The opinion of the court was delivered by: Jack B.WEINSTEIN, Senior United States District Judge:
While he was in Israel, plaintiff Mati Gill, an American citizen, was injured by a bullet fired from Gaza in 2008. Claiming that the shooter was employed by a terrorist group, Hamas, which was financed by defendant Arab Bank (the "Bank"), he sues the Bank for damages. See Gill v. Arab Bank, PLC, --- F. Supp. 2d ---, 11-CV-3706, 2012 WL 4960358 (E.D.N.Y. Oct. 17, 2012) (extensive discussion of facts and law under the applicable Antiterrorism Act, 18 U.S.C. § 2333(a)).
Before the court are motions with respect to the admissibility of expert reports and lay testimony. Some of the issues raised in the parties' Daubert motions have been addressed in the Linde cases involving other terrorist attacks. See, e.g., Linde v. Arab Bank, PLC, 04-CV-2799-NG-VVP (E.D.N.Y. Dec. 5, 2011), CM/ECF No. 773. Since the issues of fact and law in the Linde cases are different, the questions now presented must be addressed ab initio.
II. Admissibility Standards
The parties are attempting to create opposing pictures supporting their positions, to be viewed in light of complex substantive and procedural law. See Gill, 2012 WL 4960358. Involved are the regulation of banking systems in the United States, Jordan, Lebanon, Israel, the West Bank and Gaza; the security operations of Israel and Hamas in controlling and disposing of their military and security forces; the states of mind of the Bank going back to the Twentieth Century under evolving regulations and oversight regimes; violent military groups, distinct from Hamas, vying for influence and "credit" for injuring civilians; myriad religious and charitable institutions with possible connections to Hamas and other terrorist groups; the United States' and other countries' policies, prosecutions and other actions respecting terrorism financing and money laundering; access to, and interpretation of, various forms of media utilized to claim credit for attacks on civilian populations; medical problems and diagnoses connected to plaintiff's injuries; and other matters. The relationships among, and situations of, the various relevant organizations were constantly changing; the image was dynamic not static; pixels and factoids, discrete details and snippets of information, must be established and analyzed to provide the jury with an understandable and relevant story-line whose reliability they can agree upon.
With so many vectors at play-most of which will not be familiar to jurors-a wide gateway to large amounts of evidence must be provided. Jurors will not have the broad background knowledge and hypotheses they bring to bear in run-of-the-mill cases within their ken.
The Federal Rules of Evidence and Rules of Civil Procedure are sufficiently flexible and merits-oriented to permit a jury to decide the case properly if it has the information needed to do so; yet, overwhelming the jury with excessive and confusing detail must be avoided. See Fed. R. Civ. P. 1 ("The rules [of Civil Procedure] . . . . should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding."); Fed. R. Evid. 102 ("administer every proceeding fairly, eliminate unjustifiable expense and delay . . . to the end of ascertaining the truth and securing a just determination").
Particularly useful in considering the issues now presented are Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure (discovery of expert reports), as well as Rules of Evidence 401-404 (relevancy) and 702-704 (expert testimony and bases for opinions). These provisions are sufficiently pliant to permit both parties to adequately present their case.
An intense, fact-specific inquiry is required in determining admissibility. See Sprint v. Mendelsohn, 552 U.S. 379, 387-88 (2008) ("Relevance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules.") (citing Fed. R. Evid. 401 advisory committee note).
Rule 702 reflects the basic principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). It is central to the decisions now made. If the expert testimony is arguably reliable and it will help the jury, it should be admitted. The Rule reads:
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 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 (emphasis added). Whether to admit or exclude expert testimony is within the broad discretion of the district court. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
Rule 703 controls the bases upon which an expert may rest testimony. It explicitly permits an expert's opinion to rest on hearsay and other inadmissible evidence so long as "experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject." Fed. R. Evid. 703. The rule allows for the proponent of expert testimony to disclose to the jury inadmissible evidence upon which an expert relied if the probative value of such evidence "substantially outweighs" its prejudicial effect. Id. In the instant case such disclosure is essential in the esoteric fields involved if the experts' opinions are to be properly evaluated.
Rule 704 reinforces the "basic approach" adopted by the Federal Rules of Evidence to admit opinions "when helpful to the trier of fact." See Fed. R. Evid. 704 advisory committee note. The rule provides that "[a]n opinion is not objectionable just because it embraces an ultimate issue." Fed. R. Evid. 704. That an expert will opine on an operative fact the jury must decide is irrelevant to a Daubert challenge.
