Sex Experts Frustrated by Daubert Ruling
We at blog 702 have limited ourselves to the general topic of expert evidence, and so we seldom have the opportunity to regale our readers with anything very titillating. Daubert being a dry subject, we are generally forced to watch in silent and jealous petulance as blawgs of broader topical scope offer seductive commentary on subjects with more sex appeal -- subjects like Kobe Bryant or the constitutional right to engage in sodomy.
Oh, yes, it would be nice, sometimes, to flash readers our best come-hither look and blog salaciously about matters of . . . of wider cultural interest. But it would be wrong. Expert testimony is deadly serious business, and this is no place to pander to baser human appetites.
On then with our dreary business. In a short and unpublished opinion, the Ninth Circuit has upheld the district court's exclusion of testimony from two putative experts on the swinging lifestyle. See Recreational Developments of Phoenix v. City of Phoenix, No. 02-16890 (9th Cir. Oct. 17, 2003). The underlying record is so veiled, in the Ninth Circuit's opinion, that it might as well be wearing a burkha. But luckily, the scandalous details can be gleaned from the district court's opinion in Recreational Developments of Phoenix, Inc. v. City of Phoenix, 220 F. Supp. 2d 1054 (D. Ariz. 2002).
Our story begins with Phoenix enacting an ordinance that forbade the operation of businesses providing an opportunity to view, or engage in, live sex acts. The owners and patrons of certain social clubs catering to the swinging lifestyle sued to enjoin enforcement of the ordinance. In furtherance of their crusade to uphold the constitutional right to swing, the plaintiffs offered two experts. The district court excluded the opinions of both, and awarded summary judgment to the city.
Plaintiffs' first expert, the holder of a doctorate in some unidentified subject, appears to have devoted his professional life to the study of matters carnal. E.g., his vitae reflected his presumably painstaking review of "over 2,000 anonymous self-analyses from [his] Human Sexuality courses." This expert sought to opine that swingers so conduct themselves as to minimize the risk of STD contagion. However, his testimony suffered from methodological flaccidity and was, by the expert's own admission, "primarily antidotal." These, in the district court's view, were fatal infirmities.
The second expert came from a discipline whose grasp of tawdry sexuality was beyond question. He was a journalist. But this expert too was faulted for want of methodological rigor. According to the district court, "[the witness] nowhere sets forth his plan of investigation, data collection, or analysis. For example, [he] reports the results of his 'inspection' of Plaintiffs' clubs, but gives no indication of when he visited them, how often, and whether the owners had notice of his visits. At a minimum, it would be useful to know whether [the witness], an investigative journalist, identified himself to Plaintiffs as a reporter or operated under cover."
We can't improve on that tag line.
Oh, yes, it would be nice, sometimes, to flash readers our best come-hither look and blog salaciously about matters of . . . of wider cultural interest. But it would be wrong. Expert testimony is deadly serious business, and this is no place to pander to baser human appetites.
On then with our dreary business. In a short and unpublished opinion, the Ninth Circuit has upheld the district court's exclusion of testimony from two putative experts on the swinging lifestyle. See Recreational Developments of Phoenix v. City of Phoenix, No. 02-16890 (9th Cir. Oct. 17, 2003). The underlying record is so veiled, in the Ninth Circuit's opinion, that it might as well be wearing a burkha. But luckily, the scandalous details can be gleaned from the district court's opinion in Recreational Developments of Phoenix, Inc. v. City of Phoenix, 220 F. Supp. 2d 1054 (D. Ariz. 2002).
Our story begins with Phoenix enacting an ordinance that forbade the operation of businesses providing an opportunity to view, or engage in, live sex acts. The owners and patrons of certain social clubs catering to the swinging lifestyle sued to enjoin enforcement of the ordinance. In furtherance of their crusade to uphold the constitutional right to swing, the plaintiffs offered two experts. The district court excluded the opinions of both, and awarded summary judgment to the city.
Plaintiffs' first expert, the holder of a doctorate in some unidentified subject, appears to have devoted his professional life to the study of matters carnal. E.g., his vitae reflected his presumably painstaking review of "over 2,000 anonymous self-analyses from [his] Human Sexuality courses." This expert sought to opine that swingers so conduct themselves as to minimize the risk of STD contagion. However, his testimony suffered from methodological flaccidity and was, by the expert's own admission, "primarily antidotal." These, in the district court's view, were fatal infirmities.
The second expert came from a discipline whose grasp of tawdry sexuality was beyond question. He was a journalist. But this expert too was faulted for want of methodological rigor. According to the district court, "[the witness] nowhere sets forth his plan of investigation, data collection, or analysis. For example, [he] reports the results of his 'inspection' of Plaintiffs' clubs, but gives no indication of when he visited them, how often, and whether the owners had notice of his visits. At a minimum, it would be useful to know whether [the witness], an investigative journalist, identified himself to Plaintiffs as a reporter or operated under cover."
We can't improve on that tag line.
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