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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION APRIL DEBOER, et al, Plaintiffs, v RICHARD SNYDER, et al Defendants. Civil Action No. 12-cv-10285 HON. BERNARD A. FRIEDMAN MAG. MICHAEL J. HLUCHANIUK STATE DEFENDANTS RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION IN LIMINE TO EXCLUDE TESTIMONY OF DRS. ALLEN AND PRICE

Dana M. Nessel (P51346) Attorney for Plaintiffs 645 Griswold Street, Suite 4300 Detroit, MI 48226 (313) 556-2300; Fax (313) 965-5580 dana@nesselandkessellaw.com

Carole M. Stanyar (P34830) Attorney for Plaintiffs 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 (313) 819-3953 cstanyar@wowway.com

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Kristin M. Heyse (P64353) Joseph E. Potchen (P49501) Michelle M. Brya (P66861) Tonya C. Jeter (P55352) Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700; Fax (517) 351-1152 heysek@michigan.gov potchenj@michigan.gov bryam@michigan.gov jetert@michigan.gov

Andrea J. Johnson (P74596) Michael L. Pitt (P24429) Beth M. Rivers (P33614) Attorneys for Defendant Lisa Brown Pitt McGehee Palmer Rivers & Golden, P.C. 117 W. Fourth St., Ste. 200 Royal Oak, MI 48067 (248) 398-9800 ajohnson@pittlawpc.com mpitt@pittlawpc.com brivers@pittlawpc.com
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STATE DEFENDANTS RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION IN LIMINE TO EXCLUDE TESTIMONY OF DRS. ALLEN AND PRICE Bill Schuette Attorney General Kristin M. Heyse Assistant Attorney General Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 P64353

Dated: February 14, 2014

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TABLE OF CONTENTS Page Table of Contents ....................................................................................... i Index of Authorities...................................................................................ii Controlling or Most Appropriate Authority............................................. iv Introduction ............................................................................................... 1 Argument ................................................................................................... 2 I. Drs. Allen and Prices opinions and testimony are relevant, reliable, and requisite, and, therefore, should not be excluded. ........................................................................................... 2 A. Dr. Douglas Allen .................................................................... 6 1. 2. 3. B. Dr. Allen is Qualified to Offer an Expert Opinion in this Case..................................................................... 6 Dr. Allens Opinions are Reliable ................................ 11 Dr. Allens Opinions would not waste time or create confusion............................................................ 14

Dr. Joseph Price .................................................................... 15 1. 2. 3. Dr. Price is Qualified to Offer an Expert Opinion in this Case................................................................... 15 Dr. Prices Opinions are Relevant ............................... 17 Dr. Prices Opinions are Reliable ................................. 18

Conclusion and Relief Requested ............................................................ 20 Certificate of Service ............................................................................... 21

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INDEX OF AUTHORITIES Page Cases Coleman v. Home Depot, Inc., 306 F.3d 1333 (3d Cir. 2002) .................................................................. 5 In re TMI Litigation, 193 F.3d 613 (3d Cir. 1999), amended by 199 F.3d 158 (3d Cir. 2000) ....................................................................................................... 4 In re Unisys Savings Plan Litigation, 173 F.3d 145 (3d Cir. 1999) .................................................................... 5 McCullock v. H.B. Fuller Co., 61 F.3d 1038 (2d Cir. 1995) .................................................................... 3 McLean v. 988011 Ontario, Ltd., 224 F.3d 797 (6th Cir. 2000) .................................................................. 5 Ruiz-Troche v. Pepsi Cola, 161 F.3d 77 (1st Cir. 1998) ................................................................... 18 Stilwell, 482 F.3d at 1192 ................................................................................... 13 Stollings v. Ryobi Technologies, Inc., 725 F.3d 753 (7th Cir. 2013) ............................................................ 4, 19 United States v. Krenzelok, 874 F.2d 480 (7th Cir. 1989) .................................................................. 5 United States v. Stone, 848 F. Supp. 2d 714 (E.D. Mich. 2012) .................................................. 4

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Rules Fed. R. Evid. 401 ....................................................................................... 2 Fed. R. Evid. 402 ....................................................................................... 2 Fed. R. Evid. 403 ....................................................................................... 5 Fed. R. Evid. 702 ........................................................................... 6, 11, 16 Fed. R. Evid. 702(2) ................................................................................. 11

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CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); Fed. R. Evid. 401, 402, 403, 702.

