2:12-cv-00887 #56

7/29/2019 2:12-cv-00887 #56

1/154

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

Paul D. Clement (DC Bar 433215)

[email protected]

H. Christopher Bartolomucci (DC Bar 453423)

[email protected]

Nicholas J. Nelson (DC Bar 1001696)

[email protected] H. McGinley (DC Bar 1006943)

[email protected]

BANCROFT PLLC

1919 M Street, N.W.

Suite 470

Washington, D.C. 20036

202-234-0090 (telephone)

202-234-2806 (facsimile)

Of Counsel:

Kerry W. Kircher, General Counsel (DC Bar 386816)

[email protected]

William Pittard, Deputy General Counsel (DC Bar 482949)

[email protected]

Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000)

[email protected]

Todd B. Tatelman, Assistant Counsel (VA Bar 66008)

[email protected] Beth Walker, Assistant Counsel (DC Bar 501033)

[email protected]

Eleni M. Roumel, Assistant Counsel (SC Bar 75763)

[email protected]

OFFICE OF GENERAL COUNSEL,

U.S. HOUSE OF REPRESENTATIVES

219 Cannon House Office Building

Washington, D.C. 20515202-225-9700 (telephone)

202-226-1360 (facsimile)

Counsel for Intervenor-Defendant Bipartisan

Legal Advisory Group of the U.S. House of Representatives

Case 2:12-cv-00887-CBM-AJW Document 56 Filed 11/06/12 Page 1 of 26 Page ID #:735

7/29/2019 2:12-cv-00887 #56

2/154

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

Western Division

)

TRACEY COOPER-HARRIS and ) No. 2:12-cv-00887-CBM (AJWx)MAGGIE COOPER-HARRIS, )

)

Plaintiffs, )

)

v. )

)

UNITED STATES OF AMERICA, et al., )

)

Defendants, )

)

BIPARTISAN LEGAL ADVISORY )

GROUP OF THE U.S. HOUSE )

OF REPRESENTATIVES, ) Hearing: December 10, 2012

) Time: 10:00 a.m.

Intervenor-Defendant. ) Hon. Consuelo B. Marshall

)

MEMORANDUM OF

POINTS AND

AUTHORITIES IN

SUPPORT OF MOTION TO

EXCLUDE THE EXPERT

TESTIMONY OF DR.

LAWRENCE J. KORB AND

MAJ. GEN. (RET.) DENNIS

LAICH


7/29/2019 2:12-cv-00887 #56

3/154

i

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF CONTENTS

I.BACKGROUND ................................................................................................... 2II.ARGUMENT ........................................................................................................ 5

A.Legal Standard under Federal Rule of Evidence 702 ................................. 5B.The Proffered Opinions Will Not Assist the Trier of Fact Because

They Are Neither Based on Specific Facts nor the Product of Any

Discernible Methodology ........................................................................... 7

1.The Witnesses General Statements Regarding EmployeeIncentives and Motivation Are Inadmissible. .................................. 8

2.The Witnesses Conclusions About the Overall Impact of DOMAand Title 38 on Military Goals Also Are Inadmissible. ................. 11

3.The Testimony Cannot Be Supported by Vague Assertions ofExperience .................................................................................. 12

C.Because They Are Based on Fundamental Misunderstandings of theEffects of DOMA Section 3 and the Title 38 Spousal Definitions, the

Opinions Are Neither Reliable nor Relevant. .......................................... 14

1.The Opinions Are Predicated on an Incorrect LegalUnderstanding Regarding Uniform Treatment of Same-SexMarriages in the Absence of DOMA Section 3 and Title 38s

Spousal Definitions. ....................................................................... 14

2.Opinions Regarding Family Readiness Groups Reflect anIncorrect Application of DOMA Section 3 .................................... 16

III.CONCLUSION .................................................................................................. 18CERTIFICATE OF SERVICE


7/29/2019 2:12-cv-00887 #56

4/154

ii

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF AUTHORITIES

Statutes and Federal Rules

1 U.S.C. 7 ................................................................................................................ 1

10 U.S.C. 101 ........................................................................................................ 15

38 U.S.C. 101 ...................................................................................................... 1-2

38 U.S.C. 103 ........................................................................................................ 15

Fed. R. Evid. 702 ................................................................................................. 5, 14

Cases

Arjangrad v. JPMorgan Chase Bank, NA,

No. 3:10-cv-01157, 2012 WL 1890372 (D. Or. May 23, 2012) ............. 10, 11

Beech Aircraft Corp. v. United States,

51 F.3d 834 (9th Cir.1995) ............................................................................ 10

Clark v. Takata Corp.,

192 F.3d 750 (7th Cir. 1999) ........................................................................... 7

Daubert v. Merrell Dow Pharm., Inc.,43 F.3d 1311 (9th Cir. 1995) ......................................................................... 13

Daubertv. Merrell Dow Pharm., Inc.,

509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) .................... 5, 6, 16

Gen. Elec. Co. v. Joiner,

522 U.S. 136, 118 S.Ct. 512, 139 L. Ed. 2d 508 (1997) ............................... 13

Guidroz-Brault v. Mo. Pac. R. Co.,

254 F.3d 825 (9th Cir. 2001) ........................................................................... 5

Kumho Tire Co., Ltd. v. Carmichael,

526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) .............................. 6

Lewis v. CITGO Petroleum Corp.,

561 F.3d 698 (7th Cir. 2009) ........................................................................... 7


7/29/2019 2:12-cv-00887 #56

5/154

iii

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

McCollen v. UPS Ground Freight Inc.,

No. 11-cv-0961, 2012 WL 3758837 (D. Ariz. Aug. 30, 2012) ..................... 10

Mueller v. Auker,

No. 04-civ-399, 2010 WL 2265867 (D. Idaho June 4, 2010) ....................... 10

Primiano v. Cook,

598 F.3d 558 (9th Cir. 2010) ........................................................................... 6

Rondor Music Intl Inc. v. TVT Records LLC,

No. 05-cv-2909,2012 WL 5105272 (C.D. Cal. Aug. 21, 2006) ................... 11

Swendsen v. Corey,

No. 4:09-cv-00229, 2012 WL 465722 (D. Idaho Feb. 13, 2012) .................. 10

United States v. Arenal,

768 F.2d 263 (8th Cir. 1985) ........................................................................... 8

United States v. Frantz,

No. 02-cr-01276, 2004 WL 5642909 (C.D. Cal. Apr. 23, 2004) .................. 13

United States v. Freeman,

498 F.3d 893 (9th Cir. 2007) ........................................................................... 6

United States v. Hankey,

203 F.3d 1160 (9th Cir. 2000) ......................................................................... 7

United States v. Hanna,

293 F.3d 1080 (9th Cir. 2002) ....................................................................... 10

United States v. Hermanek,

289 F.3d 1076 (9th Cir. 2002) ................................................................... 7, 13

United States v. Morales,

108 F.3d 1031 (9th Cir. 1997) ......................................................................... 8

United States v. Vallejo,237 F.3d 1008(9th Cir. 2001) ......................................................................... 8

White v. Ford Motor Co.,

312 F.3d 998 (9th Cir. 2002) ......................................................................... 10


7/29/2019 2:12-cv-00887 #56

6/154

iv

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Other Authorities

Fed. R. Evid. 702 advisory committees note ................................................ 8, 12, 13

Defense of Marriage Statutes and Constitutional Provisions (Statutes),

Thompson Reuters (Aug. 2012) .................................................................... 15


7/29/2019 2:12-cv-00887 #56

7/154

1

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S.

House of Representatives (House) respectfully brings this motion seeking an

entry of an order by this Court excluding from the record the reports and testimony

of two individuals, Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich, who

Plaintiffs Tracey Cooper-Harris and Maggie Cooper-Harris (Plaintiffs) have

offered as experts. Because neither Dr. Korb nor Gen. Laich offers opinions that

will reliably assist the trier of fact, their testimony must be excluded from any

dispositive motions and responses thereto, and/or at trial.