In a number of instances, the experts proffered rely upon data obtained through personal experience as security or military officials; for security reasons information would not be open to adequate inquiry on cross-examination. Effective cross-examination was strongly relied upon by the Advisory Committee on the Federal Rules of Evidence to validate the use of evidence not otherwise admissible. See Fed. R. Evid. 705 advisory committee note (explaining that broad discovery of the bases for an expert's opinion allows an adversary to effectively cross-examine the expert as to the facts and data he or she relied upon). See also Olin Corp. v. Certain Underwriters at Lloyd's London, 468 F.3d 120, 134 (2d Cir. 2006) ("[C]ross-examination . . . is an appropriate way of attacking weak expert testimony, rather than complete exclusion.").
In sum, each proffered witness's testimony must be approached applying a strong policy in favor of full admissibility required for the jury to understand the complex details of this case. Those particulars are remote from the normal life experience upon which jurors rely when deciding cases. Admissibility of expert reports and testimony is therefore strongly favored.
Because the decisions of admissibility affect discovery decisions, the magistrate judge sat with the undersigned judge in order to minimize discovery burdens. The minimization is particularly advisable since the issues of admissibility and discovery largely overlap those in the Linde litigation overseen by the same magistrate judge.
Motions in limine as to the admissibility of expert reports and testimony were heard on October 3, 2012. Rulings were stated orally on the record. They are explained below. Following the hearings, the parties were told that they could proffer rebuttal witnesses where this court approved admissibility of an expert opinion that the Linde court excluded. See Hr'g Tr. 17:7-18:5; 19:3-13, Oct. 3, 2012 (Pohorelsky, M.J.), CM/ECF No. 156.
All relevant, additional, and necessary discovery shall be promptly completed under the supervision of the magistrate judge. See Hr'g Tr. 15:10-13, Feb. 23, 2012, CM/ECF No. 18; Hr'g Tr. 164:23-165:1; 165:12-13, Oct. 3, 2012, CM/ECF No.179. A report of a rebuttal witness need not comply with Rule 26 of the Federal Rules of Civil Procedure for the purposes of the parties' summary judgment briefing, see Hr'g Tr. 19:2-10, Oct. 3, 2012 (Pohorelsky, M.J.), CM/ECF No. 156; an affidavit will suffice. See id. Since both the Linde and this, the Gill, cases have been pending for some time, discovery has been effectively completed.
The following are rulings on expert and lay testimony proffered for trial and summary judgment (see also Hr'g Tr., Oct. 3, 2012, CM/ECF No.179):
A.Witnesses Proffered by Plaintiff and Challenged by Defendant
Defendant's motion to preclude plaintiff's expert Dr. Cynthia Trop from testifying and to exclude her report is denied. Dr. Trop is a board certified urologist qualified to opine on reproductive and other medical impairments suffered by plaintiff as a result of the gunshot that wounded him in the groin area on April 4, 2008. Conflicting evidence of the cause of plaintiff's injuries does not diminish Dr. Trop's qualifications to testify as an expert in this litigation. Any conflict between Dr. Trop's analysis and other medical analyses of plaintiff speak to credibility and not compliance with the Federal Rules of Evidence and Daubert. See Campbell v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 186 (2d Cir. 2001) ("[G]aps or inconsistencies in the reasoning . . . go to the weight of evidence, not to its admissibility.").
In the event Dr. Trop will testify at trial, plaintiff shall submit himself for a physical examination and provide semen samples to the doctor at least two weeks before trial.
Defendant's motion to preclude plaintiff's expert Dr. Eli Alshech from testifying and to exclude his report is denied. Dr. Alshech is a private consultant to the Israel Security Agency ("ISA"). He previously served as director of the Jihad and Terrorist Studies Project at the Middle East Media Research Institute. He focuses on the study of extremist jihadist groups, particularly their presence on the Internet, dissemination of propaganda, and claims of responsibility for terrorist acts.
Dr. Alshech's report addresses the credibility of claims of responsibility made by Hamas and other terrorist groups for the shooting attack that allegedly injured plaintiff on April 4, 2008. Defendant contends that Dr. Alshech's opinion is not of the type reasonably presented by experts in his field and that his report is a mere conduit for inadmissible hearsay.
