Plaintiffs' Motion and Memorandum in Support in Limine to Exclude the Testimony of David Peterson

    at »e 

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

- EASTERN DIVISION 

  

Civil Action No. 4:96-CV-104-BO(3) 

MARTIN CROMARTIE, et al, 

Plaintiffs, 

Y. 

JAMES B. HUNT, in his official capacity 
as Governor of the State of North Carolina, 

et al., 

State Defendants, 

and 

ALFRED SMALLWOOD, et al , 

Defendant-Intervenors. 

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PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF 
DAVID WEST PETERSON : 

NOW COME plaintiffs through counsel and respectfully move the Court to exclude the 

proffered expert testimony of David West Peterson under Federal Rule of Evidence 703 as 

interpreted by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 

Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny. The legal and 

factual grounds for this motion are set forth in the attached sieiorandon and are incorporated 

herein by reference. 

[A 
This the [§ day of October 1999. 

 



  

a. 

  

Robinson O. Everett 
Everett & Everett 
N.C. State Bar No.: 1385 
Attorney for the Plaintiffs 
P.O. Box 586 

Durham, NC 27702 

Telephone: (919)-682-5691 

Williams, Boger, Grady, Davis & Tuttle, P.A. 

AAS Ae 
  

Martin B. McGee 
State Bar No.: 22198 
Attorneys for the Plaintiffs 
P.O. Box 810 

Concord, NC 28026-0810 

Telephone: (704)-782-1173 

  

a E. Markham 
Texas State Bar No. 12986975 
Attorney for the Plaintiffs 
333 Clay Suite 4510 

Post Office Box 130923 

Houston, TX 77219-0923 

Telephone: (713) 655-8700 

Facsimile: (713) 655-8701 

 



      

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

Civil Action No. 4:96-CV-104-BO(3) 

MARTIN CROMARTIE, et al, ) 

Plaintiffs, ) 

) 
V. ) 

) 
JAMES B. HUNT, in his official capacity ) PLAINTIFFS’ MEMORANDUM 
as Governor of the State of North Carolina, ) IN SUPPORT OF THEIR MOTION 

et al., ) IN LIMINE TO EXCLUDE THE 

State Defendants, ) TESTIMONY OF DAVID PETERSON 

) 
and ) 

) 
ALFRED SMALLWOOD, et al., ) 

Defendant-Intervenors. ) 

) 
  

INTRODUCTION 

Plaintiffs have moved for eo elinion of the proffered expert testimony of David West 

Peterson, Ph.D. under Federal Rule of Evidence 702 as interpreted by the United States Supreme 

Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 

L.Ed.2d 469 (1993). The basis for this motion is that Dr. Peterson’s “segment analysis” is 

neither reliable nor relevant, and Beniots fails both requirements of the Daubert test for expert 

testimony. Therefore, this Court should exercise its gatekeeper function and exclude Dr. Peterson 

from testifying as an expert witness. 

 



  

    

    

STATEMENT OF THE CASE: 

In connection with their defense against Plaintiffs’ claim of racial redistricting in this case, 

the State Defendants have proffered as an expert witness Dr. David West Peterson. On Feb. 27, 

1998 Dr. Peterson offered an expert opinion in his affidavit that “the path taken by the boundary 

of the Twelfth District can be attributed to political considerations with at least as much statistical 

certainty as it can be attributed to racial considerations.” Exhibit 19, First Peterson Affidavit 3c. 

“In other words, there is no statistical indication that race was the predominant factor 

determining the border of the Twelfth District, there is at least one other explanation that fits the 

data as well as or better than race, and that explanation is political identification.” Id. 

This Court, despite the above conclusion and affidavit of Dr. Peterson, granted summary 

judgment to the plaintiffs. The defendants appealed the grant of summary judgment to the 

Supreme Court. Relying heavily on the Peterson affidavit, the Supreme on ruled that a 

genuine issue in fact existed as to whether the 12" District was PPedonEly based on racial or 

political considerations; and it remanded the case to this Court for a trial on the merits. See Hunt 

v. Cromartie, 526 U.S. | 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Thereafter, this Court 

provided for discovery and scheduled trial for the term of November 1, 1999. 

On September 8, 1999, Dr. Peterson submitted a Second Affidavit. See Discovery Exhibit 

20, Second Peterson Affidavit. On September 20, 1999, he was deposed in preparation for the 

November 1, 1999 trial. Upon review of his two affidavits and his deposition, as well as other 

materials relating to his data and conclusions, plaintiffs have moved in limine to exclude Dr. 

Peterson’s testimony on the ground that it is inadmissible under Rule 702 of the Federal Rules of 

Evidence. 

 



        

FACTS: 

In order to assist him in the development of his data, Dr. Peterson was provided maps and 

information by the State of North Carolina. See Peterson Deposition at 36. This information was 

used to determine, precinct by precinct: 

a. the number of residents by racial category according to the 1990 U.S. 
census, 

b. the number of voting age residents by racial category according to the 
1990 census, 

c. the number of registered voters therein, by racial category according to 
local registration records, 

d. the number of people who voted for each major candidate in the 1988 
Smith-Lewis Court of Appeals election, 

e. the number of people who voted for each major candidate in the 1988 
Gardner-Rand Lieutenant Governor election, 

f. the number of people who voted for each major candidate in the 1990 
Helms-Gantt U.S. Senatorial election, and 

g. The number of registered voters by political affiliation. See Discovery 
Exhibit 19, First Peterson Affidavit q 4. ' 

From this data Dr. Peterson then calculated for each precinct the percentage of African 

Americans in the total population, voting age population, and registered voters, as well as the 

percentage of votes cast for the Dembcratic candidates in the three elections, and the percentage 

of voters registered as Democrats. See Discovery Exhibit 19, First Peterson Affidavit 95. 

