                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

WILMER GARCIA RAMIREZ, et al.,                     :
                                                   :
       Plaintiffs,                                 :       Civil Action No.:       18-508 (RC)
                                                   :
       v.                                          :       Re Document Nos.: 212, 214, 231
                                                   :
U.S. IMMIGRATION AND CUSTOMS                       :
ENFORCEMENT, et al.,                               :
                                                   :
       Defendants.                                 :

                                  MEMORANDUM OPINION

 DENYING PLAINTIFFS’ MOTION TO EXCLUDE CERTAIN OF THE OPINIONS OF DEFENDANTS’
EXPERTS QING PAN AND JOSEPH GASTWIRTH; GRANTING PLAINTIFFS’ MOTION TO EXCLUDE
   THE TESTIMONY OF DEFENDANTS’ EXPERT GARY MEAD; AND DENYING DEFENDANTS’
      MOTION TO EXCLUDE THE TESTIMONY OF PLAINTIFFS’ EXPERT IN PEDIATRICS

                           I. INTRODUCTION & BACKGROUND

   Plaintiffs in this case are young adults who arrived in the United States as unaccompanied

alien children and were taken into the custody of the Office of Refugee Resettlement (“ORR”), a

component of the Department of Health and Human Services (“HHS”). Upon turning eighteen,

they were transferred into the custody of Immigration and Customs Enforcement (“ICE”) within

the Department of Homeland Security (“DHS”). Whenever such a custody transfer occurs, ICE

is statutorily required to “consider placement [of the 18-year-old] in the least restrictive setting

available after taking into account the alien’s danger to self, danger to the community, and risk of

flight.” 8 U.S.C. § 1232(c)(2)(B). But Plaintiffs allege that the agency sent them to adult

detention facilities without considering less restrictive placements—the result, Plaintiffs say, of a

systematic failure to comply with the applicable statutory mandate. They accordingly filed this

class action lawsuit against ICE, DHS, and the Secretary of Homeland Security, alleging
violations of § 706(1) and § 706(2) of the Administrative Procedure Act (“APA”) and seeking

declaratory and injunctive relief. A bench trial is scheduled to begin on December 2, 2019.

       This opinion addresses three motions in limine that are ripe for decision—two filed by

Plaintiffs and one by Defendants. Each seeks to exclude testimony or a report by an expert that

the other side has put forward. First, Plaintiffs have filed a Motion to Exclude Certain of the

Opinions of Defendants’ Experts Qing Pan and Joseph Gastwirth, arguing that they have offered

opinions outside of their permissible expertise and role in the litigation. ECF No. 212. Plaintiffs

have also filed a Motion to Exclude the Testimony of Defendants’ Expert Gary Mead, arguing

that Mead has offered inadmissible legal opinions and that, despite being designated a rebuttal

expert, his opinions are not proper rebuttal. ECF No. 214. Defendants have filed a Motion to

Exclude the Report and Testimony of Plaintiffs’ Expert in Pediatrics, Dr. Julie Linton, on the

grounds that her testimony is not admissible to assist the court in deciding the Plaintiffs’

statutory claims. ECF No. 231. Each motion has been fully briefed and the Court will address

each in turn after reviewing the legal standards that governs all three motions.

                                          II. ANALYSIS

                                        A. Legal Standard

        “While neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence

expressly provide for motions in limine, the Court may allow such motions ‘pursuant to the

district court’s inherent authority to manage the course of trials.’” Barnes v. District of

Columbia, 924 F. Supp. 2d 74, 78 (D.D.C. 2013) (quoting Luce v. United States, 469 U.S. 38, 41

n.4 (1984)). “Motions in limine are designed to narrow the evidentiary issues at trial.” Williams

v. Johnson, 747 F. Supp. 2d 10, 14 (D.D.C. 2010). Importantly, a trial judge’s discretion

“extends not only to the substantive evidentiary ruling, but also to the threshold question of




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whether a motion in limine presents an evidentiary issue that is appropriate for ruling in advance

of trial.” Barnes, 924 F. Supp. 2d at 79 (quoting Graves v. District of Columbia, 850 F. Supp. 2d

6, 11 (D.D.C. 2011)).

