified to offer the proposed testimony offered.

4. In addition, the testimony of the witness is irrelevant to the questions

before this Court, the testimony is not based upon a reliable or discernible

methodology, and the testimony is otherwise unreliable.

5. In addition, the aforementioned testimony should not be admitted because

it lacks probative value, it will waste the Court’s time and it will create confusion.

WHEREFORE, based upon the foregoing reasons and based upon the facts

and argument set forth in the attached memorandum of law, Plaintiffs move this

Court, pursuant to Rules 104, 403, and 702 of the Federal Rules of Evidence, and

pursuant to the standards set forth in Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579 (1993) and its progeny, for an order precluding the testimony of the State

Defendants’ proposed expert Sherif Girgis.

Respectfully submitted,

s/Carole M. Stanyar s/ Dana Nessel

CAROLE M. STANYAR P34830 DANA M. NESSEL P51346

221 N. Main Street, Suite 300 645 Griswold Street, Suite 4300

Ann Arbor, MI 48103 Detroit, MI 48226

(313) 819-3953 (313) 556-2300

[email protected] [email protected]


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Dated: February 5, 2014 Attorneys for Plaintiffs

Of counsel:

s/Robert A. Sedler s/ Kenneth M. Mogill

ROBERT A. SEDLER P31003 Kenneth M. Mogill P17865

Wayne State University Law School MOGILL, POSNER & COHEN

471 W. Palmer Street 27 E Flint Street, 2nd Floor

Detroit, MI 48202 Lake Orion, MI 48362

(313) 577-3968 (248) 814-9470


BRIEF IN SUPPORT OF PLAINTIFFS’ DAUBERT

MOTION TO PRECLUDE TESTIMONY OF STATE

DEFENDANTS’ PROPOSED EXPERT SHERIF GIRGIS

I. INTRODUCTION

Sherif Girgis, the State Defendants’ purported expert, fails to meet the

minimum requirements imposed by the Federal Rules of Evidence. He is not

qualified to testify as an expert. His flawed methodology and generic conclusions

render his opinion 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 Girgis’s

testimony in advance of trial. However, if the Court permits Girgis to testify,

Plaintiffs ask the Court to exclude his testimony from evidence or accord it little to

no weight.


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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.

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


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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

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, Defendants bear the burden of

establishing by a preponderance of the evidence that Regnerus’s 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


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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

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 unintended 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, Girgis’s testimony, opinion, and reports must evince


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“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

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;


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[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

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.

MR. GIRGIS IS NOT QUALIFIED TO OFFER EXPERT TESTIMONY,

HIS OPINIONS ARE NOT BASED UPON ANY RECOGNIZED

METHODOLOGY, AND HIS OPINIONS ARE NOT RELEVANT TO THE

ISSUES BEING DECIDED BY THE COURT


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Mr. Girgis seeks to offer testimony on his own personal philosophical theory

of marriage. His theory rests on a conjugal view of marriage, namely that marriage

is a bodily, emotional, and spiritual bond that is ordered to procreation and family

life. His personal view as to marriage does not even purport to express what

marriage is as a matter of law.

Girgis is clearly not qualified to testify as an expert witness under FRE 702

or Daubert. He has never been qualified as an expert witness in a case (Girgis

Dep, p 6). He is currently a law student at Yale University and graduate student in

the philosophy department at Princeton University (Id.). He is neither a member of

the bar of any state nor eligible to be a member of the bar of any state (Id. 7). As he

candidly admitted during his deposition, as a student, someone else still grades his

papers (Id.). While he has written about his personal views on marriage, none of

his writings have been peer reviewed (Id. 7-8). He is not an historian, a sociologist

or a psychologist (Id. 9), nor is he an expert on Michigan law regarding marriage

(Id. 36). Other than reading the Amended Complaint in this case, he has not

reviewed Michigan law regarding marriage, nor has he taken a course in family

law (Id. 36-37).

With respect to the actual subject matter of Mr. Girgis’ proposed testimony,

it is admittedly his personal, philosophical opinion as to the nature of marriage. (Id.

22, 37). See also Amicus Brief of Robert P. George, Sherif Girgis and Ryan T.


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Anderson in Support of Hollingsworth et al., Hollingsworth v Perry, S Ct Nos. 12-

144 and 12-307, pp 1-2 (referring to his and co-amici’s views as “their philosophic

defense of marriage as a conjugal union”). His opinions and conclusions are not

the product of reliable principles or methodology, nor are they based on "scientific,

technical, or other specialized knowledge" that would assist this court as the trier

of fact; they are simply his opinions.

