Opinion
Case No. 4:18-cv-00554-SAL
12-01-2020
NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, INC., et al., Plaintiffs, v. CITY OF MYRTLE BEACH, et al., Defendant
Peter Wilborn, Law Office of Peter Wilborn, Charleston, SC, Angela A. Groves, Pro Hac Vice, Kali Jones Schellenberg, Pro Hac Vice, Reed N. Colfax, Pro Hac Vice, Tara K. Ramchandani, Pro Hac Vice, Relman Colfax PLLC, Dorian Lawrence Spence, Pro Hac Vice, Maryum Jamal Jordan, Pro Hac Vice, Lawyers Committee for Civil Rights Under Law, Washington, DC, for Plaintiffs. James Richard Battle, II, Battle Vaught and Howe, Michael Warner Battle, Battle Law Firm, Conway, SC, for Defendant.
Peter Wilborn, Law Office of Peter Wilborn, Charleston, SC, Angela A. Groves, Pro Hac Vice, Kali Jones Schellenberg, Pro Hac Vice, Reed N. Colfax, Pro Hac Vice, Tara K. Ramchandani, Pro Hac Vice, Relman Colfax PLLC, Dorian Lawrence Spence, Pro Hac Vice, Maryum Jamal Jordan, Pro Hac Vice, Lawyers Committee for Civil Rights Under Law, Washington, DC, for Plaintiffs.
James Richard Battle, II, Battle Vaught and Howe, Michael Warner Battle, Battle Law Firm, Conway, SC, for Defendant.
OPINION AND ORDER
Sherri A. Lydon, United States District Judge
This matter is before the Court on Defendant's third (Daubert) motion in limine to exclude the expert testimony of Dr. Charles A. Gallagher. [ECF No. 195]. Plaintiffs filed a response to the motion, ECF No. 199, and Defendant replied, ECF No. 200. The Court conducted a Daubert hearing on November 30, 2020. Therefore, the motion is ripe for review.
DR. GALLAGHER'S PROFFERED TESTIMONY
In his report, Dr. Gallagher summarizes the demographics of the Myrtle Beach area and the sociological research on racial attitudes and stereotypes in the United States and South Carolina. [ECF No. 195-3 p.3]. He illustrates how racial stereotypes shape beliefs about racial groups and opines that such views can lead to discriminatory behavior directed at racial minorities. Id. According to the report and Dr. Gallagher's testimony, empirical studies show that certain specific behaviors indicate racial bias. Id. at 12. Dr. Gallagher identifies such behavior in specific actions taken by alleged decisionmakers. Id. at 13. Based on Dr. Gallagher's understanding of the relevant literature and studies, he observed behavior by alleged decisionmakers that indicates racial bias. Id. Dr. Gallagher opines that "the City of Myrtle Beach's traffic plan and increased law enforcement during Black Bike Week should be evaluated in light of an established body of research on how the dominant group (in this case whites in and around Myrtle Beach) seek to minimize the presence of African Americans and maintain an environment that is majority white and under white control." Id. at 3.
LEGAL STANDARD
Under Rules 104(a) and 702 of the Federal Rules of Evidence, "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Rule provides that all types of expert testimony present questions of admissibility for the trial court in deciding whether the evidence is reliable and helpful. Fed. R. Evid. 702 (advisory committee notes). Consequently, the admissibility of all expert testimony is governed by the principles of Rule 104(a). Id. Under that Rule, the proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence. See Bourjaily v. United States , 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987).
The trial judge must first ensure the proffered expert testimony is relevant. Daubert , 509 U.S. at 589, 113 S.Ct. 2786. The testimony is relevant if it logically advances a material aspect of the proposing party's case. Daubert v. Merrell Dow Pharmaceuticals, Inc. , 43 F.3d 1311, 1315 (9th Cir. 1995) (on remand). Further, the expert's scientific, technical, or other specialized knowledge must help the trier of fact understand the evidence or determine a fact in issue. Fed. R. Evid. 702(a).