According to his first affidavit, Dr. Peterson included only people who were identified with one of 

the two major parties in calculating the party affiliation percentages. See id. Sg n.3. This had 

the effect of overstating both the Democratic and Republican representation. See Peterson 

Deposition at 78." 

  

'For example, if 60% of the voters in a district were registered as Democrats, 30% of the 
voters in that same district were registered as Republicans, and 10% of the voters were registered 
as Independents, the number of Democrats would be calculated at 66.7% and the number of 
Republicans would be calculated at 33.3%. As the number of registered independent voters 

<3. 

 



        

Dr. Peterson did not have precinct level political data for Davie County, which was 

adjacent to the 12" District in the 1997 plan. See Exhibit 19, First Peterson Affidavit n.1. 

Therefore, in comparing the nine precincts inside the 12% District with the territory of Davie 

County, Dr. Peterson substituted the seven Minor Civil Divisions of Davie County for that 

county’s twelve or thirteen precincts. See id.> In comparisons 198 to 210, the 13 segment 

comparisons along the boundary of Davie County and the 12" District, Dr. Peterson assigns to 

each Minor Civil Division within the county the same percentage vote for the three election 

results and the same percentage of registered voters as every other Davie County township. 

Thus, apparently the county wide election and voter registration data was prorated to each Minor 

Civil Division. See Peterson Deposition at 64-70. 

The unreliability of Dr. Peterson’s data is also illustrated by his use of data that on its face 

is erroneous. For example, according to his data there are several precincts a more registered 

African-American voters than voting age African-Americans. See Peidrion Deposition at 41. 

One precinct has 44 blacks of voting age and 132 registered black voters- three times as many 

African-American registered voters as African-Americans of voting age. See Peterson Deposition 

at 42. 

Dr. Peterson’s analysis is predicated on comparisons made with respect to 234 segments 

  

grows, the statistics are further skewed. Thus, if 60% of the voters in a district were registered as 
Democrats, 10% were registered as Republicans, and 30% were registered as Independents, the 
number of Democrats would be calculated at 95.7% and the number of Republicans would be 
calculated at 14.3%. 

*Minor civil divisions are townships. Davie has 7 townships, but had 12 precincts in 1988 
and 13 in 1990 according to the official canvasses of votes. No election results are calculated at 
the township level. 

A. 

 



  

along the perimeter of the 12" District. “To examine the correlation of the Twelfth District 

boundary with the race of people living along its path, I identified each of the precincts that touch 

the boundary, and divided the boundary into segments each of which separates one precinct inside 

the District from the one just outside.” Exhibit 19, First Peterson Affidavit § 8. Although his 

explanation is somewhat unclear, the subsequent discussion in Dr. Peterson’s affidavit makes clear 

that if a precinct inside the 12" District touches portions of 2 precincts outside the 12% District, 

(or two Minor Civil Divisions in the instance of Davie County), two “segments” are involved. 

Likewise, if a precinct adjacent to the 12* District touches two precincts within the 12% District, 

two “segments” are involved? 

For each segment, Dr. Peterson determined whether the percentage of African Americans 

in the total population, voting age population and voter registration was greater in the inside 

precinct than in the outside precinct. None of these calculations involved absolute numbers, but 

only percentages.’ If the percentage on the inside was higher, Dr. Peterson assigned that segment 

  

*See Exhibit 19, First Peterson Affidavit § 8. These segments are not only the basic units 
of measurement for Dr. Peterson’s analysis but also are the only units of measurement for his 
analysis. See Peterson Deposition at 14-20, 50. 

‘Dr. Peterson did not weigh or take into account the total number of people inside each 
precinct, but only made a comparison between the percentages of the inside and outside precincts 
along each segment. See Peterson-Deposition at 48-51. For example, in this analysis, a segment 
in which there were 2,000 African-Americans out of 3,000 total population in the inside precinct 
and 5 African Americans out of 30 total population in the outside precinct would be given the 
same weight as a segment for which the corresponding figures were 20 African Americans out of 
30 total population in the inside precinct and 8 out of 48 African Americans in the outside. In 
other words, the actual population numbers along the District boundary are irrelevant to Dr. 
Peterson’s analysis. All that matters is whether one precinct had a larger or smaller black or 
Democratic percentage than its segment counterpart across the District line. 

 



  

a value of 1. If it was lower, it was given a value of 0. See Peterson Deposition at 30-32. The 

aggregate score was divided by 234, the total segment number, to arrive at these percentages: 

For all of the segments along the border of the 12" District, 79.1% of the inside precincts had 

higher percentages of black total populations; 79.9% of the inside precincts had higher 

percentages of black voting age populations; and 79.5% of the inside precincts had higher 

percentages of black registered voters. See Exhibit 19, First Peterson Affidavit 1709. 

In a similar manner, for each of these segments Dr. Peterson also used each of the four 

party preference measures to determine whether the Democratic strength was greater in the inside 

precinct than the outside precinct. For all the segments along the border of the 12 District, 

80.8% of the inside precincts had higher Democratic percentages in the 1988 Lewis-Smith 

Election than did the outside precincts; 78.6% of the inside precincts had higher Democratic 

percentages in the 1988 Rand-Gardner Election; 80.8% of the inside precincts had higher 

Democratic percentages in the 1990 Helms-Gantt Senate Election: ad 84.3% of the inside 

precincts had higher Democratic percentages of registered voters. See id. 11. 

From these segment measurements of race and of party preference, Dr. Peterson 

concluded that the path taken by the border of the 12™ District had some positive correlation with 

both the racial composition and the party preferences of the local residents. See id. "i 10, 12. He 

also concluded from comparing the very similar percentages of the racial and party indicators, that 

“the statistical evidence supporting party affiliation as an important determinant of the boundary is 

at least as strong, and marginally stronger, than the statistical evidence supporting race as an 

important determinant of the boundary of the Twelfth District.” /d. § 13. 

