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Planned Parenthood Southeast, Inc. v. Strange

United States District Court, M.D. Alabama, Northern Division

October 20, 2014

PLANNED PARENTHOOD SOUTHEAST, INC., on behalf of its patients, physicians, and staff, et al., Plaintiffs,
v.
LUTHER STRANGE, in his Official capacity as Attorney General of the State of Alabama, et al., Defendants

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[Copyrighted Material Omitted]

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For Planned Parenthood Southeast, Inc., on behalf of its patients, physicans and staff, Kiwana Brooks, Administrator of Plaintiff PPSE's Mobile Health Center, Plaintiffs: Alexa Kolbi-Molinas, Andrew David Beck, Jennifer Dalven, LEAD ATTORNEY, PRO HAC VICE, American Civil Liberties Union, New York, NY, USA; Carrie Y. Flaxman, LEAD ATTORNEY, PRO HAC VICE, Planned Parenthood Federation of America, Washington, DC, USA; Jennifer R. Sandman, Maithreyi Ratakonda, LEAD ATTORNEY, Planned Parenthood Federation of America, New York, NY, USA; Julia Heather Kaye, LEAD ATTORNEY, American Civil Liberties Union Foundation, New York, NY, USA; M. Wayne Sabel, SR, LEAD ATTORNEY, Sabel & Sabel, P. C., Montgomery, AL, USA; Renee Paradis, LEAD ATTORNEY, PRO HAC VICE, American Civil Liberties Union Foundation, New York, NY, USA; Roger Kraus Evans, LEAD ATTORNEY, PRO HAC VICE, Planned Parenthood Federation of America, New York, NY, USA.

For Reproductive Health Services, on behalf of its patients, physicans and staff, June Ayers, RN, Plaintiffs: Alexa Kolbi-Molinas, Andrew David Beck, Jennifer Dalven, LEAD ATTORNEY, PRO HAC VICE, American Civil Liberties Union, New York, NY, USA; Carrie Y. Flaxman, LEAD ATTORNEY, PRO HAC VICE, Planned Parenthood Federation of America, Washington, DC, USA; Jennifer R. Sandman, Maithreyi Ratakonda, LEAD ATTORNEY, Planned Parenthood Federation of America, New York, NY, USA; Julia Heather Kaye, LEAD ATTORNEY, American Civil Liberties Union Foundation, New York, NY, USA; M. Wayne Sabel, SR, LEAD ATTORNEY, Sabel & Sabel, P. C., Montgomery, AL, USA; Renee Paradis, LEAD ATTORNEY, PRO HAC VICE, American Civil Liberties Union Foundation, New York, NY, USA; Roger Kraus Evans, LEAD ATTORNEY, PRO HAC VICE, Planned Parenthood Federation of America, New York, NY, USA; Skye Lynn Perryman, LEAD ATTORNEY, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, USA; Susan Talcott Camp, LEAD ATTORNEY, American Civil Liberties Union, New York, NY.

For Luther Strange, in his official capacity as Attorney General of the State of Alabama, Brandon K. Falls, in his official capacity as District Attorney of Jefferson County, Alabama, Ashley Rich, in her official capacity as District Attorney of Mobile County, Alabama, Daryl Bailey, Defendants: Andrew L Brasher, William G. Parker, Jr., LEAD ATTORNEYS, Office of the Attorney General, Montgomery, AL, USA; Kyle A Beckman, Laura Elizabeth Howell, LEAD ATTORNEYS, Office of the Alabama Attorney General, Montgomery, AL, USA; Margaret Lindsey Fleming, LEAD ATTORNEY, James William Davis, State of Alabama, Office Of The Attorney General, Montgomery, AL, USA.

For Donald E. Williamson, MD, in his official capacity as State Health Officer of the State of Alabama, Defendant: Patricia Elaine Ivie, Phillip Brian Hale, LEAD ATTORNEY, Alabama Department of Public Health, Montgomery, AL, USA.

For Trinity Medical Center, Movant: Carey Bennett McRae, LEAD ATTORNEY, Bradley Arant Boult Cummings LLP, Birmingham, AL, USA.

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OPINION

Myron H. Thompson, UNITED STATES DISTRICT JUDGE.

