Case 2:12-cv-00887-CBM-AJW Document 62

Filed 11/26/12 Page 1 of 11 Page ID #:1039

1 Paul D. Clement (DC Bar 433215) pclement@bancroftpllc.com 2 H. Christopher Bartolomucci (DC Bar 453423) 3 cbartolomucci@bancroftpllc.com Nicholas J. Nelson (DC Bar 1001696) 4 nnelson@bancroftpllc.com 5 Michael H. McGinley (DC Bar 1006943) mmcginley@bancroftpllc.com 6 7 BANCROFT PLLC 1919 M Street, N.W. 8 Suite 470 9 Washington, D.C. 20036 10 202-234-0090 (telephone) 202-234-2806 (facsimile) 11 12 Of Counsel: Kerry W. Kircher, General Counsel (DC Bar 386816) 13 Kerry.Kircher@mail.house.gov 14 William Pittard, Deputy General Counsel (DC Bar 482949) William.Pittard@mail.house.gov 15 Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000) 16 Christine.Davenport@mail.house.gov Todd B. Tatelman, Assistant Counsel (VA Bar 66008) 17 Todd.Tatelman@mail.house.gov 18 Mary Beth Walker, Assistant Counsel (DC Bar 501033) MaryBeth.Walker@mail.house.gov 19 Eleni M. Roumel, Assistant Counsel (SC Bar 75763) 20 Eleni.Roumel@mail.house.gov 21 OFFICE OF GENERAL COUNSEL, 22 U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building 23 Washington, D.C. 20515 24 202-225-9700 (telephone) 202-226-1360 (facsimile) 25 26 Counsel for Intervenor-Defendant Bipartisan Legal Advisory Group of the U.S. House of Representatives 27 28

Case 2:12-cv-00887-CBM-AJW Document 62

Filed 11/26/12 Page 2 of 11 Page ID #:1040

1 2 3 4 5 6 7 8 9 10

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Western Division ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

TRACEY COOPER-HARRIS and MAGGIE COOPER-HARRIS, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants,

No. 2:12-cv-00887-CBM (AJWx) REPLY IN SUPPORT OF INTERVENORDEFENDANTS MOTION TO EXCLUDE THE EXPERT TESTIMONY OF DR. LAWRENCE J. KORB AND MAJ. GEN. (RET.) DENNIS LAICH Hearing: December 10, 2012 Time: 10:00 a.m. Hon. Consuelo B. Marshall

11 BIPARTISAN LEGAL ADVISORY 12 GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, 13 Intervenor-Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 2:12-cv-00887-CBM-AJW Document 62

Filed 11/26/12 Page 3 of 11 Page ID #:1041

On November 6, 2012, Intervenor-Defendant the Bipartisan Legal Advisory

2 Group of the U.S. House of Representatives (the House) moved for entry of an 3 order excluding from the record the reports and testimony of Dr. Lawrence J. Korb 4 and Maj. Gen. (Ret.) Dennis Laich, who Plaintiffs Tracey Cooper-Harris and 5 Maggie Cooper-Harris (Plaintiffs) have offered as experts. See Mot. to Exclude 6 the Expert Testimony of Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich 7 (Nov. 6, 2012) (ECF No. 55) (Motion to Exclude). The House now replies to 8 Plaintiffs Memorandum of Law in Opposition to Intervenor-Defendants Motion 9 to Exclude (Nov. 19, 2012) (ECF No. 60) (Pls. Oppn). 10 Neither Dr. Korb nor Gen. Laich has offered admissible expert testimony. 11 At bottom, both purported experts present no more than unsupported personal 12 policy preferences. Plaintiffs proffer both Dr. Korb and Gen. Laich as 13 experience experts, see, e.g., Pls. Oppn at 16, but neither witness has identified 14 any specific experience that is particularly relevant to the issues at hand, and 15 neither has even attempted to document their conclusions with actual experiential 16 dataas they readily admitted in depositions. They do not cite any empirical 17 evidence to support their conclusions; they do not rely on specific experiences with 18 same-sex couples in the military personnel context; and they do not set forth any 19 verifiable methodologies for reaching their conclusions. Instead, they merely 20 recite their rsums and ask this Court to trust their strongly held beliefs. But 21 expert testimony must consist of more than subjective belief or unsupported 22 speculation. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590, 113 S. Ct. 23 2786, 125 L. Ed. 2d 469 (1993). This Court should thus exclude Dr. Korbs and 24 Gen. Laichs opinions and testimony from the record. 25 26 27 28 1