       Federal Rule of Evidence 702 provides that qualified expert testimony is admissible if

“(a) the expert’s 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. A witness may qualify as an expert through knowledge, skill, experience, training or

education. Id. “In general, Rule 702 has been interpreted to favor admissibility.” Khairkhwa v.

Obama, 793 F. Supp. 2d 1, 10 (D.D.C. 2011) (citing Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579, 587 (1993); Fed. R. Evid. 702 advisory committee’s note (2000)) (“A review of the

caselaw after Daubert shows that the rejection of expert testimony is the exception rather than

the rule.”). “The degree of ‘knowledge, skill, experience, training or education’ required to

qualify an expert witness ‘is only that necessary to insure that the witness’s testimony ‘assist’ the

trier of fact.’” Khairkhwa, 793 F. Supp. 2d at 11 (quoting Mannino v. Int’l Mfg. Co., 650 F.2d

846, 851 (6th Cir. 1981) (noting that the weight of the evidence is a matter to be assessed by the

trier of fact)). “[I]t is not necessary that the witness be recognized as a leading authority in the

field in question or even a member of a recognized professional community.” 29 Charles Alan

Wright & Arthur R. Miller, Federal Practice & Procedure § 6265 (2015). “The ‘assist’

requirement is satisfied where the expert testimony advances the trier of fact’s understanding to

any degree.” Id.




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       “The Rule requires trial courts to assume a ‘gatekeeping role,’ ensuring that the

methodology underlying an expert’s testimony is valid and the expert’s conclusions are based on

‘good grounds.’” Chesapeake Climate Action Network v. Export-Import Bank of the U.S., 78 F.

Supp. 3d 208, 219 (D.D.C. 2015) (quoting Daubert, 509 U.S. at 590-97). “The trial court’s

gatekeeping obligation applies not only to scientific testimony but to all expert testimony.”

Groobert v. President & Dirs. of Georgetown Coll., 219 F. Supp. 2d 1, 6 (D.D.C. 2002) (citing

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999)). The gatekeeping analysis is

“flexible” and “the law grants a district court the same broad latitude when it decides how to

determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho Tire

Co., 526 U.S. at 141-42. Trial courts may apply a variety of different factors in assessing

reliability, including whether the expert’s technique can be tested or has been subject to peer

review, the existence of maintenance of standards and controls, and whether the technique has

been generally accepted in the scientific community. See Groobert, 219 F. Supp. 2d at 6 (citing

Daubert, 509 U.S. at 593-94). In some cases, particularly in situations involving non-scientific

testimony, the factors enunciated in Daubert may not be applicable, and a court’s reliability

analysis focuses on the expert’s personal knowledge, which “can be a reliable and valid basis for

expert testimony.” Id. at 7 (citing Kumho Tire Co., 526 U.S. at 149); see also Fed. R. Evid. 702.

Expert testimony, however, “that rests solely on ‘subjective belief or unsupported speculation,’ is

not reliable.” Groobert, 219 F. Supp. 2d at 6 (citing Daubert, 509 U.S. at 590).

       The Court is also mindful that “where a bench trial is in prospect, resolving Daubert

questions at a pretrial stage is generally less efficient than simply hearing the evidence.”

Victoria’s Secret Stores Brand Mgmt., Inc. v. Sexy Hair Concepts, LLC, No. 07 Civ. 5804

(GEL), 2009 WL 959775, at *6, n.3 (S.D.N.Y. Apr. 8, 2009). This is because, in a bench trial,




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the “factfinder and the gatekeeper are the same.” In re Salem, 465 F.3d 767, 777 (7th Cir. 2006).

A Daubert motion, therefore, effectively asks the Court to “gate-keep expert testimony from

[itself].” Joseph S. v. Hogan, No. 06 Civ. 1042 (BMC) (SMG), 2011 WL 2848330, at *2

(E.D.N.Y. July 15, 2011); see also 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair

Competition § 23:2.75 (4th ed. 2015) (“In a non-jury trial . . . the law gives the judge a wide

scope of discretion to read expert affidavits or hear expert testimony which will assist in reaching

an informed decision.”).