After noting that most of the 234 segments “converged”- i.e., had a greater representation 

be 

 



  

of both African-Americans and Democrats in the same precinct- Dr. Peterson did no further 

anlysis of those precincts. Thus, the overwhelming majority of the segments are disregarded in 

determining whether party predominated over race. See, e.g. Exhibit 19, First Peterson Affidavit 

f 18 (only using 41 out of 234 comparisons). Dr. Peterson’s analysis treats all convergent 

segments as equally probative of the racial or political hypothesis, regardless of the differences in 

the level of the percentages with respect to party or to race. See Peterson Deposition at 48. 

Thus, a segment with 1,000 blacks in the inside precinct and 5 in the outside precinct and another 

segment with 1,500 Democrats in the inside precinct and 1,200 in the outside would be 

considered equally probative of the racial and political hypothesis; and each would be totally 

disregarded in the remainder of Dr. Peterson’s analysis. 

After discarding the “convergent” segments, Dr. Peterson went on to do an analysis of the 

“divergent” boundary segments, i.e., where the representation of Afioan: Arion: was greater 

in the precinct on one side of the District line, while the Democratic lings was greater in the 

precinct on the other side of the border. See Exhibit 19, First Peterson Affidavit 16. He then 

further divided the “divergent” boundary segments into two types. The first type was labeled 

Type R. Type R consisted of the segments for which the representation of blacks on the inside 

precinct was greater than that in the outside precinct and for which the representation of 

Democrats was greater in the outside precinct than on the inside. See id. Type P, on the other 

hand, consisted of the segments where the representation of blacks on the outside was greater and 

the representation of the Democrats on the inside was greater. See id. 

Dr. Peterson then postulated that “a Type R divergent boundary segment favors the Race 

Hypothesis over the Political Hypothesis, while a Type P segment favors the Political Hypothesis 

2 

 



  

over the Race Hypothesis.” Id. § 17. 

Dr. Peterson used three different racial percentages, namely, percentages of African- 

Americans in total population, voting age population, and registered voters. For party preference, 

there were four different measures-voter registration and results in three statewide elections. 

Therefore twelve different combinations were possible in determining whether a boundary 

segment was divergent. See id. 18. 

For each of the twelve combinations, Dr. Peterson measured the total number of Type P 

divergent segments against the total number of Type R divergent segments. See id. If there were 

more Type P divergent segments than Type R segments, he concluded that the combination 

supported the Political Hypothesis over the Race Hypothesis. Conversely, if there were more 

Type R divergent segments than Type P divergent segments, Dr. Peterson concluded that the 

combination supported the Race Hypothesis. See id. In making his calculations, Dr. Peterson 

made no effort to consider the magnitude of the differences across the boundaries of the rere 

segments. See Peterson Deposition at 48. 

Dr. Peterson then totaled up the combination results. According to his calculations, seven 

of the combinations had more Type P divergent segments than Type R divergent segments, three 

of the combinations had more Type R segments than Type P segments, and two of the 

combinations apparently were tied." See id. 19. In his computations, Dr. Peterson used four 

segments involving the 12™ District boundary with Davie County, for which the Minor Civil 

Divisions were used because of the unavailability of precinct data. See Exhibits 21-25. Even 

more significantly, he gave equal weight to comparisons of party registration, even though the 

State claims that the legislature relied more on the results of the three statewide elections rather 

-8- 

 



  

than on party registration. See, e.g., Cooper Deposition at 66. If the party registration data had 

not been considered, and the flawed data for the Davie County Minor Civil Divisions had been 

excluded, Dr. Peterson’s analysis would have yielded an entirely opposite result, and would have 

supported the Racial Hypothesis rather than the Political Hypothesis.’ 

Dr. Peterson also noted that ten boundary segments were divergent according to all of the 

twelve combinations of race and party affiliation measures. See Exhibit 19, First Peterson 

Affidavit § 20. Of these ten “unequivocally” divergent boundary segments, he concluded that six 

supported the Political Hypothesis, while four supported the Race Hypothesis. See id. However, 

three of the six segments used to support the Political Hypothesis involved measurements of 

Davie County Minor Civil Divisions.® 

To bolster his conclusion that “the statistical support for the Political Hypothesis is at least 

as strong as that for the Racial Hypothesis, and indeed slightly stronger,” Dr. Peterson noted that 

the Democrats were a majority in the 12" District by all four eats he used; while there was 

not a majority of African-Americans in the 12" District by any of the three racial measures he 

used. See id. 21. From this he reasoned that the creation of a Democratic majority in District 

12 was a more important consideration than was the creation of a black majority. See id. 

However, in reaching this conclusion, he did not mention that his data demonstrates that in 

  

’In that event, plaintiffs calculate that seven of the combinations would support the Race 
Hypothesis, none would support the Political Hypothesis, and two provide equal support for 
either hypothesis. 

°If the three segments based on faulty data were excluded, then there would be three 

segments, rather than six, that support the political hypothesis and four segments that support the 
race hypothesis. 

30. 

 



  

North Carolina African-Americans who register and vote almost always do so as Democrats.” If 

the representation of blacks in the 12 District were as Peterson’s affidavit recites-47% of the 

total population, 43% of the voting age population, and 46% of the registered voters-it would be 

inevitable that a substantial majority of the persons in the district would register and vote as 

Democrats. Thus, a predominant legislative motive of creating a 47% minority district would 

have the inevitable result of also creating a majority Democratic district. 

Dr. Peterson’s degree is in electrical engineering, and he stated in his deposition that he is 

qualified to conduct and offer opinions on “segment analysis” because he is an applied 

mathematician. See Peterson Deposition at 9. Although he has testified in a number of other 

types of cases, prior to this case Dr. Peterson had never testified on any occasion concerning 

redistricting. See id. at 8. He did not review any materials from the Section 5 Voting Rights Act 

Submission of the North Carolina legislature, and at the time of his deposition, he was “not 

familiar with that material by that name.” Id. at 15. At his deposition, Dr. Peterson was not able 

to identify or locate on a map any of the particular segments used in his analysis. See id. at 84. 

