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Case 2:16-cv-00318-DN Document 45 Filed 01/27/17 Page 1 of 10

Ross C. Anderson (#0109)


randerson@lewishansen.com
Janet M. Conway (#7488)
jconway@lewishansen.com
LEWIS HANSEN
The Judge Building
Eight East Broadway, Suite 410
Salt Lake City, Utah 84111
Telephone: (801) 746-6300
Fax: (801) 746-6301
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

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


PLAINTIFFS MOTION TO EXCLUDE
THE EXPERT TESTIMONY OF DR.
WILLIAM GEORGE

Plaintiff,
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,

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


Honorable David Nuffer
Magistrate Evelyn J. Furse

Defendants.

I. RELIEF REQUESTED
Pursuant to Federal Rule of Evidence 702, Plaintiff Cinema Pub, LLC, d/b/a Brewvies
(Brewvies), by and through undersigned counsel, moves this Court for an order excluding the
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testimony of Defendants designated expert witness, William H. George, PhD (Dr. George),
because his methods and testimony do not comport with the legal requirements of an expert
witness.
II. STATEMENT OF FACTS
Defendants hired Dr. George, a psychology professor, as an expert witness to opine on the
psychological impact on the viewer when combining alcohol and sexually explicit visual content,
in support of Defendants argument that the challenged statute, U.C.A. 32B-1-504(7), serves the
states purported purpose of curbing negative secondary effects. 1 Dr. George has been asked by
Defendants to opine on this subject matter even though he has never been to Brewvies,2 does not
know anything about the demographics or the nature or interests of Brewvies patrons,3 and has
no idea what kinds of movies Brewvies shows.4 Moreover, Dr. George has never performed studies
(in which studies Dr. George uses pornography even deviant pornography for the purpose of
causing sexual arousal) relating to assessing the impact of combining alcohol and sexuality outside
of a laboratory setting,5 has never provided expert testimony outside of the context of statutes
addressing sexually oriented businesses,6 has never performed studies of combining alcohol with

Declaration of Janet M. Conway (hereinafter Conway Decl.) Exh. A, William H. George


Deposition, dated December 16, 2016, 6:21-7:3; 11:10-12:14; 152:24-153:3) (hereinafter
George Dep.).
2
George Dep. 117:1-2.
3
George Dep. 117:18-24; 194:13-17; 195:23-196:5; 202:18-25.
4
George Dep. 115:16-24.
5
George Dep. 22:20-24; 104:1-18; 108:7-109:4.
6
George Dep. 14:3-17; see also George CV, Exh. B to George Report dated October 31, 2016,
ECF No. 37-2, p. 3.
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viewing mainstream PG-13 or R rated movies,7 and has never performed studies relating to
any possible effects from watching mainstream movies in traditional theaters that sell alcohol.8
Despite Dr. Georges lack of expertise relating to the applicable facts of this case, he has
offered the following opinions:

I describe [Deadpool] as an action superhero parody, comedy.9

Referring to the strap-on wearing scene in Deadpool, Dr. George opines, that he felt the
scene had comedic value and merit and it made him laugh.10

[I]ts completely hypothetical as to whether or not a supraliminal presentation of a scene


[with sexual content] like the one from Deadpool will produce the results of increased
sexual disinhibition and aggressiveness, I I dont know the answer to that.11

Dr. George opines that watching Deadpool can drive the viewer to drink more, but not
that it will do so.12

Dr. George only speculates that watching Deadpool can drive people to be more
sexually aggressive, but not that it will do so.13

Dr. George has no opinion as to whether there have been adverse secondary effects in the
community around where Brewvies is located.14

George Dep. 111:18-21.