On the contrary, his conclusions about the supremacy of the conjugal view of

marriage is a subjective theory that “cannot be assessed for reliability.” FRE 702,

Advisory Committee’s Note. In order to be reliable, an expert’s conclusions must

be based on the expert’s knowledge or experience in his or her discipline, rather than

on substantive belief or unsupported speculation. See, e.g., Kuhmo Tire, 526 U.S. at

148; Daubert, 509 U.S. at 589-590

As noted above, none of his writings have been peer reviewed. Both the

Supreme Court and the Sixth Circuit have held that the requirement of peer review

serves an important function, and assists the Court with its all-important

“gatekeeping” role, keeping “sham”, novel, or untested theories from “creep[ing]

into the courtroom.” Daubert, 509 U.S. at 593. Greenwell, 184 F.3d at 501.

Moreover, the fact that Girgis’s opinions seem to fall within the field of

philosophy do not save it from exacting Daubert scrutiny.

While the relevant factors for determining reliability will vary from

expertise to expertise, the amendment [to FRE 702 embracing the


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holding of Daubert] rejects the premise that an expert’s testimony

should be treated more permissively simply because it is outside the

realm of science. An opinion from an expert who is not a scientist

should receive the same degree of scrutiny for reliability as an expert

who purports to be a scientist.

Advisory Committee Notes regarding the 2000 Amendments to FRE 702 (citations

omitted).

Girgis’s testimony also raises a red flag because Girgis himself has

acknowledged that opinions like his, opposing same sex marriage, were honed

precisely for presentation to the Supreme Court. See Sherif Girgis, et al., The

Supreme Court, You and Me, and the Future of Marriage, Witherspoon Institute:

Public Discourse (June 27, 2013), http://www.thepublicdiscourse.com/2013/06/

10455. In this article, Girgis and his co-authors conclude by encouraging the

continuing debate over the definition of marriage to proceed so that the Supreme

Court will delay defining marriage in the same sex marriage cases pending further

public debate. See Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434 -

435 (6th Cir. 2007) (expert theory raises “red flag” where it is generated

intentionally for litigation).

To the extent that Girgis’s theories are themselves based upon other “fringe”

social science “researchers” (also slated for presentation by the State Defendants

and also subject to pending FRE 702/Daubert challenges) -- that a child needs to

be raised by his or her own biological mother and father in an intact marriage in


http://www.thepublic/

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order to be physically and psychologically healthy – that claim will be

resoundingly refuted by Plaintiffs’ legitimate experts, all of whom are nationally

and/or world renowned experts in the fields of psychology, sociology and

demography as to the precise issues presented in this case.

Further, Girgis’s personal opinions about marriage are largely irrelevant to

the issues presented in this litigation. To be admissible, an expert opinion must be

“sufficiently tied to the facts of the case that it will aid the [trier of fact] in

resolving a factual dispute.” Daubert, 509 U.S. at 591; see U.S. 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.”). 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 unintended 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. Girgis’s opinion,

because it is essentially a “lay” opinion, is not genuinely probative of any of the

above four justifications.


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Finally, Girgis’s testimony should be excluded under FRE 403. Because

this is essentially a non-peer reviewed, unqualified lay opinion, Girgis’s testimony

and conclusions would provide no benefit to the Court, and indeed, are likely to

waste time and confuse the issues in the case.

CONCLUSION

For the reasons set forth above, Plaintiffs request that the Court rule that Mr.

Girgis’s testimony is inadmissible at trial or accord such testimony little or no

weight.

Respectfully submitted,

s/Carole M. Stanyar s/ Dana Nessel

CAROLE M. STANYAR P34830 DANA M. NESSEL P51346

221 N. Main Street, Suite 300 645 Griswold Street, Suite 4300

Ann Arbor, MI 48103 Detroit, MI 48226

(313) 819-3953 (313) 556-2300


Dated: February 5, 2014 Attorneys for Plaintiffs

Of counsel:

s/Robert A. Sedler s/ Kenneth M. Mogill

ROBERT A. SEDLER P31003 Kenneth M. Mogill P17865

Wayne State University Law School MOGILL, POSNER & COHEN

471 W. Palmer Street 27 E Flint Street, 2nd Floor

Detroit, MI 48202 Lake Orion, MI 48362

(313) 577-3968 (248) 814-9470



2:12-cv-10285-BAF-MJH Doc # 117-1 Filed 02/05/14 Pg 1 of 6 Pg ID 2466

Michigan Brief To Reject Sherif Girgis as an Expert Witness

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