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INTRODUCTION Plaintiffs challenge Drs. Allen and Price under Daubert v. Merrell Dow Pharmaceuticals, but their arguments are without merit. The federal rules contemplate a broad conception of expert qualifications. As Rule 702 makes clear, a witness may be qualified as an expert by knowledge, skill, experience, training, or education. Any one of these bases, in other words, may be the source for a witnesss expertise. Both Drs. Allen and Price have overwhelming knowledge, skill, experience, training, and education to assist this Court in understanding the rationales State Defendants have proffered in support of the Michigan Marriage Amendment. Drs. Allen and Prices opinions and testimony are relevant, reliable, and requisite. Further, if either Dr. Allen or Dr. Price were to be found unqualified to provide expert testimony in this case, the same would be true of Plaintiffs experts. Finally, Plaintiffs arguments go to the weight of the doctors opinions and testimony, not their admissibility. Accordingly, State Defendants respectfully request that this Court deny Plaintiffs motion to exclude Drs. Allen and Price.

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ARGUMENT I. Drs. Allen and Prices opinions and testimony are relevant, reliable, and requisite, and, therefore, should not be excluded. Plaintiffs challenges to Drs. Allen and Prices opinions and testimony must be rejected. First, their opinions in this case are relevant because they directly address the sole triable issue: the States rationale for retaining the definition of marriage. Second, Plaintiffs challenges to reliability go to weight, not admissibility. Finally, Plaintiffs arguments for excluding their testimony not only lack merit, but they would almost certainly require the exclusion of Plaintiffs experts as well. Thus, Drs. Allen and Price should be permitted to testify at trial. If an experts opinions are relevant, they should be admitted. All evidence must be relevant to be admissible. Fed. R. Evid. 402. Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Fed. R. Evid. 401. This is a liberal standard. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993). For experts in particular, a proffered experts testimony

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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. Id. at 591. Specifically, there must be a fit or valid connection between the experts reasoning or methodology and the pertinent questionthe facts at issuebefore the court. Id. at 591-93. Further, issues that pertain solely to the weight of the evidence do not render the evidence inadmissible. While [t]rial judges must exercise sound discretion as gatekeepers of expert testimony under Daubert, they do not take on the role of St. Peter at the gates of heaven, performing a searching inquiry into the depth of an expert witnesss soulseparating the saved from the damned. McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1045 (2d Cir. 1995) (referencing Daubert, 509 U.S. 579). This is because [s]uch an inquiry would inexorably lead to evaluating witness credibility and weight of the evidence, the ageless role of the [trier of fact]. Id. If an attack on an expert witness pertains only to the weight of the evidence, the experts opinion should be admitted. See Daubert, 509 U.S. at 596 (Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden

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of proof are the traditional and appropriate means of attacking shaky but admissible evidence.). The reliability of an experts conclusions goes to weight, not admissibility. If the experts testimony is based on well-established science, the courts generally have concluded that reliability problems go to weight, not admissibility. United States v. Stone, 848 F. Supp. 2d 714, 719 (E.D. Mich. 2012) (internal citations and quotation marks omitted). An expert may provide expert testimony based on a valid and properly applied methodology and still offer a conclusion that is subject to doubt, but [i]t is the role of the [trier of fact] to weigh these sources of doubt. Stollings v. Ryobi Technologies, Inc., 725 F.3d 753, 765-66 (7th Cir. 2013) (citing Daubert, 509 U.S. at 595). The experts conclusions need not be unimpeachable to be admissible. Id. at 765. The admissibility inquiry thus focuses on principles and methodology, not on the conclusions generated by the principles and methodology. In re TMI Litigation, 193 F.3d 613, 665 (3d Cir. 1999), amended by 199 F.3d 158 (3d Cir. 2000) (emphasis added). Credibility issues also go to weight, rather than admissibility. For example, expert witnesses cannot be excluded on the basis of bias.

