DEFS.’ MOT. IN LIMINE TO EXCLUDE EXPERT OPINION 1 

TESTIMONY OF PROF. CATHERINE SMITH

JEFFREY H. WOOD 

Acting Assistant Attorney General 

Environment & Natural Resources Division 

U.S. Department of Justice 

LISA LYNNE RUSSELL, Chief 

GUILLERMO A. MONTERO, Assistant Chief 

SEAN C. DUFFY (NY Bar. No. 4103131) 

MARISSA A. PIROPATO (MA Bar. No. 651630) 

CLARE BORONOW (admitted to MD bar) 

FRANK J. SINGER (CA Bar No. 227459) 

ERIKA NORMAN (CA Bar No. 268425) 

Trial Attorneys 

Natural Resources Section 

601 D Street NW 

Washington, DC 20004 

Telephone: (202) 305-0445 

Facsimile: (202) 305-0506 

sean.c.duffy@usdoj.gov 

Attorneys for Defendants 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

EUGENE DIVISION 

KELSEY CASCADIA ROSE JULIANA, et al., 

Plaintiffs,

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 Case No. 6-15-cv-01517-AA 

 

v. 

UNITED STATES OF AMERICA, et al., 

Defendants. 

_____________________________________ 

DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE EXPERT OPINION 

TESTIMONY OF PROFESSOR CATHERINE SMITH AND MEMORANDUM OF 

POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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DEFS.’ MOT. IN LIMINE TO EXCLUDE EXPERT OPINION 2 

TESTIMONY OF PROF. CATHERINE SMITH

 Defendants bring this motion pursuant to Federal Rules of Evidence 401, 402, 403, and 

702 for an order in limine excluding the expert opinion testimony of Professor Catherine Smith 

because her testimony consists exclusively of legal opinions that are not relevant to any issues in 

dispute in this case. This motion is based upon the memorandum below and its attached exhibits. 

Defendants have conferred with Plaintiffs’ counsel regarding this motion and Plaintiffs have 

indicated they oppose it. 

I. INTRODUCTION 

Professor Smith’s Report, attached as Exhibit A (“Smith Rep.”), cites the Constitution, 

international jurisprudence, several United States Supreme Court cases, and instances of 

executive, judicial, and societal discrimination against children throughout history to support her 

legal conclusion that children are a protected class warranting intermediate scrutiny by the 

nation’s courts. The Ninth Circuit, however, prohibits opinion testimony on ultimate issues of 

law, see Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004), 

and recognizes that resolving questions of law is the exclusive province of the trial judge. See 

United States v. Weitzenhoff, 35 F.3d 1275, 1290 (9th Cir. 1993). While Professor Smith posits 

that her opinions are historically and sociologically informed and thus not legal conclusions, the 

“history” she considers in her expert report consists of case law. The Smith Report should be 

excluded because it consists of legal advocacy with the pretense of sociological and historical 

analysis and improperly infringes on the judge’s function by interpreting the law. 

II. FACTUAL BACKGROUND 

Professor Catherine Smith has a Juris Doctor degree and teaches at the University of 

Denver Sturm College of Law. Smith Rep. 1. She co-authored an amicus brief on the rights of 

children of same-sex parents in Obergefell v. Hodges, id., and she has had articles about equal 

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TESTIMONY OF PROF. CATHERINE SMITH

protection and children’s rights published by Law and Contemporary Problems, the Washington 

University Law Review, and the Denver University Law Review, among other legal journals. Id.

ex. B 1-2. But Professor Smith claims no expertise in climate change, climate science, 

meteorology, biology, fossil fuel development, renewable energies, U.S. energy policy, or 

medicine. Smith Dep. Tr. 16:23-17:2, 36:21-37:21 (“Smith Dep.”) (excerpts attached as Ex. B). 

She has no training in sociology or history, id. 37:22-25, and has spent her entire career as a 

lawyer, id. at 34:8-17. Nor does she claim expertise in how climate change may cause harms to 

Plaintiffs. Id. at 122:3-8. 