Id.
9
George Dep. 110:24-111:2.
10
George Dep. 144:19-145:13.
11
George Dep. 82:3-11.
12
George Dep. 125:13-23.
13
George Dep. 125:24-126:7.
14
George Dep. 154:18-23.
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Dr. George does not believe every act, or simulated act, of sexual intercourse combined
with the drinking of alcohol would result in an adverse secondary effect, only that
response patterns with regard to sexual aggressiveness, sexual risk taking, sexual arousal,
that would be constituent to certain adverse secondary effects. But secondary effects
themselves, Im not speaking to.15

Dr. Georges only focus in determining whether a combination of alcohol, such as might
be served at Brewvies, and sexual content, such as might be seen at Brewvies, is capable
of have a causal impact on people to become more sexually aggressive or sexually risky is
strictly in the abstract theoretical level.16
III.

ARGUMENT

Dr. George should not be permitted to testify about secondary effects in a mainstream
theater that he admittedly knows nothing about, relating to the viewing of mainstream PG-13 or
R rated movies at a non-sexually oriented business that serves alcohol, when he has never studied
or performed laboratory experiments remotely similar to the factual circumstances presented in
this case. Rule 702 provides that an expert witness may testify if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts of the case. 17 As the
gatekeeper, this court must exclude Dr. Georges testimony if it finds that the evidence admitted
is either irrelevant or unreliable. In making this determination, the court must assess the reasoning

George Dep. 156:11-157:2.


George Dep. 155:3-10.
17
Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993).
15
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and methodology underlying the experts opinion, and determine whether it is both scientifically
valid and applicable to a particular set of facts.18 Dr. Georges testimony should be excluded
because his opinions are not relevant and the purported secondary effects about which Dr.
George has stated in this case are actually primary effects on members of the audience which
cannot support the unconstitutional content-based statute at issue here. The Supreme Court has
confined the doctrine of secondary effects to the zoning of sexually oriented businesses.19
Moreover, Dr. Georges opinions are mere guesswork or speculation, based on unreliable
evidence, and thus does not meet any of the requirements imposed by Rule of Evidence 702.
1. Dr. George is not qualified to render opinions related to any alleged adverse
secondary effects resulting from Brewvies, an establishment that serves alcohol,
showing mainstream R rated movies that contain passing nudity, or otherwise
harmlessly violate U.C.A. 32B-1-504(7).
In order for expert testimony to be admissible, the expert must be qualified as an expert
by knowledge, skills, experience, training, or education.20 In assessing whether an expert is
qualified, the trial judge should not rely on labels, but must investigate the competence a
particular proffered witness would bring to bear on the issues.21 Thus, in order to admit his
testimony, this Court must find that Dr. George show[s] special knowledge of the very question
upon which he is to express an opinion.22

North v. Ford Motor Co., 505 F. Supp. 2d 1113, 1118 (D. Utah 2007).
Calvert, Clay. Content-Based Confusion and Panhandling: Muddling a Weathered First
Amendment Doctrine Takes its Toll on Societys Less Fortunate. 18 Rich. J.L. & Pub. Int. 249,
267.
20
Fed. R. Evid. 702.
21
Mannino v. Intl Mfg. Co., 650 F.2d 846, 850 (6th Cir. 1981).
22
George v. Morgan Const. Co., 389 F. Supp. 253, 259 (E.D. Pa. 1975).
18
19

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By trade, Dr. George is a psychology professor, with a long history of performing


laboratory experiments involving the consumption of alcohol while viewing pornographic
materials (including what he describes as deviant pornography23) to determine the psychological
impact on the individual subject and the degree of sexual aggression or sexual risk taking that
results. Dr. George has never been to Brewvies, never performed any studies relating to alcohol
outside of a laboratory setting, never performed any studies, in the field or in the laboratory, of
combining alcohol with viewing mainstream R rated movies, and never performed any studies,
in the field or in the laboratory, relating to any possible secondary effects from watching
mainstream movies in traditional theaters that sell alcohol, and has never provided expert
testimony outside the context of statutes addressing sexually oriented businesses. These topics are
the very questions upon which Defendants have asked him to opine.
While Dr. George may be qualified to opine on the combination of drinking alcohol while
watching pornography in a laboratory setting, this does not qualify him to opine on the issue of
combining alcohol with viewing mainstream movies or any purported secondary effects from
watching mainstream movies in traditional theaters that sell alcohol. As Dr. George has no
experience with the areas actually at issue in this case, nor has he conducted any relevant research,
it is difficult to understand what special knowledge he brings that would justify his service as an
expert witness. Indeed, Dr. Georges lack of even basic knowledge about Brewvies, the types of
movies shown at Brewvies, and the general demographics or nature or interests of Brewvies
patrons is readily apparent. The Court should exclude his opinions for this reason alone.