Plaintiffs, a same-sex couple married under California law, challenge on

equal protection grounds the constitutionality of (i) Section 3 of the Defense ofMarriage Act (DOMA), 1 U.S.C. 7, and (ii) 38 U.S.C. 101(3) & (31), in the

context of claims for veterans benefits. See Compl. for Declaratory, Injunctive,

and Other Relief 3, 6-11, 65, 69, Prayer for Relief (Feb. 1, 2012) (ECF No. 1)

(Compl.).

DOMA Section 3 provides:

In determining the meaning of any Act of Congress, or of

any ruling, regulation, or interpretation of the various

administrative bureaus and agencies of the United States,

the word marriage means only a legal union between

one man and one woman as husband and wife, and the

word spouse refers only to a person of the opposite sex

who is a husband or a wife.

1 U.S.C. 7. Sections 101(3) and (31) of Title 38 are similar (albeit limited in

their reach to one title of the U.S. Code); those sections provide, respectively, that:

(3) The term surviving spouse means . . . a person of

the opposite sex who was the spouse of a veteran at the

time of the veterans death, and who lived with the


7/29/2019 2:12-cv-00887 #56

8/154

2

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

veteran continuously from the date of marriage to the

date of the veterans death . . . .

(31) The term spouse means a person of the opposite

sex who is a wife or husband.

Attempting to support their claims, Plaintiffs have submitted the reports of

six proposed expert witnesses, including two relevant to this motion.1

Dr. Korb

and Gen. Laich both purport to opine on the impact on the military of DOMA

Section 3 and the Title 38 spousal definitions. However, neither of these putative

experts opinions is based on sufficient facts or data, neither is the product of any

discernible methodology, and both are based on fundamental misunderstandings ofthe legal effects of DOMA and Title 38. Accordingly, their proposed expert

testimony must be stricken because it is unreliable and irrelevant, and as such it

will not assist the trier of fact.

I. BACKGROUND

Gen. Laich and Dr. Korb propose to offer very similar (indeed, repetitive)

opinions. They both assert that DOMA and the Title 38 spousal definitions are

unfairly discriminatory, and as a result, the class of gays and lesbians against

whom these provisions discriminate will tend to be less likely in some

unquantified way to enlist in the military, or to re-enlist if they are or were

already in service. Rule 26(a)(2)(B) Expert Rep. of Maj. Gen. (Ret.) Dennis Laich

18, 21, 26 (Laich Report), attached as Ex. A (without exhibits); Rule

26(a)(2)(B) Expert Rep. of Dr. Lawrence J. Korb 19, 28-29 (Korb Report),

attached as Ex. B (without exhibits). And both claim that servicemembers with

state-law same-sex spouses are distracted from their military missions and military

unit cohesion is harmed again, in an unquantified way because their state-law

1The four other experts identified by Plaintiffs have also submitted reports in other

DOMA cases. The House does not contest those reports in this motion.


7/29/2019 2:12-cv-00887 #56

9/154

3

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

spouses are not eligible for spousal benefits. Laich Rep. 28-33; Korb Rep.

21, 24, 27, 30.

When questioned as to how they reached these conclusions, neither Gen.

Laich nor Dr. Korb claimed to have conducted any tests or reviewed any literature

regarding DOMA or the Title 38 spousal definitions. And neither invoked any

facts, data, or methodology to support his conclusions, other than the simple

assertions that

(1) The spousal benefits offered to married opposite-sex military couples areintended to incentivize military service, see Dep. of Dr. Lawrence J.

Korb at 44:25-45:16, 51:9-17, 57:1-21 (Oct. 16, 2012) (KorbDeposition), excerpts attached as Ex. C; Dep. of Maj. Gen. (Ret.)

Dennis Laich at 42:20-43:13, 59:22-60:5 (Oct. 12, 2012) (Laich

Deposition), excerpts attached as Ex. D; and

(2) Servicemembers and potential recruits will be unhappy and less receptiveto the military and its mission if they feel it is treating them, or would

treat them, unfairly. Laich Rep. 18; Korb Dep. 49:15-50:17, 57:1-

59:10, 60:18, 64:17-66:9.

Neither witness made any serious effort to document these observations in the

military context or support them with actual military data. Instead, both Gen.

Laich and Dr. Korb claimed to have derived these insights, and their application to

the military context, from their experience in the military. Laich Dep. 17:23-

18:25, 67:18-68:25, 76:11-22; Korb Dep. 54:22-56:22.

Moreover, Dr. Korb and Gen. Laich both candidly admitted the absence of

any verifiable and reliable data that would support their opinions, either regarding

the attitudes of individual servicemembers and recruits or regarding the aggregate

effects of those attitudes on the military as a whole. Neither witness claimed to be

aware of any empirical data regarding a whole host of relevant topics, including:


7/29/2019 2:12-cv-00887 #56

10/154

4

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The number of same-sex couples with marriage certificates in the military,or the ranks or skills of such servicemembers, Korb Dep. 53:11-18; Laich

Dep. 52:23-53:5, 59:12-17, 86:25-87:2 (only a smattering of anecdotals

on this topic);

Such servicemembers awareness of the spousal-benefits eligibility rules orthe intensity of their feelings about them, Korb. Dep. 47:14-19;

The actual quantifiable aggregate impact of DOMA and Title 38 onrecruiting, retention, or troop readiness. Korb Dep. 54:3-19; Laich Dep.

40:16-41:10, 44:5-8 (no statistical analyses support Gen. Laichs opinion),

59:12-60:9 (no studies or reports quantifying effects on enlistment, but Ihave anecdotals), 61:17-20 (same, for re-enlistment), 68:21-25, 73:20-25,

75:4-11 (not aware of any studies on the impact of spousal benefits on

recruits enlistment decisions), 76:11-22 (no way to quantify DOMAs or

Title 38s effects on recruiting); or

Any quantifiable cost-benefit analysis of the impact of the spousaldefinitions, Laich Dep. 66:17-22.

Indeed, despite his opinions regarding recruitment, Dr. Korb admitted that we

dont know whether DOMA or Title 38s spousal definitions have caused anyone

at all to decide not to join the military; he merely opined that some people may

not enlist because of these provisions.2

Korb Dep. 58:12-20; see also Laich Dep.

40:6-10 (Gen. Laich conducted no statistical analysis for purposes of his report),

104:6-19 (I did not review any specific studies to generate this report.).

2Moreover, Dr. Korbs own understanding is that the military reflects the overall U.S.

population in terms of the percentage of gay and lesbian servicemembers. Korb Dep. 102:15-22;

102:25-103:5. Dr. Korb does not explain how his understanding of a proportional representation

of gay and lesbian servicemembers squares with his opinion that DOMA and the Title 38 spousal

definitions discourage enlistment. The House submits that as a practical matter, it cannot.


7/29/2019 2:12-cv-00887 #56

11/154

5

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

II. ARGUMENT

A. Legal Standard under Federal Rule of Evidence 702.

Pursuant to Federal Rule of Evidence 702:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if:

(a) the experts scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;(c) the testimony is the product of reliable principles and

methods; and

(d) the expert has reliably applied the principles and methods

to the facts of the case.

Fed. R. Evid. 702. The Supreme Court has made clear that the word knowledge

connotes more than subjective belief or unsupported speculation. Daubertv.

Merrell Dow Pharm., Inc., 509 U.S. 579, 590, 113 S. Ct. 2786, 125 L. Ed. 2d 469

(1993); see Guidroz-Brault v. Mo. Pac. R. Co., 254 F.3d 825, 829 (9th Cir. 2001).

It also:

has established that Federal Rule of Evidence 702

charges trial judges with the task of ensuring that any

and all scientific testimony or evidence admitted is not

only relevant, but reliable. The gatekeeping role

exercised by district courts entails a preliminary

assessment of whether the reasoning or methodology

underlying the testimony is . . . valid and of whether that


7/29/2019 2:12-cv-00887 #56

12/154

6

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

reasoning or methodology properly can be applied to the

facts in issue.