Dr. Peterson developed his “segment analysis” after being asked by Mr. Speas, counsel for 

the State defendants, “whether one could address the issue statistically of whether race had been 

the predominate factor in the drawing of the boundaries of the 12% district.” Peterson Deposition 

at 11. Dr. Peterson has not performed a “segment analysis” on any other past, present, or 

proposed Congressional or other political district in the United States. See id. at 16. Except for 

his two affidavits, Dr. Peterson has not written or published any other writings regarding 

  

"All the evidence in the case shows that in North Carolina at least 95% of the African- 
Americans register and vote do so as Democrats. 

«10 

 



  

redistricting. See id. at 18. Thus, his “segment analysis” has never been subject to peer review 

and has never been tested or reproduced in any context? 

Dr. Peterson’s analysis only concerns itself with the boundary segments abstracted from 

his precinct data. It does not take into consideration any precinct that is not adjacent to the 

boundary of the 12" District in the 1997 Plan.’ Thus, many “core” precincts, as well as outside 

precincts nearby but not adjacent to the boundary of the 12® District are excluded from Dr. 

Peterson’s analysis. 

Dr. Peterson’s analysis does not attempt to account for geographic factors, such as 

whether or not a precinct is a “connector” precinct, whether or not the boundary of the 12" 

District is running along a county line,'® whether the precincts being analyzed are of an urban or 

rural nature, or whether a particular decision to move a particular precinct into or out of the 12% 

District would leave the 12" District non-contiguous or lacking in NE See 

Peterson deposition at 62." 

  

*Plaintiffs were finally allowed to purchase an electronic version of Dr. Peterson’s data in 
order to attempt to reproduce his conclusions on Friday, October 15, 1999-three days before the 
Monday, October 18 deadline for this motion, although hard copies of the data were provided 
earlier. 

’According to Dr. Peterson, his analysis would not be affected in any way if the precincts 
which do not touch the border were 100% white or 100% black. The same would be true 
whether the core precincts were 100% Republican or Democrat. Nor would his analysis be 
affected by any other characteristic, demographic or political of the 12% District “core” precincts 
that did not touch the boundary. See Peterson Deposition at 70-71. 

“The 12™ District borders the east and south side of Davie County and the west side of 
Cabarrus County. 

""'The 12™ District narrows to only one precinct in a number of places, where a connector 
precinct is necessary to keep the district technically contiguous. A comparison of Exhibit M from 
Plaintiff’s Motion for Summary Judgement and county maps from the 1997 Section 5 Submission 

~}1~ 

 



  

Dr. Peterson’s analysis does not characterize as trivial any of the differences in his 

comparisons of precincts along the segments. See Peterson Deposition at 56. In his observation 

#160, he compares High Point Precincts 1 and 4, which have 4 out of 1, 212 and 7 out of 2,114 

African-American registered voters respectively. See id. at 59-60. Since 7 out of 2,114 persons 

is a higher proportion than is 4 out of 1,212, Dr. Peterson used this observation to conclude that 

there was a higher proportion of African-Americans outside the district than inside the district for 

that segment. See id. at 60. Accordingly, this segment was classified as a Type P divergent 

segment and used to support the hypothesis that party was more of a factor than race. See id. at 

59. 

Finally, according to Dr. Peterson, his analysis makes no attempt to account for the more 

fundamental decisions that took place in the formation of the 12 District. See Peterson 

Deposition at 87-88. Primarily, Dr. Peterson did not consider what would be the results of his 

analysis if the General Assembly did possess a predominately race waded motive to create a district 

of approximately 550,000 persons in which the “black community” in Charlotte would be 

connected with the “black communities” of Greensboro, Winston-Salem, and High Point.'> Thus, 

his analysis would be unaffected by information that the persons drafting the 1997 plan had 

  

shows a minimum of three such precincts in Mecklenberg County, one in Iredell County, four in 
Davidson County, one in Guilford County, and one in Forsyth County. 

A district is technically contiguous when every part of the district is touching every other 
part, and there are no “chunks” that are geographically separated from each other. In other 
words, to be technically contiguous a line must be able to be drawn from one point in the district 
to any other point in the district without leaving the district. If this is possible, no matter how 
serpentine the line would have to be, the district is technically contiguous. 

"*Nor is there any indication as to what would be the results of applying Dr. Peterson’s 
analysis to the predominately race based 12" District created by the 1992 Plan or to any districts 
elsewhere which have been held to be predominately race based. See Peterson Deposition at 15. 

12 

 



  

moved the “Greensboro black community” into the 12% District and later compensated therefor by 

subtracting 60,000 persons from that district. See id. at 15. 

| ARGUMENT 

I. THIS COURT HAS A GATEKEEPER DUTY UNDER DAUBERT TO ENSURE THE 
RELIABILITY AND THE RELEVANCE OF DR. PETERSON’S EXPERT TESTIMONY 
BEFORE ADMITTING IT. 

Under Daubert v. Merrell Dow Pharmaceuticals, Inc., the trial judge, acting as 

“gatekeeper,” must “ensure that any and all scientific testimony or evidence admitted is not only 

relevant, but reliable.” 509 U.S. 579, 589, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469, 480 (1993). 

“This requirement will sometimes ask judges to make subtle and sophisticated determinations 

about scientific methodology and its relation to the conclusions an expert witness seeks to offer.” 