B. Plaintiffs’ Motion to Exclude Certain of the Opinions of Defendants’ Experts Qing Pan
                                   and Joseph Gastwirth

       Plaintiffs’ first motion in limine challenges some—but not all—of the opinions of

Defendants’ rebuttal experts Qing Pan and Joseph Gastwirth. Their report is a rebuttal to the report

of Plaintiffs’ expert statistician, Dr. Justin Lenzo. Pls.’ Mem. in Supp. of Mot. to Exclude Certain

of the Opinions of Defs.’ Experts Qing Pan and Joseph Gastwirth (“Pan & Gastwirth Mot.”) at 1,

ECF No. 212-1.

       In creating his report for Plaintiffs, Dr. Lenzo “reviewed the Age-Out Review Worksheets

(“AORWs”) and other materials (“SharePoint materials”) produced by ICE with respect to

[unaccompanied alien children (“UACs”)] who aged out [of HHS custody]” during a discrete time

period. Pan & Gastwirth Mot., Ex. A (“Lenzo Report”) ¶ 8, ECF No. 212-2. He also used

statistical analysis methods “to analyze the frequencies with which there is any evidence of” four

Risk Factors that are appropriately considered by ICE agents “in the AORWs and SharePoint

materials” as well as “whether the Risk Factors or other factors appear to drive” decisions about

whether or not to detain Age-Outs. Id. ¶ 9. He concluded that “for 82.0 percent of Age-Outs that

ICE detained during the Review Period, the AORFs and SharePoint materials did not contain any

evidence that might indicate a potential danger to the community or to self, identified one or more



                                                 5
potential sponsors, and did not contain any evidence that might indicate a flight risk that would

not be addressed by release to a sponsor.” Id. ¶ 72. He further concluded that “the percentage of

Age-Outs that are detained varies across field offices,” and that this was the case “even when

controlling for whether there is evidence of the Risk Factors.” Id. ¶¶ 78, 87–92.

       Professors Pan and Gastwirth produced a rebuttal report for the Government in which they

“attempted to replicate Dr. Lenzo’s work by reviewing and performing their own analysis on the

data Defendants produced to Plaintiffs.” Defs.’ Opp’n to Pan & Gastwirth Mot. (“Pan & Gastwirth

Opp’n”) at 3, ECF No. 234. 1 Importantly, “Defendants’ counsel directed Profs. Gastwirth and Pan

to assume that a [Field Office Junior Coordinator’s (“FJOC”)] completion of an AORW constitutes

contemporaneous documentation of an ICE officer’s documentation of consideration of least

restrictive setting available, taking into account danger to self, danger to the community, and risk

of flight.” Id. Plaintiffs read the Pan and Gastwirth report as “confirm[ing] that one variable

dominates the question of which age-outs are detained . . . : the field office making the age-out

decision.” Pan & Gastwirth Mot. at 1. The Government disputes this characterization and argues

that the rebuttal report concludes that sponsor availability, which they say Dr. Lenzo failed to

consider, was the most important factor. Pan & Gastwirth Opp’n at 8. This is the sort of

disagreement about statistical methodology that the Court expects to see in an expert statistician

rebuttal report, and the Plaintiffs’ motion does not seek to exclude this testimony.

       The Plaintiffs do ask the Court to exclude those portions of the Professors’ opinions that

they say go beyond statistical issues to reach “impermissible legal conclusions” that are outside



       1
         The Court has reviewed the Report of Professors Pan and Gastwirth to confirm the
accuracy of the parties’ characterizations of its contents. Pan & Gastwirth Motion, Ex. B (“Pan
& Gastwirth Report”) at 1, ECF No. 211-2. However, because that report has been filed only
under seal, the Court has chosen to avoid citing it directly in this Order.