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In re Unisys Savings Plan Litigation, 173 F.3d 145, 166 n.11 (3d Cir. 1999). In addition, attacks on the factual bases of an experts opinion bear on the weight of the evidence rather than on its admissibility. McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 801 (6th Cir. 2000) (internal citation and quotation marks omitted). Further, expert testimony, like all evidence, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, waste of time, undue delay, or needless presentation of cumulative evidence. Fed. R. Evid. 403. However, there is a strong presumption that relevant evidence should be admitted, and thus for exclusion under Rule 403 to be justified, the probative value of evidence must be substantially outweighed by the problems in admitting it. Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343-344 (3d Cir. 2002). When in doubt, Rule 403 requires admission[.] United States v. Krenzelok, 874 F.2d 480, 482 (7th Cir. 1989). [E]vidence that is highly probative is exceptionally difficult to exclude. Coleman, 306 F.3d at 1344.

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A.

Dr. Douglas Allen

Dr. Douglas Allen, a preeminent economist and social scientist, will provide expert testimony that directly refutes Plaintiffs claim that there is no difference between children raised by two heterosexual parents and children raised by same-sex parents. He conducted an exhaustive study on child outcomes based on family type and has reviewed over 60 studies spanning decades on this issue. In fact, Dr. Allen directly replicated the no difference study offered by Plaintiffs expert, Professor Michael Rosenfeld, using both U.S. and Canadian census date, and can explain the flaws in that study. Dr. Allens testimony will assist this Court in understanding the articulated rationales the State Defendants put forth in support of Michigans Marriage Amendment and refute Plaintiffs arguments that there is no rational basis for this Amendment. 1. Dr. Allen is Qualified to Offer an Expert Opinion in this Case

Rule 702 does not mention any specific credentials or qualifications; instead it provides that an expert may be qualified based on a wideranging spectrum of criteria, including by knowledge, skill, experience, training, or education. Fed. R. Evid. 702. In short, the federal rules 6

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recognizeand even a brief review of Dr. Allens qualifications and publications demonstratethat contrary to Plaintiffs suggestion, professional academics, nor a specific profession, hold a monopoly on expertise that may be helpful to this Court. Indeed, as evidenced by Dr. Allens curriculum vitae (CV), and comprehensively explained during his deposition, Dr. Allen has achieved prominence in his fields of expertiseempirical methods and economicsand he has generated a body of written academic work (including many published studies across a large number of fields). (See Exhibit 1, Allen Deposition, 1/18/14, pp 22-23; see also Exhibit 2, Allen CV). As an expert social scientist, who obtained his first degree in economics in 1983 and later received his Ph.D. in the same field, Dr. Allen has dedicated his professional life to studying, writing, and educating others about sociological issues, including the impact of family structures encompassed by same-sex marriage. (Exh 3, 5; Exh 2). Of import, Dr. Allen has been trained extensively in econometrics and in statistics. Further, he has continuously worked with large data sets and

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large state level data sets in both the United States and Canada. (See Exhibit 2). During his tenure as an academic, Dr. Allen has published 46 articles in academic journals, and published 30 other articles in scholarly books, encyclopedias, and other academic outlets. (Exh 3, 4). He has published three academic books, and two undergraduate textbooks on micro-economic theory. (Exh 3, 4). All of Dr. Allens publications, one book and twenty-seven of his articles relate to the family, an area he has worked in since 1986. (Exh 3, 5; see also Exh 2). Four of his publications and three working papers related to same-sex households; two of his papers addressed empirical estimates of child outcomes. (Exh 3, 5; see also Exh 2). Moreover, Dr. Allen has delivered many academic lectures and public lectures, written extensively, and testified on the topic of same-sex marriage. He has taught both undergraduate and graduate courses, and regularly taught a fourth year seminar on The Economics of the Family. (Exh 3, 6). He further has received numerous academic awards and honors, including the Deans Silver Medal for outstanding academic service in research and teaching, the endowed Burnaby