General Electric Co. v. Joiner, 522 U.S. 136, 147, 118 S.Ct. 512, 520, 139 L.Ed.2d 508, 519- 

520 (1997) (Breyer, J., concurring). However, “neither the difficulty of the task nor any 

comparative lack of expertise can excuse the judge from exercising the gatekeeper’ duties that 

the Federal Rules impose.” Id. at 148, 118 S.Ct. at 520, 139 L.Ed.2d at 520. “To the contrary, 

when law and science intersect, those duties often must be exercised with special care.” Id. 

“As in all questions of admissibility, the proffering party must come forward with evidence 

from which the court can determine that the proffered testimony is properly admissible.” 

Maryland Casualty Company v. Therm-O-Disc, Inc., 137 F.3d 780, 783 (4™ Cir.1998). 

However, “there is no requirement in Daubert, or any other controlling authority, that the 

proffering party must prove anything to the court before the testimony in question can be 

admitted.” /d. “Before admitting evidence, the court will have found it more likely than not that 

the technical issues and policy concerns addressed by the Federal Rules of Evidence have been 

13 

 



  

iY ® 
afforded due consideration.” Bourjaily v. United States, 483 U.S. 171, 173,107 S.Ct. 2775, 

2779, 97 L.Ed.2d 144, 152 (1987). 

Although the abuse of discretion standard is the appropriate standard of review for a trial 

court’s decision to admit or exclude expert testimony, “trial court discretion in choosing the 

manner of testing expert reliability is not discretion to abandon the gatekeeping function.” Kumho 

Tire Co. v. Carmichael, US._ ,1198.Ct. 1167, 1179, 143 L Ed.2d 238, 256 (1999)   

(Scalia, J., concurring). Moreover, Justice Scalia adds that the trial court’s discretion “is not 

discretion to perform the function inadequately. Rather, it is discretion to choose among 

reasonable means of excluding expertise that is fausse and science that is junky.” 1d.'* 

The Daubert test is two-pronged. “Faced with a proffer of expert scientific testimony, 

then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is 

proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or 

determine a fact in issue.” Daubert v. Merrell Dow Pharmaceuticals, 309 U.S. 579, 592, 113 

S.Ct. 2786, 2796, 125 L.Ed.2d 469, 482 (1993). “This entails a preliminary assessment of 

whether the reasoning or methodology underlying the testimony is scientifically valid and of 

whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 592- 

593, 113 S.Ct. at 2796, 125 L.Ed.2d at 482. Put another way, the expert testimony has to be 

both reliable and relevant. See id. at 589, 113 S.Ct. at 2795, 125 L.Ed.2d at 481. Unless Dr. 

  

See also U.S. v. Iron Cloud, 171 F.3d 587 (8" Cir.1999) (reversible error not to allow 
Daubert hearing on preliminary breath tests); Weisgram v. Marley Company, 169 F.3d 514 (8* 
Cir.1998) (district court abused its broad discretion in allowing suspect testimony); Tanner v. 
Westbrook, 174 F.3d 542 (5 Cir.1999) (trial court abused its discretion by not excluding medical 
expert); Padillas v. Stork-Gamco, Inc., 186 F.3d 412 (3™ Cir.1999) (failure to hold an in limine 
hearing to assess admissibility of a stricken expert was an abuse of discretion). 

214 

 



RN oa 
Peterson’s proffered testimony satisfies both requirements of the Daubert test-reliability and 

  

relevance, it must be excluded. 

II. DR. PETERSON’S TESTIMONY MUST BE EXCLUDED BECAUSE IT FAILS TO 
SATISFY THE RELIABILITY REQUIREMENT OF DAUBERT. 

According to Daubert, “the primary locus of this obligation (to ensure the reliability of 

scientific testimony) is Rule 702, which clearly contemplates some degree of regulation of the 

subjects and theories about which an expert may testify.” Daubert, 509 U.S. at 589, 113 S.Ct. at AS] 

2795, 125 L.Ed.2d at 480. “The subject of an expert’s testimony must be 

“scientific... knowledge”. Id. at 590, 113 S.Ct. at 2795, 125 L.Ed.2d at 480-481. “In order to 

qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific 

method. Proposed testimony must be supported by appropriate validation.” Jd. Thus, in cases 

involving scientific evidence, evidentiary reliability is based on scientific validity, i.e., whether or 

not the principle supports what it purports to show. See id. at 590 n.9, 113 S.Ct. at 2795, 125 

L.Ed.2d at 481. 

Daubert enjoins all federal trial toss to “make a preliminary assessment of whether the 

reasoning or methodology underlying the testimony is scientifically valid.” Id. at 592-3, 113 S.Ct. 

at 2796, 125 L.Ed.2d at 482. According to the Supreme Court, “many factors will bear on the 

inquiry, and we do not presume to set out a definitive checklist or test.” Jd. The factors that 

might bear on a judge’s gatekeeping determination include: (1) Whether a theory or technique can 

be and has been tested, (2) Whether it has been subjected to peer review and publication, (3) 

Whether there is a high known or potential rate of error, and (4) Whether the theory or technique 

enjoys general acceptance within a relevant scientific community. See Kumho Tire Company v. 

-15- 

 



  

se Se 
Carmichael, ___U.S.__ , 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238, 251 (1999). 

According to Kumho, “the factors identified in Daubert may or may not be pertinent in 

assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the 

subject of his testimony.” /d. In addition, the trial judge may consider several more factors if he 

deems them relevant. See id., 119 S.Ct. at 1175, 143 L.Ed.2d at 252. Factors that courts have 

considered relevant include: (1) the existence and maintenance of standards controlling the 

technique’s operation; (2) the relationship of the technique to methods which have been 

established to be reliable; (3) the expert witness’s qualifications; and (4) the non-judicial uses to 

which the method has been put. See Heller v. Shaw Industries, Inc., 167 F.3d 146, 152 (3" 

Cir.1999) (citing In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 742 n.8 (3" Cir. 1994). 