Professor Smith offers two principal legal opinions about children’s rights. First, she 

opines that “the special characteristics of children and their differential treatment under the law 

bears on their status as a protected class for purpose [sic] of equal protection principles.” Smith 

Rep. 1. Second, Professor Smith posits that government action “that creates devastating and 

disproportionate consequences to children requires at least intermediate scrutiny.” Id. at 4. 

Professor Smith explains the function of her report’s historical and sociological legal 

analysis in the first sentences of her Executive Summary. She writes that the Supreme Court in 

Obergefell v. Hodges, 135 S. Ct. 2584 (2015), explained that “new insights and societal 

understandings can reveal unjustified inequality within our most fundamental institutions that 

once passed unnoticed and unchallenged.” Id. at 3 (quoting Obergefell, 135 S. Ct. at 2603-04). 

And she notes that the Court considers these “advanced understandings” and incorporates “the 

lessons learned into the fabric of constitutional law.” Id. 3. She then advocates for the 

recognition of children as a protected class and the application of intermediate scrutiny by 

making the same historical and sociological considerations she admits judges make in reaching 

their own conclusions. 

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TESTIMONY OF PROF. CATHERINE SMITH

Professor Smith roots her protected class analysis in interpretive readings of the 

Constitution and Bill of Rights. Smith Rep. 7 (contending that “[t]he Founders held claim to the 

concept that certain unalienable rights could never be lost to later generations through the action 

or inaction of earlier generations.”); id. at 11 (arguing that “[t]he founding documents, including 

the Bill of Rights, have special sensitivities towards children and future generations that are 

reflected throughout our nation’s continuing history since the late 1800s.”). She then identifies 

presidential initiatives and pieces of legislation designed to protect children before highlighting 

similar international efforts. Id. at 16 (contending that “the United States throughout the 

twentieth century repeatedly recognized that children are deserving of special protection under 

the law”). 

After establishing that “America’s founding documents, the Bill of Rights, and 

international law have laid the ground work for a more robust recognition of the rights and 

interests of children,” Professor Smith turns to a series of “cases about children’s Fourteenth 

Amendment equal protection rights” that she believes “are critical to analyzing one of the most 

menacing threats to the health and well-being of children today – climate change.” Id. at 3-4; see 

also id. 18-35. She first relies on a series of cases—including Brown v. Board of Education of 

Topeka, Shawnee County, 347 U.S. 483 (1954); Tinker v. Des Moines Independent Community 

School, 393 U.S. 503 (1969); Graham v. Florida, 560 U.S. 48 (2010); and Miller v. Alabama, 

567 U.S. 460 (2012); among many others—to establish that “Children are children. They are a 

class entitled to special consideration and protection as a result.” Id. at 24. 

Professor Smith then hones in on a specific set of “child-centered cases” to argue that 

heightened scrutiny should apply “when government action imposes a lifetime of hardship on 

children for matters beyond their control.” Id. at 24. These cases include Levy v. Louisiana, 391 

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TESTIMONY OF PROF. CATHERINE SMITH

U.S. 68, 68 (1968); Weber v. Aetna Casualty & Surety Company, 406 U.S. 164 (1972); and 

Plyler v. Doe, 457 U.S. 202, 226 (1982). Id. at 24-31. She uses the legal framework established 

in these cases to highlight certain historical and societal harms judges have considered in those 

child-centered cases, including economic deprivation, stigmatic and psychological harm, and 

barriers to family formation. Id. at 31-35; see also Smith Dep. 120:12-121:17 (confirming that 

the categories of harms identified by Professor Smith in her report are derived from the “childcentered cases”). Professor Smith contends that “[t]hese cases offer valuable guideposts for 

when heightened review is warranted” and concludes that “the history and traditions of the 

nation, in combination with Supreme Court jurisprudence protecting the equal rights of children, 

require at least intermediate scrutiny[.]” Smith Rep. 35. 