The trial judge must also ensure the proffered expert testimony is reliable. Daubert , 509 U.S. at 589, 113 S.Ct. 2786. Expert testimony is reliable if: (1) the testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert has reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702(b)-(d). "This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid," Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786, and whether the expert has "faithfully appl[ied] the methodology to facts," Roche v. Lincoln Prop. Co., 175 F.App'x. 597, 602 (4th Cir. 2006). When conducting this assessment, courts consider "whether a theory or technique ... can be (and has been) tested," "whether the theory or technique has been subjected to peer review and publication," the "known or potential rate of error," the "existence and maintenance of standards controlling the technique's operation," and whether the theory or technique has garnered "general acceptance." Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786 ; accord United States v. Hassan, 742 F.3d 104, 130 (4th Cir. 2014). However, these factors are neither definitive nor exhaustive. United States v. Fultz, 591 F.App'x. 226, 227 (4th Cir. 2015), cert. denied, 575 U.S. 1034, 135 S. Ct. 2370, 192 L.Ed.2d 159 (2015). They "merely illustrate[ ] the types of factors that will bear on the inquiry." Hassan, 742 F.3d at 130.
In applying these principles, "the measure of intellectual rigor will vary by the field of expertise, and the way of demonstrating expertise will also vary." United States v. McLean , 695 F.App'x 681, 684 (4th Cir. 2017) (citing Tyus v. Urban Search Mgmt. , 102 F.3d 256, 263 (7th Cir. 1996) ). Indeed, "genuine expertise may be based on experience or training." Id. The Advisory Committee notes to Rule 702 specifically note that "[i]n certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony." Fed. R. Evid. 702 (advisory committee notes). Social science testimony, like other expert testimony proffered under Rule 104(a) for admission under Rule 702, must be tested to be sure that the person possesses genuine expertise in a field and that his testimony adheres to the same standards of intellectual rigor that are demanded in his professional work. Tyus, 102 F.3d at 263.
The Court is mindful that the Daubert inquiry involves "two guiding, and sometimes competing, principles." Fulton v. Nisbet , No. CV 2:15-4355-RMG, 2018 WL 603486, at *1–2 (D.S.C. Jan. 29, 2018) (citing Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) ). "On the one hand ... Rule 702 was intended to liberalize the introduction of relevant expert evidence," id., and "the trial court's role as a gatekeeper is not intended to serve as a replacement for the adversary system." United States v. Stanley, 533 F.App'x. 325, 327 (4th Cir. 2013). On the other hand, "[b]ecause expert witnesses have the potential to be both powerful and quite misleading, it is crucial that the district court conduct a careful analysis into the reliability of the expert's proposed opinion." Fulton , 2018 WL 603486, at *1–2 (citing Fultz, 591 F.App'x at 227 ).
DISCUSSION
I. The Proffered Expert Testimony is Relevant.
To be relevant, expert testimony must logically advance a material aspect of the proposing party's case. Daubert , 43 F.3d 1311, 1315 (9th Cir. 1995) (on remand). In this case, the plaintiffs seek to prove discriminatory classification based on race by showing a discriminatory motive in the decision-making body. In order to show a discriminatory motive in the decision-making body, the plaintiffs must show that the official act was enacted or maintained for a discriminatory purpose. Washington v. Davis , 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Discriminatory purpose implies more than volition or awareness of consequences. Pers. Adm'r of Massachusetts v. Feeney , 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). It implies that the decisionmaker selected or reaffirmed a course of action, at least in part, because of its adverse effects upon an identifiable group. Id. (emphasis added).
Defendant argues that Dr. Gallagher's opinions are not relevant to the question of discriminatory intent because his opinions concern the general history of discrimination against people of color rather than the intent of the specific decision-making body in the present case. [ECF No. 195 p.1]. Plaintiffs counter that Dr. Gallagher's testimony will help the jury evaluate the City's proffered reasons for its operations plan, especially as they relate to crowd size and the relative danger posed by Black Bike Week. [ECF No. 199 p.8].
Dr. Gallagher's testimony will help the jury understand a material aspect of the plaintiffs’ argument: race was a motivating factor in the decision to implement the challenged Operations Plan. At the Daubert hearing, Dr. Gallagher testified that he will explain sociological research on racial stereotyping and discrimination and opine that specific, documented types of racial bias influenced the City's treatment of Black Bike Week. In his report and his testimony, Dr. Gallagher identified specific actions by alleged decisionmakers that he opines indicate racial bias. See [ECF No. 195-3 p.13]. This testimony logically advances the central argument of the plaintiffs’ case.