These factors are “simply useful signposts, not dispositive hurdles.” Id. “The district 

court must examine the expert’s conclusions in order to determine whether ey could reliably 

follow from the facts known to the expert and the methodology used.” yb? at 133. “The 

reliability analysis applies to all aspects of an expert’s testimony: the methodology, the facts 

underlying the expert’s opinion, the link between the facts and the conclusion.” Id. at 155. “Any 

step that renders the analysis unreliable, renders the expert’s testimony inadmissible.” Curtis v. 

M&S Petroleum, Inc., 174 F.3d 661, 670.(5" Cir.1999). “Not only must each stage of the 

expert’s testimony be reliable, but each stage must be evaluated practically and flexibly without 

bright-line exclusionary (or inclusionary) rules.” Heller, 167 F.3d at 155. 

Thus under a Daubert reliability analysis, the ultimate question remains whether the 

scientific principle is valid, i.e, “does it support what it purports to show?” Daubert, 509 U.S. at 

590 n.9, 113 S.Ct. at 2795, 125 L.Ed.2d at 481. 

~16~ 

 



oe "e 
A. Dr. Peterson’s “segment analysis” fails all Daubert and Paoli factors. 

  

  

Although the Daubert factors are “simply useful signposts, not dispositive hurdles,” 

Heller, 167 F.3d at 152, it bears emphasis that every one of the signposts mentioned in Daubert 

and Paoli is pointing this Court down the road to exclusion. 

1._Dr. Peterson’s “segment analysis” has not been tested. 
  

The first factor is whether the theory or technique can be and has been tested. Dr. 

Peterson’s calculations and results cannot be independently verified. They result from 

manipulation of a proprietary computer program not commercially available or in the public 

domain. The selection of segments is based on a visual review by a subordinate of a set of 

pencilled maps, and may be in error." The segment matches in Dr. Peterson’s analysis can be 

replicated, but any such replication would depend on data which is known to have numerous 

defects. Admittedly, anyone trying to reproduce Dr. Peterson’s analysis from the same defective 

data would probably produce the same questionable results. However, plaintiffs submit that if the 

data were corrected, the results would not-remain the same, as is detailed hereinafter. 

Finally, making substitutions of precincts, as Dr. Peterson’s approach suggests would be 

the option of the General Assembly, might leave within a Congressional District some precincts 

that had become non-contiguous islands. . To state it differently, race motivated decisions to link 

th urban concentration of African-Americans may require use of white connector precincts as land 

bridges, as to which the Dr. Peterson’s “segment analysis” has little meaning. Such precincts 

would skew any attempt to test its validity. 

  

“Dr. Peterson could not remember this employee’s name or details regarding the maps. 
See Peterson Deposition at 33. 

17- 

 



  

te a 

2. Dr. Peterson’s “segment analysis” has not been published or subjected to peer review. 
  

As for the peer review and publication factor, Dr. Peterson’s “segment analysis” has never 

seen the light of day apart from this litigation. Thus, it has not been subjected to peer review and 

publication in any academic, scientific, or technical publication. Nor is Dr. Peterson aware of 

anyone else who has done a “segment analysis” resembling the one he performed on the 12" 

District. See Peterson Deposition at 16. 

3. Dr. Peterson’s analysis has a very high potential rate of error. 

The third factor of Daubert is whether there is a high known or potential rate of error. In 

light of this factor, it is astonishing that despite obvious errors in his data, such as the Davie 

county data and the instances in which the numbers of black registered voters more than doubled 

the numbers of blacks in the population, Dr. Peterson took no steps to research and correct his 

data. Nor did he exclude from his analysis those precincts for which data et clearly erroneous. 

Also, Dr. Peterson was unaware that his analysis had included some Es which were 

themselves composed of non-contiguous bits of territory. See Peterson Deposition at 44. 

Even worse, for each combination he used, Dr. Peterson did not bother to look at the 

differences in race and party in the convergent segments, and thus arbitrarily discarded 

approximately 80% of his segment observations. See, e.g., Exhibit 19, First Peterson Affidavit 

18 (focusing on 41 divergent segments and not bothering to take into account the remaining 193). 

Then for the remaining few divergent segments, Dr. Peterson did not set any threshold for the 

magnitude at which differences became important or meaningful. Consequently, he gave the same 

weight to a difference of 10 to 20 percentage points as he gave to a difference of less than a single 

percentage point. See, e.g,. Exhibit 23. This circumstance, together with his failure to weight the 

-18- 

 



  

“e he 
precincts by population and to consider any potential significant disparities between race and 

politics in the convergent segments, renders Dr. Peterson’s analysis hopelessly disconnected from 

the demographic realities that produced the 12" District’s boundaries. 

Finally, the fluctuation between the differing possible combinations in Paragraph 19 of Dr. 

Peterson’s first affidavit must be carefully examined. Of a total of twelve differing measurements, 

Dr. Peterson reports that seven result in a pattern of divergent boundary segments favoring the 

political hypothesis over the race, three result in a pattern favoring the race over the political, and 

two result in a pattern equally strong for both. See Exhibit 19, First Peterson Affidavit 1 19. 

These variable results show the unreliability of the analysis. 

Ironically in view of his testimony that voter registration is the “least reliable indicator,” 

Peterson Deposition at 80, Dr. Peterson highlights the results of a comparison measurement of 

the divergent precincts using party registration. See Exhibit 19, First Peterson Affidavit 118. 

According to the defendants, party registration was not emphasized when determining partisan 

strength. See Cooper Deposition at 66. Second, Dr. Peterson himself, in criticizing the work of 

another expert in this case, demonstrates that in many cases the proportion of registered 

Democrats far exceeds the proportion of people who actually vote for the Democratic candidates. 