United States v. Freeman, 498 F.3d 893, 901 (9th Cir. 2007) (ellipsis in original)

(quotingDaubert, 509 U.S. at 589, 592-93). This role applies to all expert

testimony, not only to scientific expert testimony. Id. (citing Kumho Tire Co.,

Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999)).

Accordingly, when a party proffers expert-type testimony, the trial court must

assure that the expert testimony both rests on a reliable foundation and is relevant

to the task at hand. Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010)

(quotingDaubert, 509 U.S. at 597).In the Ninth Circuit, the admissibility of expert opinion testimony generally

turns on the following determinations by the trial judge:

Whether the opinion is based on scientific, technical,or other specialized knowledge;

Whether the experts opinion would assist the trier offact in understanding the evidence or determining a

fact in issue;

Whether the expert has appropriate qualifications i.e., some special knowledge, skill, experience,

training or education on that subject matter.

Whether the testimony is relevant and reliable. Whether the methodology or technique the expert uses

fits the conclusions . . . .

Whether its probative value is substantiallyoutweighed by the risk of unfair prejudice, confusion

of issues, or undue consumption of time.


7/29/2019 2:12-cv-00887 #56

13/154

7

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000) (internal citations

omitted).

B. The Proffered Opinions Will Not Assist the Trier of Fact Because

They Are Neither Based on Specific Facts nor the Product of AnyDiscernible Methodology.

The reports and proposed testimony of Gen. Laich and Dr. Korb are not

reliable, relevant, or helpful to the trier of fact. To be sure, both men appear to

have experience regarding military affairs generally. But bare qualifications

alone cannot establish the admissibility of scientific expert testimony. United

States v. Hermanek, 289 F.3d 1076, 1093 (9th Cir. 2002). Even [a] supremelyqualified expert cannot waltz into the courtroom and render opinions unless those

opinions are based upon some recognized scientific method and are reliable and

relevant under the test set forth by the Supreme Court inDaubert. Lewis v.

CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009) (quoting Clark v.

Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir. 1999)). But that is precisely what

Gen. Laich and Dr. Korb seek to do here. Their opinions are based on essentially

no facts or data; have not resulted from the application of any discernible

methodology, let alone one that could be or has been proven reliable; and are so

generalized and unquantified that they simply do not qualify as expert knowledge.

The proposed testimony can essentially be divided into two components.

First, the witnesses explain in general terms that availability of spousal benefits for

military servicemembers is an incentive for servicemembers to enlist and remain in

the armed forces; that their unavailability would tend to be a relative disincentive;

that people tend to be less likely in some unquantified way to work for an

employer who they feel does or would treat them unfairly; and that people who are

distracted by concerns about providing for their loved ones may sometimes be less

effective employees or servicemembers, again in some unquantified way. See

suprapp. 2-4. Second, from these generalized observations, both witnesses make


7/29/2019 2:12-cv-00887 #56

14/154

8

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the unexplained analytical leap to the conclusion that the current definitions of

spouse used in federal law cause harm again unquantified to the militarys

goals. See id. Neither of these conclusions is properly supported expert evidence.

1. The Witnesses General Statements Regarding EmployeeIncentives and Motivation Are Inadmissible.

There is no more certain test for determining when experts may be used

than the common sense inquiry whether the untrained layman would be qualified

to determine . . . the particular issue without enlightenment from those having a

specialized understanding of the subject involved in the dispute. Fed. R. Evid.

702 advisory committees note. Accordingly, expert testimony is not helpful tothe trier of fact, and thus not relevant, when it addresses an issue that is within the

common knowledge of the average layman. United States v. Morales, 108 F.3d

1031, 1039 (9th Cir. 1997); see alsoUnited States v. Vallejo, 237 F.3d 1008,1019

(9th Cir. 2001) (To be admissible, expert testimony must . . . address an issue

beyond the common knowledge of the average layman . . . .); United States v.

Arenal, 768 F.2d 263, 269 (8th Cir. 1985) (proffered expert evidence is subject to

exclusion if the subject matter is within the knowledge or experience of the jury,

because the testimony does not then meet the helpfulness criterion of Rule 702).

Here, the sweeping generalities invoked by the proposed witnesses,

regarding the relationship between employees benefits and their incentives and

performance, are no different from what any layperson could opine might be the

case regarding any employment situation. The Court plainly requires no expert

testimony to conclude that, other things being equal, increasing employee benefits

(including spousal benefits) will in the abstract tend to yield more, better-qualified,

and better-performing employees and that people who believe they are or would

be treated unfairly will, in the abstract, tend to be less likely to enter or continue

employment, or to perform well therein. But neither proposed witness has


7/29/2019 2:12-cv-00887 #56

15/154

9

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

identified any reliable explanation of whether or how these sweeping, too-vague-

to-be-helpful generalities might actually apply to the specific context of this case.

To be sure, it is possible to imagine extensive, detailed and methodologically

rigorous evidence of how these principles operate in the unique circumstances of

the military statistical recruiting and retention analyses, psychological studies of

servicemembers, surveys of troop attitudes, reports on military demography, or

other materials that might properly be put before the Court by expert testimony.

But neither proposed witness purports to discuss anything like this. Instead:

Neither witness has more than anecdotal experience with gay or lesbianservicemembers, such as Gen. Laichs decidedly non-representativesampling of conversations with servicemembers and veterans with whom he

had contact in connection with his activities with the Servicemembers Legal

Defense Network, Laich Dep. 51:15-52:19; 60:6-9, 86:22-87:2, 102:8-103:8,

or Dr. Korbs familiarity with unnamed servicemembers, Korb Dep. 11:15-

12:18; 30:14-31:6.

Neither purports to have any knowledge of whether demographic differencesbetween opposite-sex and same-sex couples might create differences in

precisely how the availability of spousal benefits might affect their

enlistment decisions.

Both admit that their generalized assertions regarding incentives anddistractions have never been measured in any way with the result that

neither witness can engage in a specific discussion of their effects on the

average servicemember beyond general truisms discernible to the unassisted

layman.

Where such truisms have not even been connected to the facts of this case,

there is a serious question whether they are relevant at all. But in any event, there

is no need for expert testimony to present them: Courts have not hesitated to


7/29/2019 2:12-cv-00887 #56

16/154

10

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

exclude proposed expert evidence which, like this proposed testimony, consists of

generalized observations based on nothing more than . . . common sense, such

that the trier of fact can accomplish the same analysis without an expert, and

accept or reject the observations as applicable to the case without the assistance of

any specialized knowledge. Arjangrad v. JPMorgan Chase Bank, NA, No. 3:10-

cv-01157, 2012 WL 1890372, at *7 (D. Or. May 23, 2012) (excluding testimony

regarding human resources practices); seeWhite v. Ford Motor Co., 312 F.3d 998,

1008-09 (9th Cir. 2002) (testimony was admissible, if at all, only as lay opinion,

where the witness reached a particular conclusion without rely[ing] on his

metallurgy expertise at all. He just relied on simple logic.);United States v.Hanna, 293 F.3d 1080, 1086 (9th Cir. 2002) (expert testimony not helpful in

determining how a reasonable person would foresee that his communications

would be perceived);Beech Aircraft Corp. v. United States, 51 F.3d 834, 842 (9th

Cir. 1995) (audibility of audio tapes well within ability of trier of fact to discern

without expert opinion); McCollen v. UPS Ground Freight Inc., No. 11-cv-0961,

2012 WL 3758837, at *2 (D. Ariz. Aug. 30, 2012) (Because fatigue based on lack

of sleep is not an issue beyond the common knowledge of the average layperson,

the Court cannot conclude that expert testimony is required. (quotation marks

omitted)); Swendsen v. Corey, No. 4:09-cv-00229, 2012 WL 465722, at *4-5 (D.