Professor Smith frames the rest of her report by arguing that “[e]ach of the child-centered 

cases presents circumstances where children are uniquely harmed and the Court has to intervene 

to protect children from injuries caused by the management of large-scale systems over which 

government wields control.” Id. at 39. She argues that the government’s “climate and energy 

systems” fall into this category of government-controlled large-scale systems that will “deprive 

children of the benefits that are foundational for their lives” and for that reason warrant 

intermediate scrutiny. Id. at 36. In reaching this conclusion, Professor Smith relies on factors 

identified from case law regarding children’s “lack of control over their plight,” id. at 36; weighs 

the same categories of harm considered in the child-centered cases, id. at 42-45; and cites 

Obergefell and United States v. Windsor, 570 U.S. 744 (2013), for the proposition that certain 

groups of children are more vulnerable to those harms. Id. at 40-45. She concludes by arguing 

that the Constitution and Supreme Court precedent require heightened scrutiny “when 

government actions impose a lifetime of hardship on children for matters beyond their control, 

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TESTIMONY OF PROF. CATHERINE SMITH

even where no fundamental right is at issue.” Id. at 46. 

Because it offers only inadmissible legal opinion, Professor Smith’s report and testimony 

should be excluded in its entirety. 

III. LEGAL STANDARD 

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. 

District courts serve as gatekeepers in assessing the admissibility of expert evidence under this 

rule. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993); see also Murray v. S. 

Route Mar. SA, 870 F.3d 915, 923 (9th Cir. 2017) (“District judges play an active and important 

role as gatekeepers examining the full picture of the experts’ methodology and preventing 

shoddy expert testimony and junk science from reaching the jury.”). As gatekeepers, trial judges 

consider whether: (1) “the opinion is based on scientific, technical, or other specialized 

knowledge”; (2) “the expert’s opinion would assist the trier of fact in understanding the evidence 

or determining a fact in issue”; (3) “the expert has appropriate qualifications”; (4) “the testimony 

is relevant and reliable”; (5) “the methodology or technique the expert uses ‘fits’ the 

conclusions”; and (6) “its probative value is substantially outweighed by the risk of unfair 

prejudice, confusion of issues, or undue consumption of time.” United States v. Hankey, 203 

F.3d 1160, 1168 (9th Cir. 2000) (internal citations omitted). 

The Ninth Circuit limits expert opinions to ultimate issues of fact—“expert witnesses 

may not opine as to legal conclusions, i.e., an opinion on an ultimate issue of law.” Siring v. Or. 

State Bd. of Higher Educ. ex. rel. E. Or. Univ., 927 F. Supp. 2d 1069, 1076 (D. Or. 2013) (citing 

Hangarter, 373 F.3d at 1016). “[A]lthough experts may use legal terms in expressing their 

opinions, expert testimony that consists of legal conclusions is unhelpful and inadmissible.” 

Arjangrad v. JPMorgan Chase Bank, N.A., No. 3:10-cv-01157-PK, 2012 WL 1890372, at *7 (D. 

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TESTIMONY OF PROF. CATHERINE SMITH

Or. May 23, 2012) (citing United States v. Boulware, 558 F.3d 971, 975 (9th Cir. 2009)). “Any 

‘judicially defined terms,’ ‘terms that derived their definition from judicial interpretations,’ or 

‘legally specialized terms’ constitute expression of opinion as to the ultimate legal conclusion.” 

Halsted v. City of Portland, No. 3:10-cv-00619-AC, 2012 WL 13054271, at *2 (D. Or. Mar. 7,

2012) (citing United States v. Duncan, 42 F.3d 97, 101-02 (2d Cir. 1994)). 

The proponent of the expert opinion testimony bears the burden of establishing its 

admissibility. Daubert, 509 U.S. at 592 n.10; Lust By and Through Lust v. Merrell Dow Pharm., 

Inc., 89 F.3d 594, 598 (9th Cir. 1996). “Admissibility of the expert’s proposed testimony must 

be established by a preponderance of the evidence.” Chong v. STL Int’l, Inc., No. 3:14-cv-244-

SI, 2016 WL 4253959, at *3 (D. Or. Aug. 10, 2016). 