                                                 6
the scope of their expertise. Pan & Gastwirth Mot. at 2. They say that, after reviewing Dr. Lenzo’s

report, the Professors “changed the topic from statistics to the ultimate issue in the case: whether

ICE complied with 8 U.S.C. § 1232(c)(2)(B)” and that they answered this question in the

affirmative “based not on any statistical analysis, bur rather [on] their interpretation of individual

worksheets, their assumption that conclusory assertions in those worksheets accurately stated the

reasons for detention, and their unsupported assumption that the reasons they attribute to individual

field officers were legally sufficient.” Id. at 11. The conclusions they reach, according to

Plaintiffs, “are well outside Professors Pan and Gastwirth’s areas of expertise, . . . are improper

legal conclusions, and . . . are based on baseless and inaccurate assumptions.” Id. at 12.

        The Court agrees with much if not all of what Plaintiffs have to say about the proper

scope of expert testimony, but denies this motion because of the difficulty of drawing an

appropriate line on the front end and because, in a bench trial, the Court can easily discount the

weight of any testimony the Professors might give that goes beyond the proper scope of their

expertise. Professors Pan and Gastwirth should only testify to the extent that their testimony “is

based on sufficient facts or data,” rather than unfounded assumptions, and only to the extent that

it “is the product of reliable principles and methods . . . reliably applied . . . to the facts of the

case.” Fed. R. Evid. 702. “Expert testimony that consists of legal conclusions cannot properly

assist the trier of fact” in either “understand[ing] the evidence or . . . determin[ing] a fact in

issue.” Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1212 (D.C. Cir. 1997); see

also U.S. ex rel. Mossey v. Pal-Tech, Inc., 231 F. Supp. 2d 94, 98 (D.D.C. 2002) (“[E]xpert

testimony consisting of legal conclusions will not be permitted because such testimony merely

states what result should be reached . . . .”). Opinion testimony on whether or not ICE is




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complying with its statutory obligations under 8 U.S.C. § 1232(c)(2)(B) would therefore be

improper, as the Government acknowledges. See Pan & Gastwirth Opp’n at 7.

       The Government also suggests that “it would be entirely appropriate for Defendants to

ask their experts ‘Did your analysis and subsequent review of the underlying documents reflect

consideration by ICE of less restrictive alternatives to detention when placing age-outs?’” Id.

The Court is less certain. It seems unlikely that the Professors would be able to answer this

question without straying from “reliable principles and methods” of statistics and stepping

outside their expertise to offer legal conclusions. However, the Court does not find it necessary

to rule out the possibility at this stage. In a bench trial, it is easy enough for the Court to simply

hear the evidence presented and treat testimony not based in reliable statistical principles and

methods as deserving of limited if any weight. See DL v. District of Columbia, 109 F. Supp. 3d

12, 29 (D.D.C. 2015) (“[T]hese concerns go to the weight, not the admissibility, of [the expert’s]

report, especially in a bench trial where there is no concern about jury confusion or prejudice as

noted above.”). Moreover, the Plaintiffs are not seeking to exclude the entirety of the Professors’

report and testimony, which means that they will be testifying anyway, so the efficiency gained

or time saved by granting the motion in limine would be limited.

       The Court therefore denies this motion but nonetheless cautions the Government that

testimony from the Professors that is not based on reliable statistical methods will not be given

much weight. Although the motion is denied, the Court is willing to entertain objections from

the Plaintiffs at trial on these grounds, though it hopes few will be necessary. Furthermore, to

the extent that the Professors’ testimony relies on the assumption that filling out an AORW

worksheet necessarily constitutes consideration by an ICE officer of placement the least

restrictive setting, see Pan & Gastwirth Opp’n at 3, the Court notes that this is a significant




                                                   8
assumption that touches on the key issues of fact in dispute at trial. Unless and until the

Government proves that it is actually the case that filling out an AORW necessarily means the

proper consideration was given, the Court is not inclined to give much weight to expert opinions

that rely on this, or any other, disputed premise.

     C. Plaintiffs’ Motion to Exclude the Testimony of Defendants’ Expert Gary Mead

       Plaintiffs’ second motion in limine seeks to exclude the entirety of the rebuttal expert

report of Gary Mead. Mr. Mead’s report is a rebuttal to the report of Plaintiffs’ expert John

Sandweg. Both Mr. Mead and Mr. Sandweg are former ICE administrators. Mr. Mead worked

at ICE as acting director for the ICE Office of Detention and Removal Operations (“DRO”) from

2006 to 2009 and as deputy assistant director and later executive associate director of Detention

Management at ICE Enforcement Removal and Operations (“ERO”) Unit, from 2009 to 2013.

