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Case 2:16-cv-00318-DN Document 44 Filed 01/27/17 Page 1 of 10

PARKER DOUGLAS (8924)


Chief Federal Deputy
DAVID N. WOLF (6688)
GREG SODERBERG (14016)
Assistant Utah Attorneys General
OFFICE OF THE UTAH ATTORNEY GENERAL
350 North State Street, Ste. 230
P.O. Box 142320
Salt Lake City, Utah 84114-2320
Telephone: (801) 538-9600
Facsimile: (801) 538-1121
E-mail: pdouglas@utah.gov
E-mail: dnwolf@utah.gov
E-mail: gmsoderberg@utah.gov
Counsel for Defendants
IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

CINEMA PUB, L.L.C., d/b/a BREWVIES,


Plaintiff,

DEFENDANTS MOTION TO EXCLUDE


EXPERT OPINIONS AND SUPPORTING
MEMORANDUM

v.
SALVADOR D. PETILOS, Director; CADE
MEIER, Deputy Director; NINA
MCDERMOTT, Director of Compliance,
Licensing Enforcement, Utah Department of
Alcoholic Beverage Control, in their official
capacities; JOHN T. NIELSEN, Chairman;
JEFFREY WRIGHT; KATHLEEN
MCCONKIE COLLINWOOD; OLIVIA
VELA AGRAZ; STEVEN B. BATEMAN; S.
NEAL BERUBE; AMANDA SMITH,
Members, Utah Alcoholic Beverage Control
Commission, in their official capacities,
Defendants.

Case No. 2:16-cv-00318-DN


Judge David Nuffer

Case 2:16-cv-00318-DN Document 44 Filed 01/27/17 Page 2 of 10

MOTION
Defendants, through counsel and pursuant to Federal Rule of Civil Procedure 7, Federal
Rule of Evidence 702, and District of Utah Local Rule 7-1, submit this Motion to Exclude Expert
Opinions and Supporting Memorandum. Defendants ask the Court to exclude Dr. Kyle Bishops
Report and opinions, because Dr. Bishop is not qualified to opine regarding negative secondary
effects, and because Dr. Bishops opinion that Deadpool is not obscene and not pornography are
not necessary.
Defendants also ask the Court to exclude Bruce Parkers Report and opinions. Mr. Parker
is not qualified to opine regarding secondary effects, and his testimony is not based on sufficient
facts or data.
Finally, Defendants ask the Court to exclude Dr. Linzs Supplemental Report, filed on
the final day of expert discovery, because it attempts to introduce new content and opinions
which were not stated in Dr. Linzs Report or Rebuttal Report.

MEMORANDUM
Legal Standard
The admission of expert testimony is governed by both Federal Rule of Evidence 702 and
the Supreme Courts interpretation of that rules originally set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).1 The trial judge has a gatekeeping obligation to
determine the admissibility of expert testimony.2 Specifically, Rule 702 imposes a special

North American Specialty Ins. Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106, 1112 (10th
Cir. 2009).
2
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (citing Daubert, 509 U.S. 579).
2

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obligation upon a trial judge to ensure that all expert testimony, even non-scientific and
experience-based expert testimony is both relevant and reliable.3
Under Rule 702, the Court must determine whether the proffered expert is qualified by
knowledge, skill, experience, training, or education to render an opinion.4 If the expert is
sufficiently qualified, the Court must then determine whether the experts opinion is reliable by
assessing the reasoning and methodology underlying the proffered opinion.5 Questions
concerning reliability may relate to the experts assumed facts, methodology, or application of
the methodology to the facts.6 As part of its gatekeeping function, a court should make specific
findings on the record, so that an appellate court may determine whether the district court
carefully and meticulously reviewed the proffered evidence.7
Ultimately, the proponent of the expert testimony bears the burden of establishing by a
preponderance of the evidence that the requirements for admissibility have been met.8
Regarding supplemental reports under Federal Rule of Civil Procedure 26(e), an expert
report may be supplemented in a timely manner if the party learns that in some material respect
the [report] is incomplete or incorrect . . . .9 An expert witnesss written report must contain,
among other things, a complete statement of all opinions the witness will express and the basis
and reasons for them [and] the facts or data considered by the witness in forming them . . . .10

Kumho Tire, 526 U.S. at 147; Daubert, 509 U.S. at 59293.