On August 4, 2014, the court issued an opinion on the merits of the plaintiffs' constitutional claim against the staff-privileges requirement of Alabama's Women's Health and Safety Act, 1975 Ala. Code § 26-23E-4(c). See Planned Parenthood SE., Inc. v. Strange, F.Supp.2d , 2014 WL 3809403 (M.D. Ala. 2014). Today, the court issues a supplemental opinion explaining how it had resolved certain evidentiary matters related to the August 4th opinion, namely the admissibility of certain exhibits, the admissibility of certain expert opinions, and the credibility of the parties' witnesses.

I. Newspaper-Article Exhibits

Both parties had introduced as exhibits several newspaper articles that purport to represent statements made by Alabama legislators and the Governor regarding the Women's Health and Safety Act, among other issues.[1] The State objected to the admission of all of the exhibits on hearsay grounds.

In Brooks v. Miller, 158 F.3d 1230 (11th Cir. 1998), the Court of Appeals held that hearsay rules apply to the use of newspaper evidence in a bench trial for the purpose of proving legislative intent: ANews articles often contain multiple layers of hearsay and do not trump the sworn testimony of eyewitnesses. In ascertaining legislative purpose, a trial court operates under the same rules of evidence that control in any case." Id. at 1242. Applying those rules of evidence, the court sustained the State's objections in part: insofar as they were introduced to prove that certain statements were or were not made by elected officials, the articles are hearsay and were not admitted for that purpose.

Southern Wine and Spirits of America, Inc. v. Div. of Alcohol and Tobacco Control, 731 F.3d 799 Hope for Families & Comm. Service, Inc. v.

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Warren, 721 F.Supp.2d 1079, 1178 n.114 (M.D. Ala. 2010) (Watkins, J.)(and cases cited).

Furthermore, newspaper articles rarely satisfy the requirements of the residual-hearsay exception. Federal Rule of Evidence 807 allows for the admissibility of hearsay not specifically covered by an enumerated hearsay exception if:

" (1) the statement has equivalent circumstantial guarantees of trustworthiness;
" (2) it is offered as evidence of a material fact;
" (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
" (4) admitting it will best serve the purposes of these rules and the interests of justice."

Fed. R. Evid. 807(a).

In this case, the plaintiffs argued that the court should admit the newspaper articles under Rule 807 in light of the absence of official legislative history. However, even if the articles in question satisfy the requirement of trustworthiness and even if admitting them would serve the interests of justice, the articles would not be admissible because the plaintiffs could have introduced other, equally probative evidence of the reported statements: They could have called the legislators themselves and examined them as to their statements; and, alternatively, they could have elicited testimony from the reporters or other witnesses who observed the statements reflected in the newspaper articles. See Larez v. City of Los Angeles, 946 F.2d 630, 641-44 (9th Cir. 1991). By attempting to introduce the articles instead, the plaintiffs denied the State the opportunity to cross-examine the observers as to the accuracy of the alleged statements. The plaintiffs did not show that they made reasonable efforts to obtain such testimony or that it would have been futile to do so.

Therefore, the court did not admit the articles under the residual-hearsay exception. However, an out-of-court statement is not hearsay if it is not offered to prove the truth of the matter asserted. Here, the articles were admitted for another purpose: for their effect on Alabama readers. See U.S. v. Trujillo, 561 F.App'x 840, 842 (11th Cir. 2014). Regardless of whether the elected officials actually made the statements reported in these articles, the court found them to be relevant to the climate in which abortion providers live. Therefore, the articles were admitted for this limited purpose only.

II. Daubert Challenges

There were five challenges to expert witnesses based on Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The plaintiffs challenged the admissibility of Dr. James C. Anderson's opinions on credentialing, as well as his supplemental expert report in its entirety. They also challenged Dr. Jeffrey Hayes's deposition testimony in its entirety. Finally, they challenged certain opinion statements made by Dr. Christopher Duggar.

The State of Alabama sought to exclude the testimony of Margaret Moore in its entirety or, at the least, her testimony about the supply of physicians who perform abortions. It also challenged the testimony of Dr. Lori Freedman regarding the " stigma" that attaches to physicians who perform abortions and its impact.

A. Daubert Standard

Federal Rule of Evidence 702 allows experts to offer opinion testimony if:

" (a) the expert's scientific, technical, or other specialized knowledge will help the

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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.

Before an expert may testify, the court must play a gate-keeping role to ensure that the testimony is reliable. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Daubert, 509 U.S. at 597. Even if part of an expert's testimony is based on unreliable methodology, the court should allow those parts that are reliable and ...


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