Pls.’ Mem. in Supp. of their Mot. to Exclude the Testimony of Defs.’ Expert Gary Mead (“Mead

Mot.”) at 3, ECF No. 214-1). Plaintiffs argue that Mr. Mead has no experience “implementing,

complying with, or evaluating compliance with, Section 1232(c)(2)(B),” which he admits was

not enacted until just before his retirement from ICE, and which he admits he had no familiarity

with prior to this lawsuit. Id. As a result, they argue, his testimony that, for example, “ICE is in

compliance with 8 U.S.C. § 1232(c)(2)(B) as a result of highly trained, motivated and dedicated

officers . . . .” is improper as expert testimony. Id. at 4 (quoting Mead Mot. Ex 1, Expert Report

of Gary F. Mead Rebutting John R. Sandweg (“Mead Report”) at 4, ECF No. 214-2 (filed under

seal)). Other examples of testimony from Mr. Mead’s report that Plaintiffs highlight include “[i]t

is my expert opinion that FOJCs are thoroughly familiar with and consistently apply the

requirement to consider the full range of less restrictive alternatives to detention in each case”




                                                     9
and “ICE officers are sworn to enforce the law, including 8 U.S.C. § 1232(c)(2)(B), and the

evidence shows that they do.” Id. (quoting Mead Report at 5, 7).

        The Court agrees with the Plaintiffs that Mr. Mead’s report does not present proper expert

testimony because it consists nearly entirely of legal conclusions that are not based on reliable

principles and methods and which are only tangentially based on Mr. Mead’s own experience. Mr.

Mead’s expert report purports to offer his opinion on whether ICE is following the requirements

of the statute, but this is the very question before the Court and is therefore wholly inappropriate

as a subject of expert testimony. Burkhart, 112 F.3d at 1212 (“Expert testimony that consists of

legal conclusions cannot properly assist the trier of fact . . . .”). “[A]n expert may offer his opinion

as to facts that, if found, would support a conclusion that the legal standard at issue was satisfied,

but he may not testify as to whether the legal standard has been satisfied.” Id. at 1212–13. Here,

Mr. Mead’s conclusions in his expert report are phrased squarely in terms of whether or not ICE

is complying with the statute. The entirety of the proceedings before the Court will be aimed at

answering the precise questions that Mr. Mead has answered in conclusory fashion. This motion

is therefore granted because Mr. Mead’s expert testimony will not assist the factfinder—the

Court—in this case. The Court need not address the Plaintiffs’ additional concerns that Mr.

Mead’s opinion is not based on reliable principles and methods and that he lacks familiarity with

the statute. 2




        2
        The Court also need not address the numerous critiques of Mr. Sandweg’s report that
the Government raises in its opposition brief. See Defs.’ Opp’n to Mead Mot., ECF No. 232.
The Government has not filed a motion in limine challenging Mr. Sandweg’s testimony.


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   D. Defendants’ Motion to Exclude the Report and Testimony of Plaintiffs’ Expert in
                                        Pediatrics

       The third motion before the Court is from the Government, which seeks to exclude as

irrelevant the report and testimony of Dr. Julie Linton, Plaintiffs’ expert in pediatrics. Defs.’

Mot. to Exclude the Report and Testimony of Pls.’ Expert in Pediatrics (“Linton Mot.”), ECF

No. 231. Dr. Linton’s expert report addresses “the physical and mental health-related effects of

adult detention on immigrant teenagers who are detained by ICE when they turn eighteen.” Pls.’

Opp’n to Linton Mot. (“Linton Opp’n”), Ex A. Expert Report of Julie M. Linton, M.D. (“Linton

Report”) at 1, ECF No. 235-1. The Government argues that Dr. Linton’s report is irrelevant to

this case and is inadmissible hearsay. Linton Mot. at 2–3. The Plaintiffs respond that Dr.