Fed. R. Evid. 702.
5
Daubert, 509 U.S. at 58990.
6
Fed. R. Evid. 702; Mitchell v. Gencorp, Inc., 165 F.3d 778, 782 (10th Cir. 1999).
7
Adamscheck v. Am. Family Mut. Ins. Co., 818 F.3d 576, 586 (10th Cir. 2016) (citation omitted).
8
See United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc); Ralston v. Smith
& Nephew Richards, Inc., 275 F.3d 965, 970 n.4 (10th Cir. 2001).
9
Fed. R. Civ. P. 26(e).
10
Id. 26(a)(2)(B) (emphasis added).
4

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Requiring complete disclosure in an expert witnesss first report, and not allowing substantive
supplementation on the final day of expert discovery, ensures that the parties are able to evaluate,
during the expert discovery phase of the litigation, the opinions to be offered by the expert.
Allowing supplementation that adds materially to an expert report on the final day of expert
discovery is unfair and contrary to the rules.11
Dr. Kyle Bishop
Dr. Bishop, a professor at Southern Utah University, opines in his Report that the film
Deadpool is not obscene or pornographic, would not directly encourage any of its viewers to
threaten the health, peace, safety, welfare, or morals of the community, whether screened while
consuming alcoholic beverages or not, and that [t]he intended secondary effects of Deadpool
are . . . laughter, entertainment, and social commentary . . . .12
Dr. Bishop is not qualified to opine regarding negative secondary effects, nor is his
opinion regarding secondary effects reliable.13 Dr. Bishop, as an English professor, is not
qualified to opine that viewing Deadpool and consuming alcohol would not lead to negative
secondary effects.14 Dr. Bishop is not a psychologist, criminologist, or statistician. Dr. Bishop
has not identified any tests, experiments, statistics, data or other research that he has conducted,
or upon which he relies, that support his conclusion that watching movies containing explicit

11

See, e.g., E.E.O.C. v. Freeman, 778 F.3d 463, 467 n.7 (4th Cir. 2015) (party cannot use Rule
26(e) as a loophole to revise previous reports); Williams v. TESCO Services, Inc., 719 F.3d
968, 976 (8th Cir. 2013) (supplemental report rejected because it was materially altering, not
merely clarifying his original report); Avila v. Willits Environmental Remediation Trust, 633
F.3d 828, 836 (9th Cir. 2011), cert. denied, 132 S. Ct. 120 (2011) (the new reports were not
merely refinements of previous reports, but were entirely new).
12
Bishop Expert Report pp. 2, 10 doc. 36-1.
13
Fed. R. Evid. 702.
14
Fed. R. Evid. 702.
4

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sexual content while consuming alcohol will not result in increased sexual aggression, increased
sexual risk-taking, or other adverse secondary affects. Accordingly, Dr. Bishop is not qualified
as an expert [in the area of secondary effects] by knowledge, skill, experience, training, or
education . . . to provide an opinion regarding the negative secondary effects that may result
from combining the consumption of alcohol with viewing sexual images.15
Neither is Dr. Bishops analysis of secondary effects reliable. Dr. Bishop describes the
types of sexual imagery depicted, and summarily states that the images are not designed to elicit
violent or transgressive sexual impulses or ideas on the part of the audience.16 Dr. Bishop does
not state any basis for his assumptions, which seem to be based on his personal experiences of
how films and alcohol affect people.17 His opinion is not based on sufficient facts or data, not
the product of reliable principles and methods, and he has not reliably applied the principles
and methods to the facts of the case.18 Accordingly, Dr. Bishops statements and assumptions
that Deadpool could not or does not produce negative secondary effects should be excluded.
Second, Dr. Bishops opinion that Deadpool is not obscene is unnecessary because
Defendants do not argue that the images in Deadpool are obscene19 as that term has been defined
by the courts.20 Neither do Defendants argue that Deadpool is pornography.21 Accordingly, Dr.

15

Id.
Bishop Expert Report p. 9 doc. 36-1.
17
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (A court may conclude that there is simply
too great an analytical gap between the data and the opinion proffered.).
18
Fed. R. Evid. 702.
19
Miller v. California, 413 U.S. 15, 24 (1973) (defining obscenity).
20
Fed. R. Evid. 403 (evidence may be excluded if it is not probative and wastes time).
21
Cass R. Sunstein, Pornography and the First Amendment, 1986 Duke L.J. 589 (1986) (stating
that [d]efining pornography is notoriously difficult); James Lindgren, Defining Pornography,
141 U. Pa. L. Rev. 1153 (1993) (discussing the difficulty of defining pornography).
16

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Bishops opinion that the images in Deadpool are not obscene or pornographic should be
excluded as unnecessary.
Bruce Parker
Bruce Parker opines that Plaintiffs showing of Deadpool while serving alcohol has not
produced negative secondary effects.22 His opinion is based on reports that identify 35 calls for
police service from July to October 2016 in the block where Brewvies is located and that the
property values for Brewvies and nearby properties increased from 2012 to 2016.23
Mr. Parker is a certified planner, an adjunct professor of architecture and planning, and
the principal at a planning consultancy firm.24 While Mr. Parker might be qualified to opine
regarding land use or zoning surrounding Brewvies,25 he is not qualified to opine regarding
negative secondary effects.26 Further, the calls for police service data from July to October 2016
is not relevant or helpful to the Court, because Deadpool was not playing at Brewvies at that
time, nor has Mr. Parker connected that time period to content of movies playing at Brewvies
during that time.
Mr. Parkers lack of experience and knowledge in analyzing secondary effects is evident
from his Report, in which he describes the process he undertook to understand what secondary
effects are and how they are identified. Mr. Parker describes that to understand how secondary
effects are identified, he used Google Scholar and the University of Utahs library to read

22

Parker Exp. Report p. 22 doc. 36-3.


