And One More on Expert Witnesses in Libel Lawsuits

Yet again, from Judge Paul Byron (M.D. Fla.) in Grayson v. No Labels, Inc., decided last week, this one rejecting an expert proposed by the defense (for two other opinions in the same case, about experts proposed by the plaintiff, see this post and this post):

Plaintiff Alan Grayson contends in his Second Amended Complaint that Defendants, acting through Progress Tomorrow, published false and defamatory statements which damaged him "personally, professionally, and ultimately politically." The allegedly defamatory statements fall into three categories: (1) citation to a Congressional Ethics Investigation finding candidate Grayson had "Abused His Office for Financial Gain," including by using "taxpayer resources to conduct his high-risk investor scheme;" (2) images of Grayson's passport photograph with dollar signs replacing his eyes, an attaché case containing $150,000, and images implying he flew to the Cayman Islands to launder the money; (3) statements relating to accusations made by Grayson's ex-wife in connection with their divorce proceedings, during which she accuses him of spousal abuse… Defendants retained Melanie Sloan to offer opinions as an expert in "congressional ethics." …

Federal Rule of Evidence 702 permits "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education" to testify in the form of an opinion. In Daubert v. Merrell Dow Pharms., Inc. (1993), the Supreme Court explained that Rule 702 imposes an obligation on a trial court to act as a gatekeeper to ensure that any and all scientific [or otherwise specialized] testimony or evidence admitted is not only relevant, but reliable. District courts are charged with this gatekeeping function "to ensure that speculative, unreliable expert testimony does not reach the jury" under the mantle of reliability that accompanies "expert testimony." Thus, the party offering an expert opinion has the burden of establishing three criteria: qualification, reliability, and helpfulness….

Ms. Sloan's opinion concerns how a complaint against a member of Congress is reviewed by the United States House of Representatives' Office of Congressional Ethics ("OCE"), the composition of the OCE, the two phases of review by the OCE, and possible referral to the House Committee on Ethics. Ms. Sloan's report also sets forth her opinion that it is "commonly known that the House ethics committee rarely takes any action against members of Congress, [hence] the Washington political establishment and press corps regard and rely upon OCE reports as tantamount to an official finding that a member of Congress engaged in misconduct." …

Qualifications

An expert can be qualified to offer an opinion concerning scientific, technical, or specialized knowledge by virtue of his or her education, training, and/or work experience. Ms. Sloan cites her work as the executive director of a "watchdog" group she founded in 2003, called Citizens for Responsibility and Ethics in Washington, and her work as a senior advisor to another watchdog organization, American Oversight, as a basis for her expertise in congressional ethics. Ms. Sloan also attests that she worked with Congress to establish the OCE in 2008 and has filed "numerous" ethics complaints with the OCE against members of the House of Representatives. According to Ms. Sloan, she is regularly called upon by members of the media to explain the congressional ethics process and to comment on "various issues" related to congressional ethics. Moreover, Ms. Sloan has published numerous opinion pieces related to congressional ethics..

That said, Ms. Sloan fails to identify what Citizens for Responsibility and Ethics in Washington and American Oversight do, aside from their self-proclaimed titles of "watchdog" groups. This does not help the Court in assessing whether Ms. Sloan's work with either organization qualifies her, by virtue of her knowledge, skill, experience, training, or education, to offer the opinions expressed in her report. Similarly, Ms. Sloan's reference to having worked with Congress to establish the OCE in 2008 is too vague to be of assistance in assessing her expertise. The Court must speculate as to Ms. Sloan's role in the establishment of the OCE, and the Court cannot fill in this gap by assuming her work was instrumental as opposed to ministerial. Similarly, filing ethics complaints does not make one an expert on the inner workings of the OCE, just as filing an ethics complaint with the Florida Bar does not qualify one to offer opinions on how the claims are evaluated and advanced.

That Ms. Sloan is regularly called upon by members of the media to explain the congressional ethics process and to comment on "various issues" related to congressional ethics is also not helpful. The OCE rules spell out precisely how a complaint moves through the investigation and review process, and Ms. Sloan does not elaborate on whether her media interviews provide insight that is greater than what anyone can discern from reading the OCE rules. Ms. Sloan does, however, list her publications, and they appear to be opinion pieces, as opposed to scholarly critiques of the operations of the OCE and House Ethics Committee.

Next, Ms. Sloan lists her experience as an Assistant U.S. Attorney for the District of Colombia for an unspecified term, her work as counsel to the Committee on the Judiciary in the House of Representatives, and as nominations counsel to the Committee on the Judiciary in the United States Senate. While these posts are certainly impressive, there is no indication that they relate to congressional ethics.