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Mountain Chair, two Erskine Fellowships at the University of Canterbury, New Zealand, and a university wide teaching award. (Exh 3, 8). Notably, Rule 702 contemplates that 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. Uniquely, for a social scientist, Dr. Allen has a broad, interdisciplinary background and research record, including in mathematical and narrative research. (Exh. 2.) He is being offered as an expert in empirical methods, in part, to address the Plaintiffs interpretation of the social science empirical evidence to claim that children in same-sex parented families experience no difference in outcome measures compared to similar children in opposite-sex parented families. (Exh 3.) As such, Dr. Allen can directly refute the supposed no difference in statistical data claim that Plaintiffs assert. In doing so, he will speak to the meaning of statistical difference, fixed effects versus sample restrictions, the effect of gender composition, the best method to control for family stability in a cross section, and the importance of including the proper number of own

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children. None of these areas of testimony are within the scope of the average person. Finally, Dr. Allen and his work have been widely praised. He has received numerous honors and awards as a result of his outstanding academic service in research and teaching. (Exh 2.) While Plaintiffs also challenge his qualification to be an expert based on his religious beliefs, to be clear: Dr. Allen indicated that his religious beliefs were irrelevant and played no role in his research. In short, far from being unqualified to offer any expert opinion in this caseas Plaintiffs would have itDr. Allen, a social scientist, is a highly qualified, honored, and distinguished expert in the fields of empirical methods and economics. (Exh 2 and 3.) Dr. Allens knowledge extends to many different areas addressed in economics study of human behavior, including family structures, marriage, divorce, sociology, labor, law and legal regulations, and economic history. (Exh 1, pp 32-34; Exh 2.) Indeed, with respect to the institution of the family and marriage, as well as in econometrics, he has done extensive study and writing; and, with regard to same-sex marriage in particular, he has previously testified as an expert and he has addressed outcomes for

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children living with gay and lesbian parents in contrast to opposite-sex parents. (Exh 2 and 3.) 2. Dr. Allens Opinions are Reliable

Dr. Allens opinions readily satisfy the requirements of Fed. R. Evid. 702. First, his opinions are based on sufficient facts or data. His view of child outcomes based on family type is the result of an exhaustive survey of the child outcome literature he completed from 1995 through 2013. (Exh 3.) In addition, his literature review and his own research covers 60 studies spanning decades and covering more than one country where children have lived with same-sex parents. Dr. Allen directly replicated the no difference in child outcomes study offered by Plaintiffs expert, Professor Michael Rosenfeld. (Exh 1, pp 35-39, 40.) His viewpoints regarding the child outcomes based on family type are drawn from his own careful and comprehensive analysis of the social science research that pertains to same-sex and opposite-sex households. (Exh 2.) Second, Dr. Allens opinions are based on reliable principles and methods. Fed. R. Evid. 702(2). Dr. Allen utilized the standard econometric tools of his trade to directly replicate Professor Rosenfelds 11

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study. The controls he put in place in replicating Professor Rosenfelds study are widespread and commonly accepted in statistical analysis and the field of economics, see Exh 3, and are verifiable empirically. And the normative conclusions that he draws from his data follow logically from that inquiry. Dr. Allens predictions that there is, in fact, an actual difference in child outcomes based on family type are based on reliable principles and methods. Given the novelty of experiments with recognizing same-sex relationships as marriages, empirical evidence of the effects of these experiments on children is still relatively new. As such, Dr. Allen opines that it takes a long time, and significant data resources, to provide confident answers to questions regarding the effect of legal changes on family behavior and outcomes. (Exh 3.) His predictions that literature on child outcomes based on household type is in its infancy, and, at best, preliminary, at worst, political documents, are logical. His opinions were developed thoughtfully, based on his own reflection and his systematic study of social science proffered by both proponents and opponents of extending marriage to same-sex relationships. (See Exh 3; Exh 1, pp 45-46).