Id. at 12, 22.
24
Id. at 1.
25
Id. pp. 26.
26
Fed. R. Evid. 702.
23

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research and academic literature.27 After reading some studies, Mr. Parker learned that
negative secondary effects are sometimes identified by using crime reports and land and building
value data.28 So Mr. Parker decided to try it out, by pulling data from the Salt Lake Police
Department website regarding calls for police service and data from the Salt Lake County
Assessor website regarding building and land value.29
Mr. Parker is no more qualified than any other professional to render an opinion
regarding secondary effects in a given area, and his Report admits that he had no knowledge of
secondary effects.30 He is not a criminologist, statistician, or psychologist, and his training and
experience as a city or urban planner does not qualify him to opine regarding secondary effects
in a given area.31 Mr. Parkers opinion regarding negative secondary effects should be excluded
because he is not qualified as an expert by knowledge, skill, experience, training, or
education . . . .32
Moreover, the data relied upon by Mr. Parker is not reliable. Regarding police calls for
service, Mr. Parker looked at a short time period between July and October 2016. Not only is that
a small amount of time, it is a time period that occurred after this case was filed.33 An expert
opinion must be based on sufficient facts or data . . . and must be the product of reliable

27

Id. p. 7.
Id.
29
Id. pp. 722.
30
Fed. R. Evid. 702.
31
Fed. R. Evid. 702.
32
Id.
33
Id.
28

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principles and methods . . . not simply looking at police calls for service over an arbitrary fourmonth period.34
Similarly, regarding property values, Mr. Parker testimony is not based on sufficient facts
or data, nor is it the product of reliable principles and methods.35 Mr. Parker provides property
value data between 2012 through 2016, and assumes that, because property values increased,
there are no secondary effects.36 Mr. Parker does not explain how the data may be connected to
what goes on at Brewvies, or what other factors may have contributed to an increase in property
value.37 Mr. Parkers testimony does nothing to assist the Court in understanding how Brewvies
has or has not impacted crime or property value in the area. Mr. Parkers opinion should be
excluded because he is neither qualified to opine regarding secondary effects, nor is the data he
relies upon reliable.
Dr. Linzs Supplemental Report
On December 30, 2016, the final day of expert discovery, Plaintiff filed Dr. Linzs 10page (plus another 10 pages of exhibits) Supplemental Report.38 In the Supplemental Report,
Dr. Linz states that he has reviewed a list of 200-plus films that have been screened at Brewvies,
and segments of many of those films, and seeks to provide more information supporting and
reinforcing [his] earlier opinion . . . regarding a lack of secondary effects.39 Additionally, the

34

Id.
Id.
36
Parker Exp. Report p. 22 doc. 36-3.
37
General Elec. Co. v. Joiner, 522 U.S. at 146 (A court may conclude that there is simply too
great an analytical gap between the data and the opinion proffered.).
38
Linz Supp. Exp. Report doc. 43-1.
39
Id. p. 1.
35

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Supplement Report seeks to add the following opinions: that the statute is vague,40 that
statements made by Dr. George in his Rebuttal Report, regarding Dr. Linzs lack of expertise in
the area of the effects of alcohol, are rebuttable,41 that Dr. Linzs expertise is evident by his
involvement in a case, Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460 (7th Cir. 2009),42
and that Dr. Linz has responded to criticism from the Seventh Circuit regarding multiple
regression analysis by incorporating it in a number of studies he conducted.43
Dr. Linzs Supplemental Report should be excluded because it revises previous reports,
materially alters his opinions, and offers entirely new opinions or information.44 The
Supplemental Report does not comply with Federal Rule of Civil Procedure 26(e), which allows
supplementation only when a disclosure is incomplete or incorrect, not a back door for a party
to submit an additional rebuttal report. Accordingly, Defendants ask the Court to exclude Dr.
Linzs Supplemental Report.

CONCLUSION
For the reasons set forth above, Defendants respectfully request that the Court exclude
Dr. Bishops Report, Mr. Parkers Report, and Dr. Linzs Supplemental Report.

40

Id.
Id. p. 8.
42
Id. at 89
43
Id. at 910.
44
See, e.g., Freeman, 778 F.3d at 467 n.7 (party cannot use Rule 26(e) as a loophole to revise
previous reports); Williams, 719 F.3d at 976 (supplemental report rejected because it was
materially altering, not merely clarifying his original report); Avila, 633 F.3d at 836 (the new
reports were not merely refinements of previous reports, but were entirely new).
41

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DATED: January 27, 2017


OFFICE OF THE UTAH ATTORNEY GENERAL

/s/ Greg Soderberg


PARKER DOUGLAS
Chief Federal Deputy Attorney General
DAVID N. WOLF
GREG SODERBERG
Assistant Utah Attorney General
Counsel for Defendants

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