Case 2:07-cv-02513-GMS Document 511 Filed 03/02/12 Page 1 of 5

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Timothy J. Casey (#013492) James L. Williams (#026402) SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C. 1221 East Osborn Road, Suite 105 Phoenix, AZ 85014-5540 Telephone: (602) 277-7000 Facsimile: (602) 277-8663 timcasey@azbarristers.com Counsel for Defendants Joseph M. Arpaio and the Maricopa County Sheriffs Office Thomas P. Liddy (#019384) MARICOPA COUNTY ATTORNEYS OFFICE Civil Services Division 222 N. Central, Suite 1100 Phoenix, Arizona 85004 602-506-8066 Co-counsel for Defendants Joseph M. Arpaio and the Maricopa County Sheriffs Office IN THE UNITED STATES DISTRICT COURT

12 FOR THE DISTRICT OF ARIZONA 13 Manuel de Jesus Ortega Melendres, et al., 14 Plaintiffs, 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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No. CV 07-02513-PHX-GMS vs. Joseph M. Arpaio, et al., Defendants. DEFENDANTS MOTION IN LIMINE NO. 2: EXPERT TESTIMONY REGARDING SUBCONSCIOUS / UNCONSCIOUS BIAS OR SUBJECTIVE THOUGHT OR MOTIVATION

Pursuant to Rules 701 through 705 of the Federal Rules of Evidence, Defendants move for entry of an order in limine precluding Plaintiffs from offering expert testimony or opinion as to: (a) purported subconscious bias theory in law enforcement officers; and (2) the alleged subconscious /unconscious bias or subjective thoughts or motivation on the part of any of the Defendants or their officers or employees. Defendants make this Motion because Plaintiffs expert Robert Stewart rendered opinions in his written reports and in his deposition that most officers that target a racial group for disproportionate law enforcement activities do so implicitly or unconsciously without even being aware of it and that some proportion of [MCSO] officers are probably acting on biases, whether they are conscious

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or unconscious. See Testimony Chart and Deposition of Robert Stewart at p. 41:25 to p. 42:23; p. 48:8-13, attached as Exhibit 1. Mr. Stewart, however, has no opinion as to whether Sheriff Arpaio or any MCSO employee involved in the traffic stops of the named Plaintiffs have such unconscious bias. See Testimony Chart and Deposition of Robert Stewart at pp. 48:14-25, 49;1-12; 67:4-6; 69:11-13, 69:22-24; 74:1-24, 75:1-6, 88:14-16, 99:3-6, 101:5-8, 104:19-25, 105:1-2, and 110:18-23, attached as Exhibit 2. Mr. Stewarts opinions are irrelevant, lack foundation, speculative, unreliable, and unfairly prejudicial. Expert testimony is only admissible if it is sufficiently reliable and helpful. Daubert v. Merrell Dow Pharms., 509 U.S. 579, 593 (1993) (identifying factors for admissibility); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (district court must determine that testimony is sufficiently reliable based upon Daubert factors); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011) (district court must exclude junk science that does not meet Federal Rule of Evidence 702's reliability standards by making a preliminary determination that the expert's testimony is reliable). An experts opinion as to another persons unexpressed thoughts, motivation, or state of mind at a particular time is inadmissible because such testimony is unhelpful, constitutes an undue waste of time, is speculative, invades the province of the finder of fact, and fails to comply with the specialized knowledge and reliability requirements of Rule 702 of the Federal Rules of Evidence. In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 547 (S.D.N.Y. 2004) (Inferences about the intent or motive of parties or others lie outside the bounds of expert testimony); see also In re Diet Drugs Prods. Liab. Litig., MDL No. 1203, 2000 U.S. Dist. LEXIS 9037 (E.D. Pa. June, 20, 2000); Robinson v. Hartzell Propeller, Inc., 326 F. Supp. 2d 631, 647 (E.D. Pa. 2004); Safeway, Inc. v. Sugarloaf P'ship, LLC, 423 F. Supp. 2d 531, 538 (D. Md. 2006) (To the extent his report speaks to the intent of the parties, it is unhelpful because Mr. Halper was not present and has no personal knowledge of the parties intent.); Gallatin Fuels, Inc. v. Westchester Fire Ins. Co., 410 F. Supp. 2d 417, 423 (W.D. Pa. 2006) (expert may not testify as to another persons thoughts or subjective intent);
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Steadfast Ins. Co. v. Auto Mktg. Network, Inc., 2004 U.S. Dist. LEXIS 6938, at *20-22 (N.D. Ill. Jan. 26, 2004) (same); Holman Enters. v. Fid. & Guar. Ins. Co., 563 F. Supp. 2d 467, 472, 473 (D.N.J. 2008) (expert opinion formed in part upon his perception of [a persons] subjective intent was speculative and did not meet the fit requirement under Rule 702 of the Federal Rules of Evidence, referring to connection between the scientific research or test result to be presented and particular disputed factual issues in the case); Tilton v. Capital Cities/ABC, 938 F. Supp. 751, 753 (N.D. Okla. 1995) (expert opinion as to the subjective state of mind of Defendants in making [] broadcasts of which the expert has no personal knowledge does not shed[] any light on the mental state of the defendants and fails to present an issue where special skills or knowledge are needed to understand the facts and draw a conclusion from them). The Supreme Court recently held that an experts testimony as to subconscious/culture bias can be safely disregarded and does nothing to advance [the plaintiffs] case and, accordingly, was worlds away from constituting significant proof of the existence of a discriminatory policy because the expert could not establish what percentage of the employment decisions made by Defendant were infected with the alleged stereotyped thinking upon which the expert opined. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553 (2011). In fact, in Dukes, the experts conclusions elicited criticism from the very scholars on whose conclusions he relies for his social-framework analysis. Id. at 2554 n.8. DATED this 2nd day of March, 2012. SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C. /S/Timothy J. Casey ______ Timothy J. Casey James L. Williams 1221 E. Osborn Rd., Suite 105 Phoenix, Arizona 85014 Telephone: (602) 277-7000 Facsimile:(602) 277-8663 Counsel for Defendants Joseph M. Arpaio and the Maricopa County Sheriffs Office
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CERTIFICATE OF SERVICE I hereby certify that on March 2, 2012, I electronically transmitted the attached document to the Clerks Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: The Honorable G. Murray Snow United States District Court 401 West Washington Street, Phoenix, Arizona 85003-2158 Stanley Young, Esq. Andrew Carl Byrnes, Esq. COVINGTON & BURLING, LLP 333 Twin Dolphin Road Redwood Shores, California 94065 Counsel for Plaintiffs Daniel Pochoda, Esq. Annie Lai, Esq. ACLU FOUNDATION OF ARIZONA 3707 N. 7th Street, Suite 235 Phoenix, Arizona 85014 Counsel for Plaintiffs Cecillia Wang AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111 Counsel for Plaintiffs Andre Segura, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 Counsel for Plaintiffs Nancy Ramirez, Esq. MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND 634 S. Spring Street, 11th Floor Los Angeles, California 90014 Counsel for Plaintiffs Thomas P. Liddy Deputy County Attorneys, Civil Services Division Maricopa County Attorneys Office 222 N. Central, Suite 1100 Phoenix, Arizona 85004 Co-counsel for Defendants Joseph M. Arpaio and the Maricopa County Sheriffs Office
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_/S/Eileen Henry _____ Eileen Henry, Paralegal SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C.