Idaho Feb. 13, 2012) (expert testimony excluded for failure to provide any

methodology or principles or apply any theory or techniques);Mueller v. Auker,

No. 04-civ-399, 2010 WL 2265867, at *4(D. Idaho June 4, 2010) (testimony

excluded where witness fail[ed] to explain how he brought his experience to bear

in assessing the credibility of the parties, or why his expertise gives him insight

. . . that the jury would lack).


7/29/2019 2:12-cv-00887 #56

17/154

11

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2. The Witnesses Conclusions About the Overall Impact of

DOMA and Title 38 on Military Goals Also Are Inadmissible.

In the absence of any hard information about how the spousal definitions in

DOMA and Title 38 affect even individual servicemembers, it obviously is

impossible for Gen. Laich or Dr. Korb to predict with any reliability what (if any)

aggregate effect the spousal definitions might have on the militarys overall goals.

But even if reliable information regarding the impact of the spousal definitions on

individual servicemembers were available, there are further deficiencies in the

foundations for the witnesses opinions that would preclude any reliable testimony

on these bigger-picture issues. Reliance on incomplete facts and data may makean expert opinion unreliable because an expert must know of facts which enable

him to express a reasonably accurate conclusion. Arjangrad,2012 WL 1890372,

at *6 (brackets omitted). A proposed experts inability to quantify his or hergeneral impressions is grounds for exclusion. See Rondor Music Intl Inc. v. TVT

Records LLC, No. 05-cv-2909,2012 WL 5105272, at *3 (C.D. Cal. Aug. 21,

2006).

Such is the case here. For instance, neither Dr. Korb nor Gen. Laich claims to

have an understanding even of how many servicemembers have obtained same-sex

marriage certificates from their respective states, let alone how many of that group

are aware of how the militarys definitions of spouse and marriage work.

Neither of them has identified any methodology or set of reasoning by which the

recruiting and psychological effects of the spousal definitions on servicemembers

have been quantified and aggregated in order to assess their impact on the military

as a whole nor could they, as they are not aware even of the number of

servicemembers who are affected by them. And neither of their reports or

deposition testimony reflects even a meaningful discussion or consideration of any

possible benefits to military recruitment, retention and readiness of maintaining the


7/29/2019 2:12-cv-00887 #56

18/154

12

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

traditional definition of marriage let alone any attempt to net out any such

benefits from the unquantified costs that the witnesses have claimed to identify.

3. The Testimony Cannot Be Supported by Vague Assertions ofExperience.

Both Gen. Laich and Dr. Korb appear to suggest that their personal

experience should make up for the lack of any hard foundation for their

opinions. Laich Dep. 17:23-18:25, 67:18-68:20, 76:11-22; Korb Dep. 54:20-56:8.

But a witness who reli[es] solely or primarily on experience . . . must explain how

that experience leads to the conclusion reached, why that experience is a sufficient

basis for the opinion, and how that experience is reliably applied to the facts. Thetrial courts gatekeeping function requires more than simply taking the experts

word for it. Fed. R. Evid. 702 advisory committees note (citations omitted).

Here, neither Dr. Korb nor Gen. Laich has made any of these showings in a way

that would render their reports useful to the trier of fact.

Neither Dr. Korbs nor Gen. Laichs military experience involved recruiting

or retention issues relating to gay or lesbian servicemembers. Korb Dep. 31:3-6;

Laich Dep. 19:18-20:12, 25:11-29:4. Gen. Laich admitted that he never discussed

Title 38s marital definitions during his entire military career, Laich Dep. 19:18-

20:12, 22:13-16, 29:11-30:2, 117:8-19:2. His only experience with DOMA and

Title 38 came in the form of a few dozen conversations he had after his

retirement with servicemembers and veterans who sought the assistance of a gay-

and lesbian-rights legal-aid group. Laich Dep. 52:13-22, 102:12-104:19. Neither

witness has published or spoken publicly on DOMA or Title 38 before. Korb Dep.

40:14-41:8, Laich Dep. 33:9-35:22. Thus, neither proposed witness has the

experience necessary to opine on the issues they purport to address.

Instead, both witnesses seek to use assertions of their experience in military

matters generally to paper over the large logical leap between their unquantified,


7/29/2019 2:12-cv-00887 #56

19/154

13

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

generally-applicable observations regarding employee incentives and their

unexplained, unquantified assertions regarding the militarys mission. This cannot

be done. As the Ninth Circuit has recognized, a proposed witnesss extensive

experience and knowledge are insufficient to support the witnesss testimony if

the witness fail[s] to explain in any detail the knowledge, investigatory facts and

evidence he was drawing from in applying his experience to the case at hand.

Hermanek, 289 F.3d at 1093. This is particularly true when, as here, the proposed

expert is required to consider a new problem that may be somewhat similar to, but

not the same as, those he dealt with previously. See id. at 1094;United States v.

Frantz, No. 02-cr-01276, 2004 WL 5642909, at *20 (C.D. Cal. Apr. 23, 2004). Inthe absence of a stronger link between [a proposed experts] knowledge or

experience and the particular matter he interpreted, there is simply too great an

analytical gap between the data and the opinion proffered, and the testimony

must be excluded. Hermanek, 289 F.3dat 1095 (quoting Gen. Elec. Co. v. Joiner,

522 U.S. 136, 146, 118 S.Ct. 512, 139 L. Ed. 2d 508 (1997)). That is the case here.

In short, far from offering any explanation that would permit the Court to

determine how th[eir] experience is reliably applied to the facts of the case, Gen.

Laich and Dr. Korb are satisfied to recite their experience, pronounce 30,000-foot

principles regarding recruitment and troop readiness, declare with no supporting

facts or methodology that the spousal definitions of DOMA and Title 38 are

detrimental under those principles, and request that the Court take [their] word for

it. Fed. R. Evid. 702 advisory committees note. As was the case in the Ninth

Circuits consideration ofDauberton remand, Plaintiffs experts neither explain

the methodology [they] followed to reach their conclusions nor point to any

external source to validate that methodology, instead presenting only [their]

qualifications, their conclusions and their assurances of reliability. UnderDaubert,

thats not enough. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1319 (9th


7/29/2019 2:12-cv-00887 #56

20/154

14

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Cir. 1995). Dr. Korbs and Gen. Laichs opinions may be legitimate policy

judgments that are entitled to a respectful hearing in the political and legislative

spheres. But that is all they are and it does not make them expert testimony that

is cognizable in judicial proceedings.

C. Because They Are Based on Fundamental Misunderstandings of

the Effects of DOMA Section 3 and the Title 38 Spousal

Definitions, the Opinions Are Neither Reliable nor Relevant.

In addition to the flaws discussed above, the proffered testimony of Gen.

Laich and Dr. Korb also suffers from an independent fatal defect: Neither putative

expert has an accurate understanding of what DOMA and Title 38s spousaldefinitions actually do, or of how the law of marital recognition in the military and

veterans contexts would change if these statutes were eliminated. As a result, to

the extent their opinions are based on any facts and data at all, see Fed. R. Evid.

702(b), they are based on incorrect legal assumptions and inaccurate facts and data,

and are irrelevant and inadmissible for that reason.

1. The Opinions Are Predicated on an Incorrect LegalUnderstanding Regarding Uniform Treatment of Same-Sex

Marriages in the Absence of DOMA Section 3 and Title 38sSpousal Definitions.

Both Gen. Laich and Dr. Korb predicated their opinions on their assumption

that, in the absence of DOMA and the spousal definitions in Title 38, a same-sex

couple from anywhere in the country could obtain a marriage certificate from a

state that issues them to same-sex couples and become eligible for spousal military

or veterans benefits. Korb Dep. 44:2-22; Laich Dep. 54:8-59:11, 100:10-102:7.