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Indeed, Dr. Allens predictions about child outcomes based on family type are at least as methodologically rigorous asand far more persuasive thanthe predictions offered by Plaintiffs experts. Moreover, Dr. Allens opinions reflect the same level of intellectual rigor that characterizes the practice of an expert in the relevant field[s], Kumho, 526 at 152, of, inter alia, empirical methods and economics. In arguing otherwise, Plaintiffs simply disagree with Dr. Allens testimony. The Courts gatekeeping function, however, is to test not the correctness of the experts conclusions but the soundness of his methodology. Stilwell, 482 F.3d at 1192. Similarly, Plaintiffs claims that Dr. Allens opinions are unreliable for the reason that, with respect to his critique of Professor Rosenfelds work, they are misleading, as they do not reflect actual data is wholly without merit. (Br. In Support of Pl. Mot. in Limine to Bar Testimony of Allen and Price, Doc # 118, p 14). At his deposition Dr. Allen logically and forcefully explained why Plaintiffs arguments do not undermine his conclusions. (See Exh 1, pp 35-38, 39-40). Dr. Allens expert report and deposition testimony plainly addressed studies comparing children living with intact biological families with children living with other family

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types, particularly same-sex households. (See, e.g., Exh 1 and 2). Furthermore, Dr. Allens deposition testimony demonstrated that he is conversant with the data comparing children in intact biological families with children living in same-sex households. And Plaintiffs suggestion that Dr. Allens opinions regarding children living with same-sex parents are somehow misleading simply reflects a misunderstanding of Dr. Allens opinions, as well as State Defendants theory of the case. Finally, Dr. Allen has applied his principles and methods reliably to the facts at issue in this case. Contrary to Plaintiffs claims otherwise, Dr. Allens wealth of knowledge and analysis of the data, particularly his direct replication of Professor Rosenfelds study, does measure the outcomes of children living in same-sex and opposite-sex households, and find that there are actual differences in the outcomes of children based on family type. 3. Dr. Allens Opinions would not waste time or create confusion.

For the aforementioned reasons, Dr. Allen testimony would assist the trier of fact to understand the evidence and determine facts in issue. Rather than creating needless confusion, Dr. Allens testimony would

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clarify issues in this matter and address articulated rationales put forth by State Defendants in support of the Michigan Marriage Amendment. B. Dr. Joseph Price

Dr. Joseph Price will also provide expert testimony that directly refutes Plaintiffs claim that there is no difference for children raised by two heterosexual parents and children raised by same-sex parents. He, along with Dr. Allen, directly replicated the no difference study offered by Plaintiffs expert, Professor Rosenfeld, and he too can explain the flaws in that study. Because Dr. Prices testimony will assist this Court in understanding the articulated rationales the State Defendants put forth in support of Michigans Marriage Amendment and refute Plaintiffs arguments that there is no rational basis for the Amendment, it should not be excluded from the trial. 1. Dr. Price is Qualified to Offer an Expert Opinion in this Case

Again, Rule 702 does not require any specific credentials or qualifications; instead, it allows for expert qualification based on a wide-ranging spectrum of criteria, including knowledge, skill, 15