Dr. Alshech's experience, analytic techniques and report and testimony meet Daubert'sand Rule 702's requirements. His report and testimony would be helpful to the jury. Hamas's responsibility for the shooting attack that allegedly caused plaintiff's injuries is a critical issue in the case. The subject of Hamas's and other groups' strategies and methods of claiming "credit" for terrorist attacks is an esoteric one about which the jury is likely to have little knowledge. While that subject may not be susceptible to the same scientific inquiry as other areas of knowledge that have been thoroughly studied and criticized, Dr. Alshech relies upon methods that an expert in his field would normally use. See Kumho Tire Co., Ltd., 526 U.S. at 151 ("It might not be surprising in a particular case, for example, that a claim made by a scientific witness has never been the subject of peer review, for the particular application at issue may never previously have interested any scientist."). Rejected is defendant's argument that Dr. Alshech's report should be disqualified for reliance on inadmissible hearsay. Dr. Alshech's report "necessarily relies on secondary sources to opine about secretive terrorist organizations." See United States v. Paracha, No. 03-CR-1197, 2006 WL 12768, at *21 (S.D.N.Y. Jan. 3, 2006), aff'd, 313 F. App'x 347 (2d Cir. 2008) (denying motion to exclude terrorism expert challenged, inter alia, for faulty methodology). His background will not prevent adequate cross-examination.
Defendant's motion to preclude plaintiff's expert Gil Erez from testifying and to exclude his report is denied. Mr. Erez is a retired colonel of the Israel Defense Forces ("IDF") who served in military intelligence and currently teaches in the Intelligence Section of the IDF Academy of Tactical Command, at the IDF College of Command and General Staff, and at the University of Haifa. He retired from the IDF in 2006.
Plaintiff proffers Mr. Erez to opine on whether Hamas is responsible for the attack and with regard to the authenticity of a video that purports to depict the attack (the "Video").
Defendant challenges Mr. Erez's qualification to serve as an expert and the reliability of his methodology. Mr. Erez has experience, from his service in the IDF, investigating terrorist attacks that involved analysis of photographs or videos produced by terrorist groups. His opinion of the Video is based on a topographical analysis of the terrain surrounding the attack, a comparison of the topographical analysis to still frames from the Video, identification of the weapon and manner of firing depicted in the Video, and a comparison of still frames from the Video with photographs taken during the attack.
Asserted by Mr. Erez is that Hamas's claims of responsibility for the Attack are credible. Mr. Erez reaches this conclusion by analyzing several data points, including the content of the Video and the timing of its release to the public, as well as his analysis of Internet postings claiming credit for the attack that he attributes to Hamas.
Mr. Erez's qualifications and methodology meet the standard required by Daubert and Rule 702. His experience, background and skills qualify him to testify as to Hamas's responsibility for the attack and the authenticity of the Video. The Video itself is of limited probative value with regard to the Bank's liability for plaintiff's injuries, but the difficulty of obtaining direct evidence of Hamas's participation in the attack will force plaintiff to rely on circumstantial evidence for the jury to understand Hamas's participation-or lack thereof-in the attack. The witness's background will not prevent adequate cross-examination.
Defendant's motion to preclude plaintiff's expert Igal from testifying and to exclude his report is denied. (Igal's last name is withheld pursuant to the protective order applicable to this case. See Rep. and Rec., Gill v. Arab Bank, PLC, 12-CV-3706 (Aug. 23, 2012) (Pohorelsky, M.J.), CM/ECF No. 57 (interpretation of confidentiality designations under the applicable protective order)). Igal is a retired 24-year veteran of the ISA. He served as the head of the ISA Southern District Headquarters responsible for counter-terrorism investigations in Gaza.
He opines on Hamas's responsibility for the attack, the relationship between Hamas and the Defenders of Al Aqsa (a group that also claimed credit for the attack), and the identity of the individual responsible for firing the gunshot that wounded plaintiff.
Defendant's argument to exclude Igal's report and testimony is similar to arguments made in favor of excluding the reports and testimony offered by Dr. Alshech and Mr. Erez, see Parts III.A.2-3, supra. Igal's analysis of Internet-based material is rooted in the methodology employed by other experts in his field. His specialized knowledge will assist the jury to understand the evidence and determine the facts. He is qualified as an expert by his ...