See Exhibit 20, Second Peterson Affidavit §f 11-14. Finally, these comparisons rely significantly 

on the flawed Davie County data, which pro-rates the voter registration data for the whole 

county. See Exhibits 21-23. Thus, plaintiffs calculate that of the nine analyses that do not involve 

party registration, if one excludes the portions of Dr. Peterson’s analysis that rely on comparisons 

with external precincts in Davie County, then seven of the analyses support the Racial Hypothesis, 

none support the Partisan Hypothesis, and two provide equal support for either! 

-19- 

 



oe be 

The inevitable conclusion is that if any improvement or refinement of Dr. Peterson’s 

    
analysis can throw its results off this much, the potential error rate is much too high to put any 

credence in it. 

  

4. Dr. Peterson’s “segment analysis” is not generally accepted in the relevant scientific 
community. 

Finally, as to the fourth Daubert factor-whether the method is generally accepted in the 

relevant scientific community-it goes without saying that this method, which is unique to this case, 

is barely, if at all, known to the relevant scientific community, much less accepted. 

5.Dr. Peterson did not establish and maintain sufficient standards controlling the 
operation of his “segment analysis.” 
  

As for other possible relevant factors besides those enumerated in Daubert, plaintiffs urge 

this Court to consider the factors listed in In re Paoli Railroad Yard PCP Litigation. 35 F.3d at 

742 n.8. These are (1) the existence and maintenance of standards controlling the technique’s 

operation, (2) the relationship of the technique to methods which have been established to be 

reliable, (3) the expert witness’s qualifications, and (4) the nonjudicial uses to which the method 

has been put. See id. The first of these factors, the existence and maintenance of standards 

controlling the technique’s operation, is sometimes included in the Daubert known or potential 

rate of error factor. As demonstrated above, Dr. Peterson failed to establish any such standards 

oe to screen out unreliable data or to minimize the impact of insignificant differences between the 

precincts being compared in his segments. 

6. Dr. Peterson’s “segment analysis” lacks any meaningful relationship to methods 
previously established to be reliable in determining predominance of racial motivation. 
  

  

The second Paoli factor, the relationship of the technique to methods which have been 

-20- 

 



  

be be 
established to be reliable, is especially damning to Dr. Peterson’s analysis. Dr. Peterson’s analysis 

lacks a number of elementary considerations that political scientists have usually looked at in 

Shaw cases to determine whether or not the shape of a voting district was predominately 

motivated by race. It does not look at the total number of people potentially included or excluded 

on the basis of race. It doesn’t look at the cores of the district and the overarching decisions that 

led to its basic shape. It doesn’t look at any other potential options available to the General 

Assembly, and it doesn’t take into account any of the potential motivating factors that were 

actually in play in the General Assembly. 

7._Dr. Peterson is not qualified to testify as a political scientist.   

These fatal defects in Dr. Peterson’s analysis can be traced in large part to his 

qualifications, the third Paoli factor. Dr. Peterson is not a political scientist. He has no training 

or expertise in this field. The fact that he has testified as an expert in statistics in numerous court 

cases does not qualify him as an expert in political science. 

In Wilson v. Woods, the 5™ Circuit upheld the exclusion of an expert on the cause and 

origin of fires who was attempting to “branch out” into a different field See Wilson v. Woods, 

163 F.3d 935, 937 (5" Cir.1999)."* The Court of Appeals noted that the district court’s finding 

that Mr. Rosenhan lacked the requisite qualifications was supported in the record, because his 

“expertise” in accident reconstruction was no greater than that of any other individual with a 
  

“The lower court had commented upon the expert as follows: “The court is familiar with 
Mr. Rosenhan, who has testified in this court on other occasions as an expert in the cause and 
origin of fires. He knows that field, and I have no hesitation in recognizing him as an expert in 
those fields. He’s very good at what he does. As a professional witness, he’s effective on the 
stand. For that reason, he has branched out into the field of accident reconstruction. And 
obviously, attorneys think that he’s effective at what he does. That, however, does not make him 
an expert in that field.” Wilson v. Woods, 163 F.3d 935, 937 (5* Cir. 1999) 

1 

 



" Se 
general scientific background. See id. 

  

Similarly, although Dr. Peterson has a lengthy record as an expert witness in some types of 

cases, like Mr. Rosenhan he does not have any expertise in the relevant field, in this case, political 

science. Furthermore, “under the regime of Daubert...a district judge asked to admit scientific 

evidence must determine whether the evidence is genuinely scientific, as distinct from unscientific 

speculation offered by a genuine scientist.” Allison v. McGhan Medical Corporation, 184 F.3d 

1300, 1316-1317 (11™ Cir.1999) (quoting Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7* 

Cir.1996). 

8. Dr. Peterson’s “segment analysis” has no non-judicial usefulness 
  

Finally, as to the fourth Paoli factor-whether or not there has been any non-judicial use of 

Dr. Peterson’s “segment analysis” -obviously no such use has occasioned.'® Moreover, because of 

its intractable methodological pitfalls, plaintiffs can foresee no possible use one would make of 

Dr. Peterson’s “segment analysis” if they were genuinely attempting io roach an accurate 

understanding of why any legislative body decided to draw voting districts in the manner it did. 

In sum, all the factors or “signposts” of Daubert and Paoli are pointing the same way for 

Dr. Peterson’s testimony: to the exit. 

B. Dr. Peterson’s “segment analysis” n what it pur how, violating th 
nce of D 

The objective of Daubert’s reliability prong is to ensure that the proposed testimony is 

“supported by appropriate validation-i.e. ‘Good grounds,’ based on what is known.” Daubert, 

  

' Cf. Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1383 (4™ Cir.1995) (refusing to 

declare certain methodologies invalid and unreliable in light of the medical community’s daily use 
of the same methodologies in diagnosing patients). 

32. 