Finally, and somewhat oddly, Ms. Sloan lists Ms. Magazine calling her "The Most Feared Woman in Washington," which Ms. Sloan claims was due to her work on congressional ethics, alluding, presumably, to her watchdog group complaints against members of Congress. Ms. Sloan also cites her title as one of "Washington's Most Influential Lobbyists," given to her by The Hill for five consecutive years. Being a lobbyist is—hopefully—unrelated to being a watchdog and, accordingly, is of no assistance to the Court. Similarly, Ms. Sloan lists publications that referred to her as one of "Washington's Most Influential Women Lawyers," one of "100 Agents of Change," and as one of the "Year's Greatest Mavericks," the latter two being conferred by Rolling Stone, which is not a peer-reviewed publication. None of these recognitions qualify one as an expert in congressional ethics. While the Court could assume that Ms. Sloan has substantial experience identifying politicians whose conduct is called into question and initiating a complaint with the OCE, that is not the same as being qualified to offer opinions on the inner workings and deliberative process of the OCE, which is the core of Ms. Sloan's opinions.

This is not to say that a properly qualified expert witness can never offer opinions concerning a governmental agency and how its regulations relate to the subject of the litigation. In Ford v. Gen. Motors LLC (N.D. Ga. 2019), the court found Allan Kam, a former NHTSA employee, was qualified to testify as an "expert regarding NHTSA and applicable federal regulations relating to the subject" rollover accident. Mr. Kam was permitted to opine that meeting the requirements of the FMVSS does not mean the vehicle is without defect. Importantly, Mr. Kam was not offering an opinion of law; that is, whether the subject vehicle was defective. Here, by contrast, Ms. Sloan's opinions are not confined to how the OCE processes an ethics complaint. Ms. Sloan's ultimate opinion is that the OCE referral to the House Ethics Committee is "tantamount" to an official finding that a member of Congress engaged in misconduct because every insider in Washington knows the House Ethics Committee protects its members and, therefore, its failure to act is not a vindication of the member.

Ms. Sloan, therefore, commits three sins: (1) her opinion usurps the role of the jury in determining the weight to afford the OCE referral; (2) Sloan fails to demonstrate that she possesses the requisite specialized knowledge to render this opinion; and (3) she offers a legal opinion that while the OCE is expressly prohibited from offering conclusions regarding the validity of the complaint or the guilt or innocence of the person subject to review, its report is, in reality, an official finding of misconduct. {Even when an ethics complaint advances to the second-phase review, the OCE's finding that probable cause exists to believe the allegation occurred "does not constitute a finding the violation has actually occurred." Ms. Sloan's opinion is contrary to the OCE rules and is, therefore, a legal opinion—albeit incorrect and entirely speculative.} For these reasons, Ms. Sloan lacks the necessary qualifications to testify as an expert witness. {The Court rejects Defendants' argument that Ms. Sloan is merely testifying regarding industry practices; she goes further by advancing opinions contrary to the express limits of the OCE's powers. Ms. Sloan lacks any expressed qualifications to opine what an OCE referral really means.} …

The opinion also concludes that the proposed testimony wouldn't be sufficiently reliable or helpful; it closes:

Ms. Sloan turns to Representative Grayson's decision to amend his 2009 and 2012 financial disclosure forms following the OCE referral as proof that the OCE findings were validated. Once again, Ms. Sloan commits the sin of usurping the role of the jury by offering an opinion that is solely within its providence. Worse, Ms. Sloan offers a legal opinion, and expert witnesses are prohibited from doing so.

The jury will be tasked with considering the political advertisement which proclaimed that the OCE "found" evidence that Grayson enriched himself while in Congress. Since the OCE does not pass on the credibility of allegations, Ms. Sloan attempts to cast the House Ethics Committee as colluding to protect its members and thereby elevates the OCE's referral to a factual finding—a conviction of sorts. Ms. Sloan uses scatter-shot statistics and anecdotes, coupled with an unvetted report issued by a third party, to support her characterization of the House Ethics Committee. All of which is necessary to give support to Ms. Sloan's opinion that the "Washington political establishment"—whatever that is—and the "press corps"—however that is defined—rely upon the OCE reports as "tantamount" to an official finding of misconduct.

If allowed, Ms. Sloan's opinions would inform the jury to disregard the Rules governing the OCE, which prevents that body from commenting on the veracity of the allegations or the guilt of the member, and to trust her that the Washington political establishment, in a rare moment of national unity, rely on the OCE, as does the press, no matter how far right or left the outlet may be. And the jury would have to do so based on Ms. Sloan's ipse dixit. This type of opinion testimony is precisely what Daubert was designed to prevent.