Both men stress the importance of uniform and consistent provision of benefits

across the entire military, and they obviously assumed that eliminating the statutes

to which they object would accomplish that purpose. But that assumption is

incorrect as a matter of law: If DOMA and Title 38s spousal definitions were


7/29/2019 2:12-cv-00887 #56

21/154

15

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

repealed, same-sex couples still would have to establish residence in a state that

recognizes same-sex marriage certificates before becoming eligible for veterans

benefits. For purposes of the veterans benefits that Plaintiffs are seeking:

[i]n determining whether or not a person is or was the

spouse of a veteran, their marriage shall be proven as

valid for the purposes of all laws administered by the

Secretary according to the law of the place where the

parties resided at the time of the marriage or the law of

the place where the parties resided when the right to

benefits accrued.38 U.S.C. 103(c).

3The large majority of states, of course, do not recognize

same-sex marriage certificates, regardless of whether they were valid in the place

where they were issued. See Defense of Marriage Statutes and Constitutional

Provisions (Statutes), Thompson Reuters (Aug. 2012), available on Westlaw at

0080 SURVEYS 21 (download .pdf). Thus, far from ensuring consistent

treatment of all servicemembers as Gen. Laich and Dr. Korb assume, as a matter of

law the repeal or invalidation of DOMA and Title 38 instead would mean that

same-sex military couples who have not resided in a state that recognizes same-sex

marriage certificates likely the majority of same-sex couples would be

excluded from the spousal benefits that the remainder of same-sex military couples

with marriage certificates could receive. Because Gen. Laich and Dr. Korb were

not aware that their position would cause this even greater discrepancy, their

3The legal rules for military recognition of the marriages of active-duty servicemembers

are less clear. See 10 U.S.C. 101(f)(5) (spouse means husband or wife, as the case may

be). But in light of the potentially chaotic and arbitrary effect of having a legal relationshipcease to be (or become) a marriage for military purposes when one of the partners leaves active

service, it seems highly unlikely that the active-duty recognition rule would be materially

different from the rule applicable to veterans benefits. In any event, Plaintiffs here do not

challenge any statute related to active-duty benefits, and have no standing to do so.


7/29/2019 2:12-cv-00887 #56

22/154

16

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

opinions do not account for it or reflect it. Indeed, Gen. Laich agreed that uniform

treatment of servicemembers is desirable, Laich Dep. 67:12-17, and Dr. Korb

admitted that providing spousal benefits to some same-sex couples with marriage

certificates but not others the precise legal effect that eliminating DOMA and

Title 38s spousal definitions would have could itself be detrimental to the

military. Korb Dep. 65:11-17.

In essence, then, the putative experts are leveling their opinions not against

DOMA and Title 38s spousal definitions, but against the broader statutory

scheme. But Plaintiffs are not challenging the broader scheme in this litigation.

Accordingly,these putative experts opinions condemn a statutory scheme that isnot at issue in this case. And [e]xpert testimony which does not relate to any

issue in the case is not relevant and, ergo, non-helpful.Daubert, 509 U.S. at 591

(quotation marks omitted).

2. Opinions Regarding Family Readiness Groups Reflect anIncorrect Application of DOMA Section 3.

Additionally, Both Dr. Korb and Gen. Laich appear to have made a critical

legal error regarding one of their main contentions: That state-law same-sex

spouse cannot participate in the military Family Readiness Groups (FRGs),

which harms military readiness. See Laich. Rep. 2931; Korb Rep. 24. Both

Dr. Korb and Gen. Laich repeatedly cite to FRGs as a critical component for which

access is according to them lacking for same-sex married couples with one

spouse on active duty. See Laich Rep. 29-31; Korb Rep. 24; Laich Dep. 62:2-

18, 79:17-22, 88:4-89:15; Korb Dep. 72:13-73:2. This conclusion appears to have

no basis in law or regulation.

Gen Laich cites Army Regulation 608-1 as preventing such state-law

spouses from participating in the groups, pursuant to DOMA and Title 38s spousal


7/29/2019 2:12-cv-00887 #56

23/154

17

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

definitions.4 See Laich Rep. 31. But Regulation 608-1 says nothing whatsoever

about limiting participation to spouses or persons in a marriage, as defined by

federal lawwhich would be the only way to trigger DOMAs definitions of

spouse or marriage. Instead, Regulation 608-1 defines a Family Readiness

Group as including family members (both immediate and extended such as

fathers, mothers, aunts, uncles and so forth), volunteers and Soldiers belonging to a

unit. Army Reg. 608-1 Glossary (2006) (Ex. C to Laich Rep.), excerpts attached

as Ex. E; see also id. Appendix J-1(b), (f). Indeed, the current version of the

Family Readiness Group Leaders Handbook defines the Families who are

permitted to participate as both immediate and extended Family members ofSoldiers as well as other individuals identified by Soldiers. U.S. Army FRG

Leaders Handbook 4 (4th Ed. 2010) (Ex. 3 to Korb Dep.), excerpts attached as

Ex. F; see also id. at 9 (Today, there is greater recognition of the many different

people involved in a Soldiers life who represent the Soldiers support network. . . .

As a result, the FRG must now provide information to a large network of

individuals to include parents, grandparents, aunts, uncles or other important

individuals. . . .); idat 53 (Encourage Soldiers and Families to provide contact

information forall desired loved ones. . . .; Make sure Soldiers are told

specifically to add any person (such as fiances, significant others, parents, etc.)

on their information sheet that they would like the FRG to contact.) (emphasis

added).

Thus, neither Gen. Laich nor Dr. Korb has identified any statute or

regulation and the House has found none that would limit participation in

FRGs to spouses, thus triggering the effects of DOMA Section 3. Indeed, the

most recent version of the FRG handbook makes it clear that participation is open

4Title 38s definitions only apply in the veterans benefits context. They have no bearing

on active-duty benefits or programs. Thus, even if DOMA Section 3 applied to FRGs, Title 38s

definitions would not.


7/29/2019 2:12-cv-00887 #56

24/154

18

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

to any individuals identified by Soldiers. Id. at 4. There thus appears to be no

legal reason why DOMA Section 3 would prevent a soldiers state-law same-sex

spouse from participation in an FRG. This fundamental misunderstanding of the

effect (or in reality, the lack thereof) of DOMA Section 3 on Family Readiness

Groups further renders Gen. Laichs and Dr. Korbs testimony unreliable. At a

minimum, their contentions regarding FRGs must be disregarded.

III. CONCLUSION

For the foregoing reasons, the Court should grant the Houses motion to

exclude the reports and testimony of Dr. Korb and Gen. Laich from the record, and

enter an order prohibiting their use or citation in this case.

Respectfully submitted,

By: /s/ H. Christopher Bartolomucci

H. Christopher Bartolomucci5

BANCROFT PLLC

Counsel for Intervenor-Defendant theBipartisan Legal Advisory Group of the U.S.

House of Representatives

November 6, 2012

5Kerry W. Kircher, as ECF filer of this document, attests that concurrence in the filing of

the document has been obtained from signatory H. Christopher Bartolomucci.


7/29/2019 2:12-cv-00887 #56

25/154

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CERTIFICATE OF SERVICE

I hereby certify that on November 6, 2012, I electronically filed the

foregoing Memorandum of Points and Authorities in Support of Motion to Exclude

the Testimony of Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich with the

Clerk of Court by using the CM/ECF system, which provided an electronic notice

and electronic link of the same to the following attorneys of record through the

Courts CM/ECF system:

Caren E. Short, Esquire

Christine P. Sun, Esquire

Joseph J. Levin, Jr., Esquire

SOUTHERN POVERTY LAW CENTER

400 Washington Avenue

Montgomery, Alabama 36104

[email protected]

[email protected]

[email protected]

Daniel S. Noble, Esquire

Adam P. Romero, Esquire

WILMER CUTLER PICKERING HALE & DORR LLP399 Park Avenue

New York City, New York 10022

[email protected]

[email protected]

Eugene Marder, Esquire

WILMER CUTLER PICKERING HALE & DORR LLP

950 Page Mill Road

Palo Alto, California 94304

[email protected]


7/29/2019 2:12-cv-00887 #56

26/154

1

2

3

4

5

6

7

8

9

1011

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

[email protected]

[email protected]