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experience, training, or education. Fed. R. Evid. 702. Dr. Price is an expert empirical economist, as evidenced by his report, CV, and deposition testimony. (See Exhibit 4, Dr. Joseph Price Expert Report, 2-7 ; see also Exhibit 2, Price Dep, 1/18/14, pp 65-67). Indeed, he specializes in the area of large data sets and has been entrusted on numerous occasionsmore than 40 timeswith the review of others research and methodology. (Exh 4, 4; Exh 2, pp 67). While it is true that Dr. Price has only published one paper in the specific area of outcomes for children being raised by same-sex couples, his research has focused on the broad topics of economics of the family and family structures. (Exh 5, pp 9, 28, 30, 47, 63). Further, this same critique can be made of Plaintiffs expert, Professor Rosenfeld, whose study Dr. Price replicated.1 Yet, Plaintiffs offer him as an expert in this case. Finally, Dr. Price does not need, as Plaintiffs insist, to be an expert in child outcomes to testify about his replication of Professor Rosenfelds study; rather, more important is his expertise in empirical Likewise, the fact that Dr. Price has never been qualified as an expert before is not determinative of whether he should be qualified in this case. Indeed, the same is true of Plaintiffs experts, Drs. Rosenfeld and Gatesneither have ever been qualified as an expert witness.
1

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methodsa qualification that Plaintiffs have not even challenged. For all of these reasons, Dr. Price is qualified to provide expert testimony in this case and he should not be excluded. 2. Dr. Prices Opinions are Relevant

Plaintiffs challenge regarding the relevance of Dr. Prices testimony is nothing more than a red herring. Plaintiffs assert that Dr. Price is not relevant because he, acknowledges that he can offer neither a layperson nor expert opinion on whether data on child outcomes is relevant to the questions surrounding same-sex marriage or second-party adoption for same-sex couples. (Br. In Support of Pl. Mot. in Limine to Bar Testimony of Allen and Price, Doc. #118, pp 10-11). But Dr. Price repeatedly made clear at his deposition that he was offering an expert opinion regarding outcomes of children being raised by different family types, based on his study. (Exh 5, pp 34, 35, 37-39.) He further stated that the effect his opinions may (or may not) have on the ultimate legal questions in this case is outside his area of expertise and a matter for the Court to decide. Dr. Prices testimony iswithout a doubtrelevant. He is one of three sociologists that replicated Professor Rosenfelds study. If 17

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Professor Rosenfelds opinions are relevant, then so are Dr. Prices. Accordingly, Plaintiffs relevancy challenge is meritless. 3. Dr. Prices Opinions are Reliable

Again, Plaintiffs argument that Dr. Prices opinions are unreliable must be rejected. First, Plaintiffs make the absurd insinuation that Dr. Prices opinions are unreliable because he is the third author on his study. (Br. In Support of Pl. Mot. in Limine to Bar Testimony of Allen and Price, Doc. #118, p 11.) However, as Dr. Price explained at his deposition, he, in fact, did most of the empirical work for the report. (Exh 5, p 27.) Thus, the ordering of the names has nothing to do with the breakdown of the work. Rather, it is merely a function of standard practice for economists to list authors alphabetically, and he was third in that ordering. (Exh 5, pp 27, 149.) Plaintiffs also argue that Dr. Prices opinions are unreliable because Plaintiffs experts disagree with them. However, this is not a proper basis for exclusion under Daubert. Indeed, Daubert neither requires nor empowers trial courts to determine which of several competing scientific theories has the best provenance. Ruiz-Troche v. Pepsi Cola, 161 F.3d 77, 85 (1st Cir. 1998). These are matters of 18

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weight and credibility, not admissibility. See Stollings, 725 F.3d at 76566. Therefore, Plaintiffs reliability arguments must be rejected.

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CONCLUSION AND RELIEF REQUESTED State Defendants respectfully request this Court deny Plaintiffs Motion in Limine to Exclude Testimony of Drs. Price and Allen. Respectfully submitted, Bill Schuette Attorney General /s/ Kristin M. Heyse Kristin M. Heyse Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 (P64353)

Dated: February 14, 2014

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CERTIFICATE OF SERVICE I hereby certify that on February 14, 2014, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.

Dated: February 14, 2014

/s/ Kristin M. Heyse Kristin M. Heyse Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 (P64353)

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