IV. ARGUMENT 

A. PROFESSOR SMITH’S REPORT IS LEGAL ADVOCACY WITH THE PRETENSE OF 

SOCIOLOGICAL AND HISTORICAL ANALYSIS

Professor Smith’s report is inadmissible because it addresses the ultimate legal issues in 

the case, viz., the standard of review to apply to children when considering an equal protection 

claim. See Smith Rep. 1 (“I, Catherine Smith, have been retained by Plaintiffs in the abovecaptioned matter to provide my expert opinions regarding a historical and sociological legal 

analysis of whether government actions that discriminate against and harm children should be 

reviewed under heightened judicial scrutiny.”). The report accomplishes this in two ways. First, 

Professor Smith offers interpretive readings of Supreme Court cases and the presidential 

initiatives, legislation, and social shifts courts may consider in reaching their own decisions on 

the same legal issues Professor Smith addresses—all under the guise of a historical and 

sociological analysis she admits courts routinely undertake themselves. She then identifies those 

factors courts have looked to in child-centered equal protection cases and applies them to the 

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TESTIMONY OF PROF. CATHERINE SMITH

facts of this case. 

Experts and attorneys offer the court differing but potentially useful functions. Experts 

interpret and analyze factual evidence. Attorneys advocate for certain outcomes based on legal 

arguments and the facts of their case. But attorneys cannot offer the court the expert’s special 

knowledge. So the expert functions as a vehicle with which the court can arrive at the truth, as 

opposed to a legal advocate persuading the court to arrive at a particular conclusion. Yet the 

Smith Report advocates for two legal conclusions: (1) children are a protected class (2) 

warranting at least intermediate scrutiny. 

The Ninth Circuit has defined the permissible scope of expert testimony. “[E]xpert 

testimony concerning an ultimate issue is not per se improper.” Mukhtar v. Cal. State Univ., 

Hayward, 299 F.3d 1053, 1065 n.10 (9th Cir. 2002), amended 319 F.3d 1073 (9th Cir. 2003). 

Nor does expert testimony that is otherwise admissible become objectionable because “it 

embraces an ultimate issue” to be decided by the trier of fact. Fed. R. Evid. 704(a). But “an 

expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate 

issue of law.” Mukhtar, 299 F.3d at 1065 n.10. This limitation is consistent with the principle 

that expert testimony should aid the trier of fact. “Expert testimony assists the trier of fact when 

it provides information beyond the common knowledge of the trier of fact.” United States v. 

Finley, 301 F.3d 1000, 1008 (9th Cir. 2002) (citing Daubert, 509 U.S. at 591). 

Professor Smith’s expert report is not—and her proposed testimony would not be—

helpful. Whether children are a protected class and whether that protected class warrants 

intermediate scrutiny are legal issues the court can decide using the same tools Professor Smith 

uses in her report. The Smith Report includes references to the Constitution, the Bill of Rights, 

presidential and international initiatives designed to protect children, and Supreme Court cases. 

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TESTIMONY OF PROF. CATHERINE SMITH

Professor Smith admits that the Court could look to the same founding documents when 

interpreting the Constitution: 

Q. But would you agree that a Court could look to the Constitution and 

could interpret the Constitution in a case? 

A. Yes. 

Q. Okay. And a Court could look to the Bill of Rights [and] the 

Fourteenth Amendment in a case? 

A. A Court could. 

Smith Dep. 51:18-24. 

Professor Smith also admits that the Court could look to the same presidential initiatives 

and social shifts: 

Q. But in your position as a law professor, you wouldn’t think it 

inappropriate for a court to look at these presidential statements in reaching its 

conclusion that there’s been this evolution over time of children’s rights and in 

reaching a conclusion about the level of scrutiny to be applied? 

A. I think it goes back to looking at social shifts and changes in society, 

and I think the Court does that often, and it can reference lots of different 

provisions, statements, speakers in doing so, whether it’s a presidential statement 

or a statement from civil rights activists or -- or anyone else. But I -- I would say 

that I think it’s important for the Court to be thinking about these issues because, 

unlike what Kennedy said, the difference from Obergefell in this case with respect 

to children is that children don’t have the same power that adults have to plea and 

protest, to educate the Court and society about the harms that they experience. 