Case 2:12-cv-00887-CBM-AJW Document 62

Filed 11/26/12 Page 4 of 11 Page ID #:1042

1 2

ARGUMENT The Supreme Court and the Ninth Circuit have long held that [t]he

3 gatekeeping role exercised by district courts entails a preliminary assessment of 4 whether the reasoning or methodology underlying the testimony is valid and of 5 whether that reasoning or methodology properly can be applied to the facts in 6 issue. United States v. Freeman, 498 F.3d 893, 901 (9th Cir. 2007) (internal 7 alteration marks omitted) (quoting Daubert, 509 U.S. at 592-93). This bedrock 8 rule of evidence requires this Court to assure that the expert testimony both rests 9 on a reliable foundation and is relevant to the task at hand. Primiano v. Cook, 10 598 F.3d 558, 564 (9th Cir. 2010) (quoting Daubert, 509 U.S. at 597). 11 Plaintiffs do not deny any of this. Instead, they seem to suggest that the 12 Supreme Courts holdings in Daubert do not apply to experience experts like Dr. 13 Korb and Gen. Laich. See, e.g., Pls. Oppn at 13-14. But this Courts gatekeeping 14 role applies to all expert testimony, not only to scientific expert testimony. 15 Freeman, 498 F.3d at 901 (citing Kumho Tire Co., Ltd v. Carmichael, 526 U.S. 16 137, 147 (1999)). Even supremely qualified expert[s] cannot waltz into the 17 courtroom and render opinions unless those opinions are based upon some 18 recognized scientific method and are reliable and relevant under the test set forth 19 by the Supreme Court in Daubert. Lewis v. CITGO Petroleum Corp., 561 F.3d 20 698, 705 (7th Cir. 2009) (quoting Clark v. Takata Corp., 192 F.3d 750, 759 n.5 21 (7th Cir. 1999)). Nor are these rules relaxed for military experts, as Plaintiffs also 22 seem to suggest. See Goldman v. Weinberger, 475 U.S. 503, 509, 106 S. Ct. 1310 23 (1986) (rejecting challengers reliance on expert testimony that religious 24 exceptions to [military dress regulations] are in fact desirable and will increase 25 morale by making the Air Force a more humane place); Pls. Oppn at 12 (citing 26 Goldman). Certainly military officers cannot testify as experts on all facets of 27 military life, simply by dint of their years of service. 28 2

Case 2:12-cv-00887-CBM-AJW Document 62

Filed 11/26/12 Page 5 of 11 Page ID #:1043

1 2 3

I.

The Proffered Opinions Are Inadmissible Because They Are Not Based on Any Specific Facts or Reliable Methodology.

The main thrust of Dr. Korbs and Gen. Laichs reports is that employees

4 tend to prefer receiving more employment benefits. But this truism is within the 5 common knowledge of the average layman, United States v. Morales, 108 F.3d 6 1031, 1039 (9th Cir. 1997); see also United States v. Vallejo, 237 F.3d 1008, 1019 7 (9th Cir. 2001), and requires no specialized understanding of the subject involved 8 in the dispute, Fed. R. Evid. 702, advisory committees note. Plaintiffs proffered 9 experts do not claim to have utilized any specialized, verifiable methodology to 10 reach this common sense conclusion. And this Court does not require expert 11 testimony to ascertain what every layman knows. 12 Moreover, neither expert attempts to quantify this generalization or point to 13 any facts specific to same-sex couples in the military context. Neither proposed 14 experts military experience appears to have involved anything more than 15 incidental and anecdotal contact with gay or lesbian service members. In fact, both 16 witnesses admit that they did not rely on any verifiable data in reaching their 17 conclusions, and Plaintiffs concede as much in their Opposition. See Pls. Oppn 18 at 16 (arguing that experts inability to quantify their data or conclusions does not 19 require their exclusion). Most revealing, the witnesses have not attempted to study 20 how Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. 7, and 38 21 U.S.C. 101(3) & (31) (Title 38), actually affect recruiting, retention, or troop 22 readiness in the militarythe very topics of their conclusions. See Korb Dep. 23 54:3-19, Mem. of Points and Authorities in Supp. of Mot. to Exclude the Expert 24 Testimony of Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich (Nov. 6, 25 2012) (ECF No. 56) (Mem. in Supp. of Mot. to Exclude), Ex. C; Laich Dep. 26 40:16-41:10, 44:5-8, 59:12-60:9, 61:17-20, 68:21-25, 73:20-25, 75:4-11, 76:11-22, 27 Mem. in Supp. of Mot. to Exclude, Ex. D. They did not survey or interview 28 3