Jean Lin, Trial Attorney

U.S. DEPARTMENT OF JUSTICE

Civil Division - Federal Programs Branch

20 Massachusetts Avenue, Northwest

Washington, District of Columbia 20530

[email protected]

/s/ Mary Beth Walker

Mary Beth Walker


7/29/2019 2:12-cv-00887 #56

27/154

EXHIBIT A

Case 2:12-cv-00887-CBM-AJW Document 56-1 Filed 11/06/12 Page 1 of 13 Page ID#:761

7/29/2019 2:12-cv-00887 #56

28/154


7/29/2019 2:12-cv-00887 #56

29/154


7/29/2019 2:12-cv-00887 #56

30/154


7/29/2019 2:12-cv-00887 #56

31/154


7/29/2019 2:12-cv-00887 #56

32/154


7/29/2019 2:12-cv-00887 #56

33/154


7/29/2019 2:12-cv-00887 #56

34/154


7/29/2019 2:12-cv-00887 #56

35/154


7/29/2019 2:12-cv-00887 #56

36/154


7/29/2019 2:12-cv-00887 #56

37/154


7/29/2019 2:12-cv-00887 #56

38/154


7/29/2019 2:12-cv-00887 #56

39/154


7/29/2019 2:12-cv-00887 #56

40/154

EXHIBIT B


7/29/2019 2:12-cv-00887 #56

41/154

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

RULE 26(a)(2)B) EXPERT REPORT OF DR. LAWRENCE J. KORBCASE NO. CV 12-887 CBM (AJWx)

Wilm

erCutlerPickeringHaleandDorr

LLP

350SouthGrandAvenue,Suite2100

LosAngeles,

California90071

JOSEPH J. LEVIN, JR. (Pro Hac Vice)[email protected] P. SUN (SBN 218701)[email protected] E. SHORT (Pro Hac Vice)[email protected]

SOUTHERN POVERTY LAW CENTER400 Washington AvenueMontgomery, AL 36104Telephone: (334) 956-8200Facsimile: (334) 956-8481

(Caption Continued on Next Page)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Western Division

TRACEY COOPER-HARRIS and ) Case No. CV12-887 CBM (AJWx)MAGGIE COOPER-HARRIS, )

)) RULE 26(a)(2)(B) EXPERT) REPORT OF DR.LAWRENCE J.) KORB

Plaintiffs, ))

v. ))

UNITED STATES OF AMERICA; )ERIC H. HOLDER, JR., in his official )capacity as Attorney General; and )ERIC K. SHINSEKI, in his official capacity )as Secretary of Veterans Affairs, )

))

Defendants, )))


GROUP OF THE U.S. HOUSE )OF REPRESENTATIVES )Intervenor- )Defendant. )

))


7/29/2019 2:12-cv-00887 #56

42/154

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

RULE 26(a)(2)(B) EXPERT REPORT OF DR. LAWRENCE KORBCASE NO. CV 12-887 CBM (AJWx)

Wilm


LLP


LosAngeles,

California90071

RANDALL R. LEE (SBN 152672)[email protected] BENEDETTO (SBN 252379)[email protected] CUTLER PICKERING HALE AND DORR LLP350 South Grand Avenue, Suite 2100

Los Angeles, CA 90071Telephone: (213) 443-5300Facsimile: (213) 443-5400

ADAM P. ROMERO (admitted pro hac vice)[email protected] CUTLER PICKERING HALE AND DORR LLP7 World Trade Center

New York, NY 10007Telephone: (212) 230-8800Facsimile: (212) 230-8888

EUGENE MARDER (SBN 275762)

[email protected] CUTLER PICKERING HALE AND DORR LLP950 Page Mill RoadPalo Alto, California 94304Telephone: (650) 858-6000Facsimile: (650) 858-6100

Attorneys for Plaintiffs


7/29/2019 2:12-cv-00887 #56

43/154

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1RULE 26(a)(2)B) EXPERT REPORT OF DR. LAWRENCE J. KORB

CASE NO. CV 12-887 CBM (AJWx)

Wilm


LLP


LosAngeles,

California90071

I, Dr. Lawrence J. Korb, submit this Federal Rule of Civil Procedure 26(a)(2)(B)

report in the above captioned case.

1. I have personal knowledge of the facts stated herein and am competent totestify as to the matters set forth in this report. If asked at hearings or trial, I

am prepared to testify regarding the matters I discuss in this report.

2. I have been retained by the Plaintiffs in this matter to provide a report andtestimony regarding the history of military and veterans benefits and the

impact of the definition of spouse and surviving spouse in 38 U.S.C.

101(3) and (31) on military recruitment, retention, and readiness. I am being

compensated for this effort at a rate of $150 per hour and $1000 per day offull deposition or testimony, and I will be reimbursed for expenses in the

event that I have to travel in connection with my services.

I. BACKGROUND & QUALIFICATIONS

3. I am currently a Senior Fellow at the Center for American Progress, a senioradvisor to the Center for Defense Information, and an adjunct professor at

Georgetown University.

4. I received my Ph.D. in Political Science from the State University of NewYork at Albany and have held teaching positions at the University of Dayton,

the Coast Guard Academy, and the Naval War College.

5. I have also held positions as Vice President, Director of Studies, and MauriceGreenberg Chair of the Council on Foreign Relations. Before that, I was

Director of the Center for Public Policy Education, Dean of the Graduate

School of Public and International Affairs at the University of Pittsburg, Vice

President of Corporate Operations at the Raytheon Company, and Director of

Defense Studies at the American Enterprise Institute.

6. In addition, I served as Assistant Secretary of Defense for Manpower,Reserve Affairs, Installations, and Logistics from 1981 through 1985. In this


7/29/2019 2:12-cv-00887 #56

44/154

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2RULE 26(a)(2)(B) EXPERT REPORT OF DR. LAWRENCE J. KORB


Wilm


LLP


LosAngeles,

California90071

position, I was responsible for administering approximately 70 percent of the

defense budget of the United States. I was awarded the Department of

Defenses Medal for Distinguished Public Service for my performance.

7. I am also a military veteran, having served on active duty for four years asNaval Flight Officer. I retired from the Naval Reserve with the rank of

captain.

8. My current CV is attached as Exhibit A.II. PREVIOUS EXPERT TESTIMONY & PUBLICATIONS

9. In the past four years, I testified as an expert and was deposed as an expert inLog Cabin Republicans v. United States, 716 F. Supp. 2d. 884 (C.D. Cal.2010).

10. I have authored, co-authored, edited, or contributed to more than 20 booksand written more than 100 articles on issues related to national defense and

the treatment of Americas military veterans. My books include The Fall and

Rise of the Pentagon; American National Security: Policy and Process,

Future Visions for U.S. Defense Policy; Reshaping Americas Military; A

New National Security Strategy in an Age of Terrorists, Tyrants, and

Weapons of Mass Destruction; Serving Americas Veterans; andMilitary

Reform. A complete list of my publications is attached hereto as Exhibit B.

III. SUMMARY OF EXPERT OPINION

11. Providing comprehensive benefits to families of service members andveteransregardless of gender and sexual orientationis a crucial

component of our national security policy.

12. Accordingly, I believe that the definition of spouse and surviving spousein 38 U.S.C. 101(31) & 101(3) (Title 38), which governs benefits for

veterans and their families, and Section 3 of the Defense of Marriage Act


7/29/2019 2:12-cv-00887 #56

45/154

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



Wilm


LLP


LosAngeles,

California90071

(DOMA), 1 U.S.C. 7, are in direct conflict with the governmental

purposes underpinning the enactment of veterans benefit laws.

13. The denial of benefits to the same-sex spouses of men and women who areserving or have served in the armed forces undermines the professionalism

and effectiveness of the United States military. Denial of these benefits

jeopardizes the armed services ability to recruit able service members; harms

the maintenance of a qualified all-volunteer force by denying service

members benefits that would allow or encourage them to re-enlist; threatens

military readiness by undermining the armed services ability to ensure that

all service members are able to focus on their mission, knowing that thefederal government will attend to the needs of their loved ones; erodes

military cohesion by forcing the armed forces to treat some service members

differently than others; and decreases the militarys credibility with service

members and veterans by forcing it to take actions that contradict its own

message of nondiscrimination.