Id. at 58:12-59:6. 

 And Professor Smith admits that case law would inform her testimony as it does her 

report: 

 Q. And would you yourself testify that certain groups of children are 

more vulnerable than others to climate change based on other things in the case? 

 A. If there’s some sort of document from the parties, a statement from the 

federal government, from the defendants, I might rely on that, but I won’t be 

relying on my own expertise to reach that conclusion, but I will rely on the case 

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TESTIMONY OF PROF. CATHERINE SMITH

law to say that it’s an important consideration for the court and that we look at 

children as a class or classification, including subsets of kids. 

 Q. And, again, when you say you’d rely on the case law to show it’s an 

important consideration for the Court, you’re referring to the child-centered 

cases? 

 A. Yes. 

Id. at 133:4-19. 

 The Constitution. Presidential initiatives. Court cases. Professor Smith admits these are 

all within the Court’s purview. Yet she applies all three herself in concluding that children are a 

protected class warranting at least intermediate scrutiny. “Expert testimony is not helpful to a 

jury, and thus not relevant, when it addresses an issue that is within ‘the common knowledge of 

the average layman.’” Arjangrad, 2012 WL 1890372, at *7 (quoting United States v. Vallejo, 

237 F.3d 1008, 1019 (9th Cir. 2001), amended by 246 F.3d 1150 (9th Cir. 2001)). And while 

there is no jury here, the Constitution, presidential initiatives, societal shifts, and court cases are 

well within the purview of the trial judge, as Professor Smith herself acknowledges. See Smith 

Dep. 50:16-21, 58:12-24. 

 Professor Smith not only considers the same texts, initiatives, and shifts in societal 

thinking that courts do in child-centered cases but also applies legal rules from those cases 

throughout her report. First, she notes “the abiding principle that ‘[l]egislation imposing special 

disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the 

kind of “class or caste” treatment that the Fourteenth Amendment was designed to abolish.’” 

Smith Rep. 24 (alteration in original) (quoting Plyer, 457 U.S. at 220). She then applies that 

principle to climate change, writing that “children impacted by climate change face a different 

kind of lack of control over their plight because they do not have economic power and cannot 

vote.” Id. at 36. Second, she notes “[t]he child-centered cases establish that the government may 

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TESTIMONY OF PROF. CATHERINE SMITH

not use large-scale government systems to pose serious risks to the wellbeing of children.” Id. at 

39. She then applies that rule to climate change, writing that “the national energy system is one 

of the largest systems under government control and direction” and that it “has significant 

consequences for the rights, benefits, and wellbeing of children.” Id. Professor Smith concludes 

by noting that “[t]he federal defendants set policy for both [the climate and energy] systems” and 

“those policies should be reviewed under heightened scrutiny.” Id. Third, she highlights 

specific harms from large-scale government systems that she argues the child-centered cases 

prohibit, including economic and psychological harms and barriers to family formation. Id. at 

31. She then analogizes those harms to climate change, which she contends flows from the 

United States’ energy policy. Id. at 42-45. 

 Plaintiffs may claim that Professor Smith is offering purely historical or sociological 

analysis, but every aspect of her analysis is permeated by legal advocacy based on the same 

factors traditionally addressed by legal counsel. Courts typically reject expert testimony that 

purports to apply, interpret, or advocate a legal position. The plaintiffs in Democratic National 

Committee v. Reagan sought to include testimony from an expert historian who concluded that 

the law in question had the effect of depriving minority voters of the opportunity to participate in 

the political process and was passed with the intent of suppressing minority voters. No. CV-16-

01065-PHX-DLR, 2018 WL 2191664, at *2 (D. Ariz. May 10, 2018), aff’d, No. 18-15845, 2018 

WL 4344291 (9th Cir. Sept. 12, 2018). While the court admitted the underlying data, it found 

that the historian’s “ultimate opinions” were not useful. Id., 2018 WL 2191664, at *3. The court 

stated that he “applied the law as he interpreted it to the data he assembled” and so “his opinions 

presented more like an attorney’s closing argument than an objective analysis of data.” Id. 

