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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 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. E.D.Mich. No. 12-10285 Hon. Bernard A. Friedman

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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 Courts 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 CAROLE M. STANYAR P34830 221 N. Main Street, Suite 300 Ann Arbor, MI 48103 (313) 819-3953 cstanyar@wowway.com s/ Dana Nessel DANA M. NESSEL P51346 645 Griswold Street, Suite 4300 Detroit, MI 48226 (313) 556-2300 dananessel@hotmail.com
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Dated: February 5, 2014

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

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 Girgiss 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. Appx 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 Laypersons Common Knowledge

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An experts 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 experts 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 Regneruss 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 experts reasoning or methodology and the facts at issue before the Court. Id. at 591-93. The necessary connection between the experts methodology and ultimate conclusion may no t 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 Courts 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, Girgiss 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 experts testimony must also be reliabl e. Reliability of an experts conclusions is based on the experts 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 experts 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. 12144 and 12-307, pp 1-2 (referring to his and co-amicis 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 Committees Note. In order to be reliable, an experts conclusions must be based on the experts 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 Girgiss 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 experts 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). Girgiss 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 Girgiss 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
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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, Girgiss 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. Appx 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 Courts 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. Girgiss opinion, because it is essentially a lay opinion, is not genuinely probative of any of the above four justifications.
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Finally, Girgiss testimony should be excluded under FRE 403. Because this is essentially a non-peer reviewed, unqualified lay opinion, Girgiss 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. Girgiss testimony is inadmissible at trial or 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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