14. I have attached a bibliography of publications cited herein as Exhibit C.IV. PURPOSE OF VETERANS BENEFITS

15. Our nations commitment to providing continued care and services to injuredveterans began in pre-Revolutionary times. Since then, the country has

passed more than eighty laws intended to improve the quality of life for all

veterans injured in the line of duty, as well as for their families. In 1958,

Congress enacted a comprehensive program to compensate service-disabled

veterans and their families for the impact of their disability on their earning

capacity and quality of life. Congress regarded this as a paramount

component of veterans services.

16. Each branch of government has recognized that benefits for servicemembers family members are essential to a strong all-volunteer army. The


7/29/2019 2:12-cv-00887 #56

46/154

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



Wilm


LLP


LosAngeles,

California90071

armed forces leadership has decided that provision of these benefits to

service members and their families is necessary to ensure military readiness

and encourage service members to choose the military for a lifelong career.

Congress has agreed and established these benefits schemes.

17. Benefits for veterans spouses are intended to defray the costs of supportingdependents when a service-connected disability is hindering a veterans

wage-earning abilities. Service-injured veterans have an obvious need for

compensation for the financial harm to their family unit that follows when an

injury, illness, or condition related to the veterans service renders a once-

able-bodied, working member of the family unable to contribute to the familyas he or she could prior to serving.

18. Congress has long regarded the spousal benefits provided under Title 38 asimportant incentives for service and reenlistment that recognize the sacrifices

that military families must make while improving morale and providing

reassurance to service members that their families will be supported and

compensated for their service.

19. Recruitment and retention of service members relies on the governmentsability to preserve the dignity and integrity of military service by ensuring

that those who have been disabled in defense of our nation can re-establish

themselves in civilian society and provide for their families.

20. The Armed Services, as well as Congress, recognize the importance ofmilitaryfamilies, as opposed to individual service members, to the health of

the military as a whole. As studies have shown, family well-being and

security is a significant factor in each service members decision whether to

reenlist. Spousal benefits for service-related injuries are certainly a large

portion of that calculus. See Joyce WesselRaezer, Transforming Support to

Military Families and Communities, in Filling the Ranks: Transforming the


7/29/2019 2:12-cv-00887 #56

47/154

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



Wilm


LLP


LosAngeles,

California90071

U.S. Military Personnel System 213, 218-220 (Cindy Williamsed., 2004)

(Because the career servicemembers who make up a higher proportion of

theAll-Volunteer force are more likely to be married, family well-being

became moreimportant in a servicemembers decision to remain in the

military.); Bernard D. Rastker & Curtis L. Gilroy, The Transition to an All-

Volunteer Force: The U.S. Experience, in Service to Country: Personnel

Policy and the Transformation of Western Militaries 233, 256 (Curtis L.

Gilroy & Cindy Williams eds.,2006) (Although the military recruits

individuals, it retainsfamilies: familyconsiderations are important to the

individuals reenlistment decision.).21. In addition, service members performance is affected by their knowledge

that family members and spouses will be compensated and cared for should

the service member suffer a disabling injury. Strong benefits programs and

family support groups therefore ensure peace of mind and maintain military

readiness.

V. EFFECTS OF THE BAN ON SPOUSAL BENEFITS FOR CERTAIN

VETERANS

22. It is my understanding that the definition of spouse and surviving spousein Title 38 and Section 3 of DOMA prevent veterans in same-sex marriages

and their spouses from receiving dozens of benefits which are not only freely

available to veteran families with opposite-sex spouses, but were created and,

indeed, are advertised, as critical features of veterans compensation.

23. Services and benefits deniedonly to same-sex veteran spouses include deathpension benefits, health care reimbursement, assistance for continuing

education, and even job search assistance. Veterans cannot share or assign

any of these benefits to their same-sex spouses.


7/29/2019 2:12-cv-00887 #56

48/154

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



Wilm


LLP


LosAngeles,

California90071

24. Even Family Readiness Groups, affiliations of military families that prepareindividuals for deployment and support them during that time, are not

allowed to include same-sex spouse members. This continues to divide

service members into distinct categories rather than fostering military

readiness and cohesion.

25. I believe that denying benefits to spouses of gay and lesbian veterans, andthem alone, frustrates the clear purpose of these Congressionally-created

veterans benefits: to compensate disabled veterans for their decreased ability

to earn a living and support their families.

26. Both Congress and the military have stated their commitment to caring andproviding for the families of veteransparticularly those who have been

injured in the course of service. This commitment has been part of the U.S.

military ethos since its very inception. Denying gay and lesbian service

members these benefits is antithetical to that goal.

27. In addition, years of military experience have shown these benefits forservice members and families to be essential to the proper functioning of the

armed forces by ensuring that our men and women in uniform are capable of

serving at their maximum potential. Denying these benefits to some service

members diminishes military readiness and the effectiveness of the armed

services by compromising their ability to focus on the singular task before

them. See Michael J. Jackonis, et al., War, Its Aftermath, and U.S. Health

Policy: Toward a Comprehensive Health Program for Americas Military

Personnel, Veterans, and Their Families, 36 J.L. Med. & Ethics 677 (2008)

(stating that benefits for the families of veterans are a national security

issue).

28. Recruitment and retention of armed forces personnel, another major goal ofstrong veterans benefits, is also harmed by continued denial of these benefits


7/29/2019 2:12-cv-00887 #56

49/154

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



Wilm


LLP


LosAngeles,

California90071

to individuals on the basis of sexual orientation and gender. These important

benefits are crucial incentives for able service members to join and remain in

the military; their denial to some service members thereby deprives the

armed services of an important tool. See Maj. Jonathan T. Petty, School of

Advanced Military Studies, United States Army command and General Staff

College, Facing the Long War: Factors that Lead Soldiers to Stay in the

Army Despite Persistent Conflict2 (2011) (stating that family support is one

of the eight primary factors that positively affect soldier retention).

29. In addition, recruitment and retention is harmed because this practice signalsto young people considering enlisting that the military is an intolerant,archaic institution. Title 38 and Section 3 of DOMA are contrary to the

stated military values of diversity, fairness, equality, and meritocracy.

30. Military cohesion also suffers due to the creation of a two-tiered structurethat requires the armed forces to treat service members differently, even

though the different treatment has no relation to their performance.

31. Indeed, Title 38 and Section 3 of DOMA are direct obstacles to Congresssgoal of a fully integrated army, as signaled by the repeal of Dont Ask, Dont

Tell (DADT). As long as Title 38 and Section 3 of DOMA stand as

concrete manifestations of discriminatory treatment, military officers cannot

credibly communicate their commitment to nondiscrimination or fully

integrate gay and lesbian service members into their companies, as

Congresss repeal of DADT has directed them to do.

***


7/29/2019 2:12-cv-00887 #56

50/154

1

2

3

4

5

6

7

8

9

1011

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



Wilm


LLP


LosAngeles,

California90071

I declare under penalty of perjury that the foregoing is true and correct and was

executed on September 14, 2012, in Washington, D.C.

By:

/s/_Dr. Lawrence J. Korb, Ph.D.__

Dr. Lawrence J. Korb


7/29/2019 2:12-cv-00887 #56

51/154

EXHIBIT C


7/29/2019 2:12-cv-00887 #56

52/154877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com

[Page 1]

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Western Division

--------------------------------X

TRACEY COOPER-HARRIS and )

MAGGIE COOPER-HARRIS )

Plaintiffs, )

v. ) Case No.