 Other courts have excluded historical analyses that speak directly to the governing law. 

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TESTIMONY OF PROF. CATHERINE SMITH

In excluding an expert’s opinion on the history of the Fair Credit Reporting Act, the U.S. District 

Court for the Northern District of Illinois found that “expert testimony on the history or purpose 

of the law is impermissible.” In re Ocean Bank, 481 F. Supp. 2d 892, 903 (N.D. Ill. 2007). The 

U.S. District Court for the Eastern District of Virginia excluded an expert’s testimony detailing 

the history of Virginia’s trust law because the purpose of the testimony was to “assist the Court 

in determining what law to apply to the issues raised.” SunTrust Banks, Inc. v. Robertson, No. 

2:09-cv-197, 2010 WL 11566593, at *6 (E.D. Va. Aug. 12, 2010). And the U.S. Court of 

Federal Claims excluded expert testimony where the expert testified about the history of the 

underlying legal doctrine because the plaintiff’s counsel could “make each of the arguments 

proffered by [the expert] during the trial.” Sparton Corp. v. United States, 77 Fed. Cl. 1, 9 

(2007). 

 Professor Smith’s opinions constitute legal analysis. Her expert report is essentially a 

legal argument that counsel could make in briefing and at trial. She admits that she could have 

presented the same opinions to this Court in an amicus brief—and has done so in other cases, 

such as Obergefell where she made similar arguments based on the same child-centered cases. 

See Smith Dep. 140:2-145:20, 145:18-20 (“I certainly could submit an amicus brief at the triallevel stage, like the law professor’s brief, but I’m being asked to be an expert in this case.”). 

She bases her opinion not on data from a technical field in which she has expertise but on legal 

materials that all legal professionals would consider in arguing and deciding a case. See Smith 

Dep. 77:7-81:5 (conceding that the materials she used and the conclusions she reached are 

identical to what a court would consider in rendering an opinion). 

To the extent that Professor Smith offers an “often overlooked” interpretation of the 

child-centered cases, Smith. Dep. 42:20, her report and testimony should be excluded because 

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they concern “both what the law is and how it should be applied to the facts of a case.” Pinal 

Creek Grp. v. Newmont Mining Corp., 352 F. Supp. 2d 1037, 1043 (D. Ariz. 2005). 

B. PROFESSOR SMITH’S REPORT USURPS THE JUDGE’S FUNCTION BY INTERPRETING 

THE LAW

The Smith Report supplants more than just the role of trial counsel. By resolving 

disputed questions of law, Professor Smith’s expert report occupies the “exclusive province of 

the trial judge.” See Hornish v. King Cty., 899 F.3d 680, 701 (9th Cir. 2018) (quoting 

Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1058 (9th Cir. 2008)). 

“[E]vidence that merely tells the jury what result to reach is not sufficiently helpful to the trier of 

fact to be admissible.” Nationwide, 523 F.3d at 1060 (quoting Kostelecky v. NL Acme Tool/NL 

Indus., Inc., 837 F.2d 828, 830 (8th Cir. 1988)). 

Although “[t]he concerns about admitting expert legal opinion may be lessened where, as 

here, a court sits as trier of fact,” CFM Commc’ns, LLC v. Mitts Telecasting Co., 424 F. Supp. 2d 

1229, 1233 (E.D. Cal. 2005), none of the limited circumstances justifying deviance from the 

general rule that legal testimony is improper exist here. “[T]he Ninth Circuit has recognized that 

there may be ‘instances in rare, highly complex and technical matters where a trial judge 

utilizing limited and controlled mechanisms, under the matter of trial management, permits some 

testimony seemingly at variance with the general rule.’” Shops at Grand Canyon 14, LLC v. 

Rack Room Shoes, Inc., No. 2:09-cv-01234-RLH-PAL, 2010 WL 4181361, at *2 (D. Nev. Oct. 