Linton’s testimony on the extent of the injuries they will face if they are detained will be relevant

as the Court evaluates whether injunctive relief is appropriate. Linton Opp’n at 2–3 (arguing that

the Linton Report is relevant to whether the Plaintiffs will suffer irreparable injury, whether

remedies at law are adequate, and to the balancing of hardships).

       The Court agrees with the Plaintiffs that while Dr. Linton’s testimony may not touch on

the central merits issues in the case, it remains relevant to important questions of remedies. The

Federal Rules of Evidence define relevant evidence as evidence that “has any tendency to make a

fact more or less probable” so long as “the fact is of consequence in determining the action.”

Fed. R. Evid. 401. Evidence that is not relevant is not admissible. Fed R. Evid. 402. The APA

allows plaintiffs to seek injunctions, among other forms of relief. 5 U.S.C. § 703 (providing for

“actions for declaratory judgments or writs of prohibitory or mandatory injunction”). Plaintiffs

arguing for injunctive relief must meet a four-factor test by demonstrating that they “will suffer

an irreparable injury,” that they “lack an adequate remedy at law,” that “the balance of hardships

tip in favor of injunctive relief” and that injunctive relief would not disserve the public interest.



                                                  11
Nat. Res. Def. Council v. U.S. Envt’l Prot. Agency, 383 F. Supp. 3d 1, 15 (D.D.C. 2019). Each

of these factors is, therefore, “of consequence in determining the action,” since the Plaintiffs here

are seeking injunctive relief. Dr. Linton’s testimony about the harms that will be suffered by

class members if they are detained is relevant to three of the four factors. Her testimony will

self-evidently aid the Court in evaluating the probability that the class members’ injuries will be

irreparable. It will also aid the court with evaluating the two balancing factors—weighing the

Plaintiffs’ hardships against ICE’s and comparing the private and public interests at stake.

        The Government reminds the Court that Plaintiffs “have no legally protected interest in

any particular placement” and are not pursuing a court order that would dictate any particular

outcome following ICE’s consideration of placement in the least restrictive setting. Garcia-

Ramirez v. ICE, 338 F. Supp. 3d 1, 30 n. 8 (D.D.C. 2018) (ECF No. 60 at 35 n.8); see Linton

Mot. at 5. This is correct, but if ICE is considering the least restrictive setting available for a

given age-out, that individual is at least somewhat less likely to be detained than someone who

did not receive the required consideration. The injuries that would result from detention are

therefore still relevant to the determination of proper injunctive relief even if no one is entitled to

any particular placement because, in the aggregate, pursuant to Plaintiffs’ theory of the case,

these injuries are more likely to result when ICE is not complying with its statutory obligations.

        Further, the Government is mistaken in suggesting that this is a straightforward case of

APA review in which the Court could simply vacate the agency decision and remand for further

consideration. Defs.’ Reply in Supp. of Linton Mot. at 2–3, ECF No. 239. It remains to be seen

what remedies might be appropriate, but the Plaintiffs are challenging the ICE’s alleged failure

to comply with its statutory obligation on a widespread basis. There is not a discrete agency

process that yielded a single decision that needs to be re-run nor a rulemaking that must be




                                                  12
redone. If a widespread statutory violation is proven, Dr. Linton’s testimony could be relevant to

the Court’s determination of what—if any—injunctive relief against the agency will be necessary

to remedy that violation.

                                      III. CONCLUSION

       For the foregoing reasons, the motions in limine are disposed of as follows: Plaintiffs’

Motion to Exclude Certain of the Opinions of Defendants’ Experts Qing Pan and Joseph

Gastwirth, ECF No. 212, is DENIED; Plaintiffs’ Motion to Exclude the Testimony of

Defendants’ Expert Gary Mead, ECF No. 214, is GRANTED; and Defendants’ Motion to

Exclude the Report and Testimony of Plaintiffs’ Expert in Pediatrics, ECF No. 231, is DENIED.

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.


Dated: November 14, 2019                                          RUDOLPH CONTRERAS
                                                                  United States District Judge




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