Case 2:12-cv-00887-CBM-AJW Document 62

Filed 11/26/12 Page 6 of 11 Page ID #:1044

1 service members in same-sex marriages, aside from their own mere anecdotal 2 experiences. See Korb Dep. 11:15-12:18, 30:14-31:6; Laich Dep. 51:15-52:19, 3 60:6-9, 86:22-87:2, 102:8-103:8. Nor did they conduct any sort of quantifiable 4 cost-benefit analysis of the spousal definitions in DOMA and Title 38. See Laich 5 Dep. 66:17-22. Instead, they ask this Court to trust their conjecture because they 6 have served in and studied the military. 7 Plaintiffs Opposition offers nothing to dispute this conclusion. To be sure, 8 the Opposition asserts that Dr. Korbs and Gen. Laichs opinions [a]re [b]orne of 9 [s]pecific [m]ilitary [e]xperience. Pls. Oppn at 12. Yet, Plaintiffs do not 10 identify any such specific military experience. To support their assertion, they 11 state that (1) the military is a unique space with experiences, rigors, and 12 challenges not faced in the civilian world, id.; (2) experts can offer non-scientific 13 testimony, id. at 12-13; (3) Dr. Korb and Gen. Laich have worked directly for the 14 United States military, have formal training in military and national defense issues 15 unavailable to laypersons, and have taught classes on the same, id. at 14; and (4) 16 Dr. Korb and Gen. Laich have previously served as experts, id. All of this may 17 be true. But none of it identifies any specific experiences, facts, or methods 18 employed by Dr. Korb or Gen. Laich to reach their conclusions on the specific 19 issues on which they purport to be experts, namely, the impact of DOMA Section 3 20 and Title 38 in the military and veterans benefits context. On the contrary, it 21 confirms that Plaintiffs ask this Court to credit the policy views of their experts
1 22 based on nothing more than the experts rsums.

23 24 25 26 27 28

At times, Plaintiffs seem to suggest that Dr. Korb and Gen. Laichs expert opinions are simply that Title 38 and DOMA have no rational basis. Pls. Oppn at 16. That, of course, is a legal question posed in this litigation. And proper experts assist the trier of fact by presenting specialized factual knowledge, not legal conclusions. See Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1065 n.10 (9th Cir. 2002) ([A]n expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.) (emphasis in original). 4

Case 2:12-cv-00887-CBM-AJW Document 62

Filed 11/26/12 Page 7 of 11 Page ID #:1045

1 2 3

II.

The Proffered Opinions Are Unreliable Because They Are Based on a Misunderstanding of DOMA Section 3 and Title 38.

Even if Dr. Korb and Gen. Laich had based their opinions on any credible

4 facts or method, their conclusions would remain unreliable because they are based 5 on two fundamental misunderstandings of the relevant laws. First, both witnesses 6 assume that, in the absence of DOMA and Title 38, all same-sex military couples 7 across the nation could obtain marriage certificates from a state that issues them 8 and obtain spousal military or veterans benefits. See Korb Dep. 44:2-22; Laich 9 Dep. 54:8-59:11, 100:10-102:7. But such couples would be eligible only if they 10 establish residence in a state that recognizes same-sex marriage certificates. See 38 11 U.S.C. 103(c). Thus, the reality is that, in the absence of DOMA and Title 38, 12 some same-sex couples would be eligible for military and veteran benefits, while 13 other same-sex couples in different states would not be eligible for the same 14 benefits. Rather than promoting uniform provision of benefits, as both witnesses 15 assume, elimination of the spousal definitions in DOMA and Title 38 would result 16 in disuniformity of benefits among same-sex couples. 17 Far from being a harmless error or an immaterial misapprehension, as 18 Plaintiffs suggest, this misconception by the putative experts is fatal to their 19 conclusions. Plaintiffs contend that their proposed experts purport to opine only on 20 the effect of federal discrimination on the military, not on any differences in 21 state law that would remain if DOMA and Title 38 were eliminated. Pls. Oppn at 22 18. But the point is that both Gen. Laich and Dr. Korb have admitted to 23 fundamentally incorrect understandings of the alleged federal discrimination 24 Plaintiffs attackeach believes that eliminating the federal discrimination would 25 also uproot substantial amounts of differential treatment that actually derives from 26 state law. In other words, both experts are opining that DOMA and Title 38s 27 spousal definitions cause significant problems for the military, but they are doing 28 5