20, 2010) (quoting Flores v. Arizona, 516 F.3d 1140, 1166 (9th Cir. 2008), rev’d sub nom Horne 

v. Flores, 557 U.S. 433 (2009)). Yet the trial judge has “broad discretion” to exclude expert 

testimony that is not helpful to her decision. Beech Aircraft Corp. v. United States, 51 F.3d 834, 

842 (9th Cir. 1995) (per curiam) (internal citation omitted). 

This is not a case warranting deviation from the general rule that legal matters are 

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inappropriate subjects for expert testimony. Where courts have found deviation appropriate, they 

have recognized that specialized knowledge within a particular industry makes expert testimony 

uniquely helpful. For example, in Shops at Grand Canyon, the expert had specialized 

knowledge of the real estate industry in Las Vegas. 2010 WL 4181361, at *3. Conversely, the 

Ninth Circuit has held experts could not be used to provide legal meaning or interpret insurance 

policies as written. McHugh v. United Serv. Auto. Ass’n, 164 F.3d 451, 454 (9th Cir. 1999). The 

U.S. District Court for the Central District of California precluded expert testimony from a law 

professor about “the standard of review, the standard of patentability, the applicability of the 

presumption of validity, and the issues of claim scope and construction.” GTY Indus. v. Genlyte 

Grp., Inc., No. CV 94-1280 KN, 1995 WL 862319, at *1 (C.D. Cal. Dec. 19, 1995) (internal 

citation omitted). While the proposed expert was a patent law professor, he had “no 

demonstrated qualifications to testify as to technical matters.” Id. The U.S. District Court for 

the District of Arizona also excluded testimony from law professors about piercing the corporate 

veil in a case involving cleanup of a hazardous waste site. Pinal Creek Grp., 352 F. Supp. 2d at 

1044. In precluding the testimony, which included summaries of state law and discussions of 

Supreme Court precedent, the court stated that “federal courts typically prohibit lawyers, 

professors, and other experts from interpreting the law for the court or from advising the court 

about how the law should apply to the facts of a particular case.” Id. at 1042. 

Like the patent law professor in GTY Industries, Professor Smith has no demonstrated 

qualifications to testify to technical matters. She is not an expert in climate change, climate 

science, meteorology, biology, fossil fuel development, renewable energies, U.S. energy policy, 

economics, medicine, or mental health, Smith Dep. 16:22-17:2, 36:21-37:21, and would not 

testify to the facts of what harms are caused by climate change. Id. at 122:14-22, 124:24-125:11, 

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126:7-15, 132:22-133:3. And, as is clear from Professor Smith’s report, children-centered equal 

protection cases are neither rare nor highly technical because courts have Supreme Court and 

lower court precedent at their disposal. See Smith Rep. 18-35 (discussing long line of childcentered Supreme Court cases); Smith Dep. 40:19-41:19 (“And my expertise is to push those 

[child-centered] cases out and say we can look at them from a different way.”); Smith Dep. 43:1-

11 (noting that her report pulls “guiding principles” from the child-centered cases to be used in 

deciding the appropriate level of scrutiny). Professor Smith cited and applied that precedent 

herself to conclude that children are a protected class warranting intermediate scrutiny. 

Admitting Professor Smith’s testimony “would give the appearance that the court was shifting to 

witnesses the responsibility to decide the case,” and Professor Smith is in no better position to 

resolve these legal issues than the court. United States v. Scop, 846 F.2d 135, 150 (2d Cir. 

1988). 

C. EVEN IF PROFESSOR SMITH’S REPORT DID NOT CONSTITUTE IMPROPER LEGAL 

TESTIMONY, IT IS INADMISSIBLE BECAUSE IT DOES NOT PROVIDE RELEVANT 

EVIDENCE

Aside from the fact that Professor Smith’s testimony offers improper legal conclusions, it 

is also inadmissible because it is irrelevant to the issues in dispute in this case. Under Federal 

Rule of Evidence 402, evidence is admissible only if it is relevant. Evidence is relevant only if it 

has a tendency to make a fact “of consequence in determining the action” more or less probable. 