Further, expert testimony will be helpful to the jury because the sociological indicators associated with racial stereotyping and discrimination are not necessarily within the comprehension of laypersons. See Weissenberger's Federal Evidence § 702.3 (Matthew Bender, 7th ed.) ("Expert testimony concerning matters beyond the comprehension of laypersons will almost always assist the trier of fact ..."). For example, Dr. Gallagher will testify that the concept of "hypervisibility" affected the decision to implement the challenged Operations Plan. "Hypervisibility" is likely a foreign concept to those outside of the sociology community. Therefore, expert testimony will be helpful in explaining plaintiffs’ theory that the concept of "hypervisibility" shows bias in the City's decision-making process. Accordingly, the Court finds that Dr. Gallagher's proffered testimony is relevant and will be helpful to the trier of fact.
II. The Proffered Expert Testimony is Reliable
a. The Reasoning Underlying the Proffered Expert Testimony is Scientifically Valid.
Social Science testimony is valid when an expert with sufficient credentials identifies his methodology as one generally accepted in the social sciences. United States v. Young , 916 F.3d 368, 380 (4th Cir.), cert. denied, ––– U.S. ––––, 140 S. Ct. 113, 205 L.Ed.2d 33 (2019). One accepted method is a comparative method, focusing on primary sources, then comparing conclusions against secondary sources and "events on the ground." Id. (citing United States v. Hammoud , 381 F.3d 316 (4th Cir. 2004) ) (vacated on other grounds). In evaluating an expert's method, the court must consider whether the conclusions are testable, subjected to peer review or publication, produced by a reliable method using some discernable technique, and the result of a generally accepted methodology or process. Paine ex rel. Eilman v. Johnson , No. 06 C 3173, 2010 WL 749848, at *3 (N.D. Ill. Feb. 25, 2010) (citing Zenith Electronics Corp. v. WH-TV Broadcasting Corp., 395 F.3d 416, 418 (7th Cir. 2005) ).
Defendant does not dispute Dr. Gallagher's credentials, so the issue is whether Dr. Gallagher's method is one accepted in the social sciences. At the hearing, Dr. Gallagher listed a variety of primary and secondary sources that he used to conduct his study and form his opinion. He stated that he conducted a "case study" on the treatment of Black Bike Week. This involved consideration of quantitative data like census data, demographic data, and secondary sources as well as qualitative data like depositions, comprehensive plans, and minutes of meetings regarding the decisions. He purported to use all data at his disposal to build a series of sources to which he could apply the challenged decisions and show context. This social science methodology is considered scientifically valid according to Fourth Circuit precedent. See Hammoud , 381 F.3d 316, 337 (affirming the admission of expert testimony where a social scientist "collect[ed] as much information as possible and [ ] balance[d] each new incoming piece of information against the body of information that [he] built to that point.").
b. Dr. Gallagher has Faithfully applied the Methodology to the Facts of this Case.
A sociology expert must apply his generally accepted methodology to the facts of the case to support the testimony he intends to give. Hammoud , 381 F.3d at 337. Reliable social science findings are subject to peer review to ensure their soundness. Id.
Dr. Gallagher testified that his methodology and findings in his study of the City of Myrtle Beach's treatment of Black Bike Week would be the proper subject of peer review in the sociology community. He further noted that his research in this case would be perfectly capable of submission to an academic journal in his field. Dr. Gallagher's testimony shows that his findings in this case reflect the same reliable methodology that is generally accepted in the sociology community. Social science findings are reliable when an expert follows this process in reaching his conclusions regarding the case. Hammoud , 381 F.3d at 337.
CONCLUSION
The Court finds that Dr. Gallagher's testimony meets the standard for admissibility under Federal Rule of Evidence 702. Dr. Gallagher's testimony is sufficiently relevant and reliable to assist the trier of fact. Accordingly, Defendant's motion to exclude the expert testimony of Dr. Gallagher, ECF No. 195, is DENIED.
IT IS SO ORDERED.