23

George Dep. 104:1-18; 108:7-109:4.


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2. Dr. Georges analysis lacks a sufficient factual basis and is not the product of
reliable principles and methods.
Not only is Dr. George unqualified to opine about the issue of combining alcohol with
viewing mainstream movies or any purported secondary effects from watching mainstream
movies in traditional theaters that sell alcohol, his methodology is profoundly flawed. Indeed,
Dr. Georges analysis consists of nothing more than his own bald and unsupported assertions.
Under Rule 702, this does not suffice.
Expert testimony must be based upon sufficient facts or data.24 In making a
determination about the admissibility of expert witness testimony, the Court must necessarily
address the extent to which an expert places greater emphasis on certain facts or data while
discounting the significance of more relevant criteria.25
An adequate factual basis is the foundation for any expert testimony. And in analyzing
that factual foundation, an expert must utilize reliable principles and methods, and employ the
same level of intellectual rigor that characterizes the practice of an expert in the relevant field.26
Yet, Dr. George did not perform any research or conduct any studies that are applicable to the facts
at issue in this case. Instead, Dr. George reviewed materials provided by Defendants, which
included the Complaint, relevant statutes, discovery responses, fact witnesses deposition
transcripts, and Brewvies expert witnesses reports. Based on this information, Dr. George then

Fed. R. Evid. 702(2); see also Guidroz-Brault v. Mo. Pac. R.R. Co., 254 F.3d 825, 831 (9th Cir.
2001) ([A]n expert must back up his opinion with specific facts.) (internal quotation marks and
citations omitted).
25
Mikes Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 408 (6th Cir. 2006).
26
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
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set out to do what is solely in the province of the trier of fact: conclude that his irrelevant laboratory
studies involving viewing pornography for the purpose of sexual arousal, and prior testimony
dealing with sexually oriented businesses, establishes the existence of purported secondary
effects in this case.
Dr. Georges failure to base his opinions on facts and data is evident in his repeated failure
to provide an evidentiary basis for many of his assertions. At his deposition, Dr. George
acknowledges that he has never been to Brewvies, never performed any studies relating to alcohol
outside of a laboratory setting, never performed any studies, in the field or in the laboratory, of
combining alcohol with viewing mainstream movies, and never performed any studies, in the field
or in the laboratory, relating to any possible effects from watching mainstream movies in
traditional theaters that sell alcohol, and has never provided expert testimony outside of the context
of statutes addressing sexually oriented businesses. Dr. George himself admits his opinions are
based solely in the abstract theoretical context and that he is not forming any opinions (other than
speculation) regarding whether there can be (not are) adverse secondary effects resulting from
Brewvies showing Deadpool.

Dr. Georges unfounded speculation is not proper expert

testimony.27
Further, many of Dr. Georges factual assertions have no basis in the historical record or
in fact, demonstrating that he failed to conduct thorough research before opining on the topics that
are the subjects of his reports. A court need not admit opinion evidence that is connected to

See Guidroz-Brault, 254 F.3d at 829 (expert testimony does not include unsupported
speculation and subjective beliefs).
27