Fed. R. Evid. 401; see also Clark v. Thomas, 706 F. App’x 358, 359 (9th Cir. 2017) (upholding 

district court order holding evidence inadmissible when it was not “relevant to the disputed 

issues at trial”). 

Professor Smith’s report argues that “government actions that discriminate against and 

harm children should be reviewed under heightened judicial scrutiny” because children are a 

Case 6:15-cv-01517-AA Document 379 Filed 10/15/18 Page 15 of 17
DEFS.’ MOT. IN LIMINE TO EXCLUDE EXPERT OPINION 16 

TESTIMONY OF PROF. CATHERINE SMITH

“protected class for purpose of equal protection principles.” Smith Rep. 1. This opinion is not 

relevant to this action because the question of whether children are a protected class owed 

heightened scrutiny has already been decided by this Court. In its Opinion and Order on 

Defendants’ motion for judgment on the pleadings and motion for summary judgment, the Court 

found that children are not a suspect class to which heightened scrutiny applies under the Equal 

Protection Clause. ECF No. 369 at 57-58. Although the Court left open the possibility that strict 

scrutiny could still apply to Plaintiffs’ equal protection claim based on the “alleged infringement 

of a fundamental right”—here, the alleged “right to a climate system capable of sustaining 

human life,” id. at 58—Professor Smith does not opine on the existence or infringement of that 

alleged fundamental right. Her testimony is limited to the conclusion that “climate change’s 

consequences for children raises [] an ‘area of constitutional sensitivity’ that warrants heightened 

scrutiny, even when no fundamental right is at issue,” because children are a protected class. 

Smith Rep. 4 (emphasis added); see also id. at 35 (“In my expert opinion, the history and 

traditions of the nation, in combination with Supreme Court jurisprudence protecting the equal 

rights of children, require at least intermediate scrutiny when government actions impose a 

lifetime of hardship on children for matters beyond their control, even where no fundamental 

right is at issue.”). 

In her deposition, Professor Smith confirmed that she does not directly analyze 

fundamental rights in her report. Smith Dep. 113:9-115:15. She also confirmed that she does 

not intend to testify about the existence of any particular fundamental rights at trial. Id. at 

115:16-18. And, as discussed above, Professor Smith has acknowledged she is not an expert in 

how climate change might infringe a fundamental right to a climate system capable of sustaining 

human life, thereby causing harm to Plaintiffs or others. Id. at 122:5-8. 

Case 6:15-cv-01517-AA Document 379 Filed 10/15/18 Page 16 of 17
DEFS.’ MOT. IN LIMINE TO EXCLUDE EXPERT OPINION 17 

TESTIMONY OF PROF. CATHERINE SMITH

Because the Court has already determined that children are not a suspect class under the 

Equal Protection Clause, Professor Smith’s report and testimony are not relevant and therefore 

should be found inadmissible under Federal Rules of Evidence 401 and 402. 

V. CONCLUSION 

For the reasons discussed above, Defendants respectfully request that the Court exclude 

the Smith Report and related testimony. 

Dated: October 15, 2018 Respectfully submitted, 

 JEFFREY H. WOOD 

Acting Assistant Attorney General 

Environment & Natural Resources Division 

/s/ Clare Boronow

LISA LYNNE RUSSELL 

GUILLERMO A. MONTERO 

SEAN C. DUFFY (NY Bar No. 4103131) 

MARISSA PIROPATO (MA Bar No. 651630) 

CLARE BORONOW (admitted to MD bar) 

FRANK J. SINGER (CA Bar No. 227459) 

ERIKA NORMAN (CA Bar No. 268425) 

U.S. Department of Justice 

Environment & Natural Resources Division 

Natural Resources Section 

601 D Street NW 

Washington, DC 20004 

Telephone: (202) 305-0445 

Facsimile: (202) 305-0506 

sean.c.duffy@usdoj.gov 

Attorneys for Defendants 

Case 6:15-cv-01517-AA Document 379 Filed 10/15/18 Page 17 of 17