UNITED STATES OF AMERICA; ) CV12-887 CBM (AJWx)

ERIC H. HOLDER, JR., in his )

official capacity as Attorney )

General; and ERIC K. SHINSEKI, ) Pgs. 1 - 107

in his official capacity as )

Secretary of Veterans Affairs, )

Defendants, )

)


GROUP OF THE U.S. HOUSE OF )

REPRESENTATIVES, )

Intervenor- )

Defendant. )

--------------------------------X

DEPOSITION OF LAWRENCE JOSEPH KORB, SR., PH.D.

Washington, D.C.

Tuesday, October 16, 2012

Reported by: Cindy L. Sebo, RMR, CRR, RPR, CSR,

CCR, CLR, RSA


7/29/2019 2:12-cv-00887 #56


[Page 2]

1 October 16, 2012

2 9:32 a.m.

3

4

5 Deposition of LAWRENCE JOSEPH

6 KORB, SR., PH.D. held at the law offices of:

7

8

9

10

11 Bancroft PLLC

12 1919 M Street, Northwest

13 Suite 470

14 Washington, D.C. 20036

15

16

17

18

19 Pursuant to notice, before Cindy L. Sebo,

20 Registered Merit Reporter, Certified Real-Time

21 Reporter, Registered Professional Reporter,

22 Certified Shorthand Reporter, Certified Court

23 Reporter, Certified LiveNote Reporter, Real-Time

24 Systems Administrator and a Notary Public in and

25 for the District of Columbia.


7/29/2019 2:12-cv-00887 #56


[Page 3]

1 A P P E A R A N C E S:

2 For the Plaintiffs:

3 ADAM P. ROMERO, ESQUIRE

4 WilmerHale

5 7 World Trade Center

6 250 Greenwich Street

7 New York, New York 10007

8 212.295.6422

9 [email protected]

10 -and-

11 CHRISTINE P. SUN, ESQUIRE

12 CAREN E. SHORT, ESQUIRE

13 Southern Poverty Law Center

14 400 Washington Avenue

15 Montgomery, Alabama 36104

16 334.956.8450

17 [email protected]


19

20

21

22

23

24

25


7/29/2019 2:12-cv-00887 #56


[Page 4]

1 A P P E A R A N C E S (Continued):

2 For the Defendants:

3 JEAN LIN, ESQUIRE

4 United States Department of Justice

5 20 Massachusetts Avenue, Northwest

6 Washington, DC 20530

7 202.514.3716

8 [email protected]

9

10 For the Intervenor-Defendant:

11 MARY BETH WALKER, ESQUIRE

12 Office of General Counsel

13 219 Cannon Building


15 202.225.9700


17 -and-

18 MICHAEL H. MCGINLEY, ESQUIRE

19 Bancroft PLLC

20 1919 M Street, Northwest, Suite 470


22 202.234.0090


24 ALSO PRESENT:

25 THOMAS M. SUNDLOF, U.S. House of


7/29/2019 2:12-cv-00887 #56


[Page 5]

1 - - -

2 I N D E X

3 - - -

4 WITNESS PAGE

5 LAWRENCE JOSEPH KORB, SR., PH.D.

6 By Ms. Walker 7, 102

7 BY Mr. Romero 94

8

9 - - -

10 E X H I B I T S

11 - - -

12 KORB DEPOSITION

EXHIBIT NUMBER DESCRIPTION PAGE

13

1 Exhibit A to the 26(a)(2)(B)

14

Expert Report of Dr. Lawrence

15

J. Korb 18

16

17 2 26(a)(2)(B) Expert Report of

18 Dr. Lawrence J. Korb 41

19

3 U.S. Army FRG Leader's Handbook 77

20

21 4 Facing the Long War: Factors

22 That Lead Soldiers to Stay in

23 the Army During Persistent

24 Conflict 87

25 *(Exhibits Attached to Original Transcript.)


7/29/2019 2:12-cv-00887 #56


[Page 6]

1 DEPOSITION SUPPORT INDEX

2

3 Direction to Witness Not To Answer

4 Page Line Page Line

5 (None)

6

7

8 Request For Production of Documents


10 (None)

11

12

13 Stipulations


15 (None)

16

17

18 Questions Marked


20 (None)

21

22

23

24

25


7/29/2019 2:12-cv-00887 #56


[Page 7]

1 P R O C E E D I N G S

2

3 Washington, D.C.

4 Tuesday, October 16, 2012; 9:32 a.m.

5

6

7 - - -

8 LAWRENCE JOSEPH KORB, SR., PH.D.

9 after having been first duly sworn, was

10 examined and testified as follows:

11 - - -

12 EXAMINATION BY COUNSEL FOR

13 INTERVENOR-DEFENDANT

14 - - -

15 BY MS. WALKER:

16 Q. Good morning, Dr. Korb.

17 Can you state your full name for the

18 record?

19 A. My name is Lawrence Joseph Korb, Sr.

20 Q. And I know you've been deposed

21 before, but I'd like to go through some basic

22 ground rules before the beginning of every

23 deposition.

24 I will ask you to answer questions,

25 and those answers will be recorded by the court


7/29/2019 2:12-cv-00887 #56


[Page 11]

1 Q. Did your testimony in the Log Cabin

2 Republicans case concern Title 38 or DOMA at all?

3 A. Not that I recall.

4 Q. And have you offered expert testimony

5 relating to DOMA or Title 38 in any case?

6 A. No.

7 Q. You're not a lawyer; is that correct?

8 A. That's correct.

9 Q. Did you do any special preparation

10 for today's deposition?

11 A. Well, obviously, I went over my

12 testimony again and I spoke to two of the

13 attorneys here (indicating) about how depositions

14 work and -- and what the ground rules are.

15 Q. Other than speaking with the

16 attorneys, did you speak with anyone else?

17 A. Well, I did speak to some military

18 people who are on active duty right now.

19 Q. And when did you speak with them?

20 A. Well, the last one was yesterday.

21 Q. And what did you talk about,

22 generally?

23 A. Well, I basically asked them if they

24 thought that DOMA and Title 38 were undermining

25 military readiness and unit cohesion.


7/29/2019 2:12-cv-00887 #56


[Page 12]

1 Q. And who is the person you spoke with

2 yesterday?

3 A. I -- he did not want to be

4 identified. It was an active duty officer.

5 Q. And how did you get in touch with

6 this active duty officer?

7 A. Well, I will deal with active duty

8 military people all of the time in my job, and --

9 so . . .

10 Q. So this is someone you had a

11 connection with before; is that correct?

12 A. Someone I had known before, yes.

13 Q. Okay. And in addition to the person

14 you spoke with yesterday, approximately how many

15 people did you speak with in preparing for this

16 deposition?

17 A. No one else.

18 Q. Okay.

19 Did you review any documents in

20 preparation of -- for this deposition?

21 A. Well, I went over the documents that

22 I cite in my testimony.

23 Q. Any other documents?

24 A. Not specifically, no.

25 Q. What do you mean by "not


7/29/2019 2:12-cv-00887 #56


[Page 30]

1 A. Well, we knew. And, in fact, if you

2 know the history, we've always had gay people in

3 the -- in the service.

4 Up until 1980, people -- it was

5 really up to the commanders to decide whether or

6 not that -- that person was undermining readiness

7 or unit cohesion. And so people who were there,

8 as long as they did not cause problems -- in other

9 words, we had standards of behavior for everybody.

10 And so, yes, we did have -- have them there,

11 people knew about it, and we didn't care.

12 What you care about is can that man

13 or woman do his or her job.

14 Q. What was your personal involvement

15 with these issues when you were on active duty?

16 A. What do you mean "personal

17 involvement"?

18 Q. You said you knew about gay military

19 members.

20 A. Um-hum.

21 Q. What do you mean? Did you,

22 personally, know someone who was gay who was

23 serving in the military?

24 A. Yes.

25 Q. And you knew that because you had


7/29/2019 2:12-cv-00887 #56


[Page 31]

1 spoken with them?

2 A. They talked about it, yeah.

3 Q. Did you ever specifically address

4 retention issues

2:12-cv-00887 #56

Documents

Transcript of 2:12-cv-00887 #56