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existing data only by the ipse dixit of the expert.28 Dr. Georges speculation about alleged
secondary effects from watching Deadpool, with and without the consumption of alcohol, is not
proper expert testimony. [T]he whole point of Daubert is that experts cant speculate but rather
need analytically sounds bases for their opinions.29
Given the host of flaws in Dr. Georges methodology and the fact that all of his opinions
are couched in an abstract theoretical spectrum based on laboratory experiments involving
pornography for the purpose of sexual arousal it is evident that Dr. George did not approach
this matter with an open mind. It is also clear that Dr. George is not being as careful as he would
be in his regular profession.30 Thus, it cannot be said that Dr. Georges testimony is the product
of reliable principles and methods and it should be excluded.
Dr. George is not offering an expert opinion arrived at through appropriate methodology
premised on an adequate factual basis. Because Dr. George fails to premise his opinions on
sufficient facts and data, and because his role is simply to tell the fact finder what outcome to
reach, Dr. Georges opinions can only be viewed as the unsupported conjecture of a psychologist
who has made it his mission over the last few decades to prove a causal link between sexually
aggressive or nonconforming behavior and watching pornography while consuming alcohol.
3.
Dr. Georges testimony is not sufficiently relevant under the fitness prong
under Daubert.
Finally, even if Dr. Georges testimony is scientifically valid and follows appropriately

Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).


DePaepe v. Gen. Motors Corp., 141 F.3d 715, 720 (7th Cir. 1998).
30
Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997).
28
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reliable methodologies, this Court should still exclude Dr. George as an expert witness, as his
opinions do not satisfy the fitness prong of the Daubert test. Under Daubert, the trial court must
also conduct a further inquiry into whether proposed testimony is sufficiently relevant to the task
at hand.31 The Supreme Court explained in Daubert that [f]it is not always obvious, and
scientific validity for one purpose is not necessarily scientific validity for other, unrelated
purposes.32 Expert testimony based on possibilities, not probabilities, is not helpful to a jury and
therefore not admissible under the fitness prong of the Daubert test because that is simply asking
a jury to speculate.33 Dr. George admittedly couches all of his opinions under a can it
possibility, which is mere speculation. Therefore, Dr. Georges testimony and opinions do not
overcome the bar set by Rule 702, and the Court should exclude his testimony and opinions.
IV. CONCLUSION
For the foregoing reasons, Brewvies Motion to Exclude Expert Testimony of Dr. George
should be granted.
Dated this 27th day of January, 2017.

______/s/ Janet M. Conway___


Janet M. Conway
Attorney for Plaintiff

Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1121 (10th Cir. 2004).
Daubert, at 591.
33
Hoy v. DRM, Inc., 114 P.3d 1268, 1284 (Wyo. 2005).
31
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Ross C. Anderson (#0109)


randerson@lewishansen.com
Janet M. Conway (#7488)
jconway@lewishansen.com
LEWIS HANSEN
The Judge Building
Eight East Broadway, Suite 410
Salt Lake City, Utah 84111
Telephone: (801) 746-6300
Fax: (801) 746-6301
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
CINEMA PUB, L.L.C., d/b/a BREWVIES,
DECLARATION OF JANET M.
CONWAY EXHIBIT 1 TO
PLAINTIFFS MOTION TO EXCLUDE
THE EXPERT TESTIMONY OF DR.
WILLIAM GEORGE

Plaintiff,
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


Honorable David Nuffer
Magistrate Evelyn J. Furse

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Exhibit A

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Case
2:16-cv-00318-DN
Document
45-1NDTFiled
01/27/17
William
H George PhD December
16, 2016
Assgn
# 22762-1 Page 6 of 32

A.

Professor.

Q.

In the psychology department?

A.

Yes.

Q.

How long have you been employed as a

5 professor?
6

A.

I've been employed at the University of

7 Washington since December of 1991.


8

Q.

And you've provided a document entitled

9 "Expert Report of Dr. William George" in this


10 matter.
11

A.

I did.
MR. ANDERSON:

12

We can have that marked as

13 Exhibit A if we could.
14

COURT REPORTER:

15

(Whereupon, Exhibit A was marked for

Sure.

16 identification.)
17 BY MR. ANDERSON:
18

Q.

And that report is Exhibit A.

Your

19 report is marked as Exhibit A, Dr. George?


20

A.

It is.

21

Q.

And your education, career experience,

22 publications, presentations, all of that is set


23 forth in Exhibit A?
24
25 itself.

MR. WOLF:

Objection; Exhibit A speaks for

Page 7

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