Case 2:12-cv-00887-CBM-AJW Document 62

Filed 11/26/12 Page 8 of 11 Page ID #:1046

1 so under a serious misimpression as to what DOMA and Title 38 actually do. 2 Indeed, both purported experts also opine that the promotion of uniformity is a 3 desirable outcome. See Korb Dep. 45:17-22; 65:11-17; Laich Dep. 56:7-21. Yet, 4 plainly neither considered the uniformity promoted by DOMA Section 3 and Title 5 38 because they fundamentally misunderstood how these laws apply in the 6 veterans benefits context. Under these circumstances, their opinions are 7 obviously unreliable. 8 Second, Dr. Korb and Gen. Laich incorrectly assume that same-sex couples 9 cannot participate in Family Readiness Groups. Both witnesses rely heavily on 10 this assumption to conclude that DOMA and Title 38 harm military readiness. See 11 Korb Rep. 24, Mem. in Supp. of Mot. to Exclude, Ex. B; Laich Rep. 29-31, 12 Mem. in Supp. of Mot. to Exclude, Ex. C; Korb Dep. 72:13-73:2; Laich Dep. 62:213 18, 79:17-22, 88:4-89:15. But nothing in the military regulations or handbooks 14 related to Family Readiness Groups suggests they are limited to opposite-sex 15 spouses. See Mot. to Exclude at 16-17. In fact, those materials suggest that 16 Family Readiness Groups could include same-sex spouses. See id. at 17-18. In 17 their Opposition, Plaintiffs do not attempt to defend this error. Pls. Oppn at 1818 19. Thus, at a minimum, the witnesses conclusions regarding these groups must 19 be excluded. 20 21 CONCLUSION For the foregoing reasons, the Court should grant the Houses Motion to

22 Exclude the Testimony of Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis 23 Laich and enter an order prohibiting their use or citation in this case. 24 25 26 27 28 6

Case 2:12-cv-00887-CBM-AJW Document 62

Filed 11/26/12 Page 9 of 11 Page ID #:1047

1 2 3 4 5 6 7 8 November 26, 2012 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted, By: /s/ H. Christopher Bartolomucci H. Christopher Bartolomucci BANCROFT PLLC Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives

Case 2:12-cv-00887-CBM-AJW Document 62 Filed 11/26/12 Page 10 of 11 Page ID #:1048

1 2

CERTIFICATE OF SERVICE I hereby certify that on November 26, 2012, I electronically filed the

3 foregoing Reply in Support of Intervenor-Defendants Motion to Exclude the 4 Testimony of Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich with the 5 Clerk of Court by using the CM/ECF system, which provided an electronic notice 6 and electronic link of the same to the following attorneys of record through the 7 Courts CM/ECF system: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Adam P. Romero, Esquire Daniel S. Noble, Esquire Rubina Ali WILMER CUTLER PICKERING HALE & DORR LLP 7 World Trade Center New York City, New York 10007 212-295-6422 adam.romero@wilmerhale.com daniel.noble@wilmerhale.com rubina.ali@wilmerhale.com Eugene Marder, Esquire WILMER CUTLER PICKERING HALE & DORR LLP 950 Page Mill Road Palo Alto, California 94304 650-858-6000 eugene.marder@wilmerhale.com Caren E. Short, Esquire Christine P. Sun, Esquire Joseph J. Levin, Jr., Esquire SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, Alabama 36104 334-956-8200 caren.short@splcenter.org christine.sun@splcenter.org joe.levin@splcenter.org

Case 2:12-cv-00887-CBM-AJW Document 62 Filed 11/26/12 Page 11 of 11 Page ID #:1049

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Randall R. Lee, Esquire Matthew D. Benedetto, Esquire WILMER CUTLER PICKERING HALE & DORR LLP 350 South Grand Avenue Suite 2100 Los Angeles, California 90071 213-443-5400 randall.lee@wilmerhale.com matthew.benedetto@wilmerhale.com Jean Lin, Trial Attorney U.S. DEPARTMENT OF JUSTICE Civil Division - Federal Programs Branch 20 Massachusetts Avenue, Northwest Washington, District of Columbia 20530 202-514-3716 jean.lin@usdoj.gov

/s/ H. Christopher Bartolomucci H. Christopher Bartolomucci