 



oe _— 

S09 U.S. at 590, 113 S.Ct. at 2795, 125 L.Ed.2d at 481. Thus, evidentiary reliability must be 

  

based on scientific validity-ie. whether the method used supports what it purports to show. See 

id. 

In this case, there are too many fundamental and irredeemable flaws in Dr. Peterson’s 

testimony to come close to meeting the Daubert reliability requirement. The underlying data is 

faulty on its face as to an entire county, as well as for a number of additional precincts.!” No 

weighting is made of the population of the measured precincts. No weighting is made of the 

respective levels of partisan and racial strengths in the precincts. No allowance is made for 

external factors impinging on the choices of precincts, such as following county lines or the need 

to maintain rural connectors between the various heavily African-American urban cores of 

Greensboro, High Point, Winston-Salem, and Charlotte, and the smaller African-American parts 

of Statesville, Lexington, Thomasville, and Salisbury. No further analysis is done on the 

composition and variation between race and party of the convergent precincts. No attention is 

given to the core precincts of the 12" district, or to any surrounding non-adjacent precincts in 

regard to their relative populations. The number and type of divergent precincts fluctuates widely 

among the various combinations of comparisons, with only ten “unequivocally” divergent 

segments. And of those ten, three involve the faulty data of Davie county, three favor the partisan 

Fr hypothesis, and four favor the racial hypothesis under Dr. Peterson’s own criteria. 

Thus, if Dr. Peterson’s “segment analysis” actually were a valid measurement of the 

  

"Note for example that Dr. Peterson’s data shows Charlotte precinct 77 [identified on p.2 
of his data as involving the inner precinct in segments 13-15] on p. 10 cast 515 votes for the 1988 
Democrat candidate for Lt. Gov. (Rand) and 217 for the Republican (Gardner). In contrast, the 
attached Mecklenburg election results from the Secretary of State report that Rand took 1257 
votes and Gardner 529 votes in that precinct in that year in that contest. 

23. 

 



  

we a 
political and racial demographics of the boundary of the 12™ District, which it is not, even by its 

own terms it would not support his final conclusion. “Any step that renders the analysis 

unreliable, renders the expert’s testimony inadmissible.” Curtis v. M&S Petroleum, Inc., 174 F.3d 

661, 670 (5™ Cir.1999) (quoting /n re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 745 (3™ 

Cir.1994). Dr. Peterson takes so many unreliable steps that this Court is left with little choice but 

to slam the gate shut when he tries to enter with his “segment analysis.” 

III. DR. PETERSON’S EXPERT TESTIMONY MUST BE EXCLUDED BECAUSE IT 
FAILS TO MEET THE RELEVANCE REQUIREMENT OF DAUBERT 

Many of the same problems which render Dr. Peterson’s “segment analysis” unreliable, 

also cause it to fail the relevancy requirement of Daubert. “Rule 702 further requires that the 

evidence or testimony ‘assist the trier of fact to understand the evidence or to determine a fact in 

issue.” Daubert, 509 U.S. at 591, 113 S.Ct. at 2795, 125 L.Ed.2d at 481. The issue of relevancy 

under Rule 702 “is whether expert testimony proffered in the case is sufficiently tied to the facts 

of the case that it will aid the jury in resolving a factual dispute.” Id., 113 S.Ct. at 2796, 125 

L.Ed 2d at 481. This is referred to as “fit.” “Fit’ is not always obvious, and scientific validity for 

one purpose is not necessarily scientific validity for other, unrelated purposes.” Id. “Rule 702's 

‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a 

precondition to admissibility.” Jd. at 591-592, 113 S.Ct. at 2795, 125 L.Ed.2d at 482. 

Although the focus of Daten “must be solely on principles and methodology, not on the 

conclusions that they generate,” Id. at 595, 113 S.Ct. at 2797, 125 L.Ed.2d at 484, “conclusions 

and methodology are not entirely distinct from one another.” General Electric Company v. 

Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 519, 139 L.Ed.2d 508, 519 (1997). “Trained experts 

24. 

 



  

te a 
commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of 

Evidence requires a district court to admit opinion evidence which is connected to existing data 

only by the ipse dixit of the expert.” Id. “A court may conclude that there is simply too great an 

analytical gap between the data and the opinion proffered.” Id. 

“The district courts must scrutinize whether the principles and methods employed by an 

expert have been properly applied to the facts of the case.” Kumho Tire Co. v. Carmichael, 

__US.__ ,119S8.Ct. 1167, 1178, 143 L.Ed,2d 238, 256 (1999). “Evidence must have a valid 

scientific connection to the disputed facts in the case.” Allison v. McGhan Medical Corporation, 

184 F.3d. 1300, 1312 (11™ Cir.1999). The relevance prong of Daubert requires that the expert 

testimony “logically advances a material aspect of the proposing party’s case.” Id. 

Dr. Peterson’s “segment analysis” fails to fit the purpose for which it is proffered. It has 

no valid scientific connection to the disputed facts in this case, and Rane doesn’t logically 

advance a material aspect of the defense’s case. 

Dr. Peterson claims that he was retained to “determine the extent to which political 

affiliation might explain as well as, or better than, race the boundary of District Twelve.” Exhibit 

19, First Peterson Affidavit § 2. More particularly, Dr. Peterson was asked “to determine 

whether, based on the statistical pattern of association relating the boundary of the Twelfth 

District and the racial and political makeup of nearby residents, race appears to have been the 

predominant factor in defining that boundary.” Id. (emphasis added). 

As Dr. Peterson himself admitted, it is quite possible that this same sort of “segment 

analysis” would indicate a predominance of party over race even for a district which a court may 

have already invalidated under the conclusion that race was indeed the predominant factor. See 

25. 

 



  

te Go 
Peterson Deposition at 18. But the fundamental flaw in Dr. Peterson’s “segment analysis” is that 

the methodology Dr. Peterson chose to address his task does not get him anywhere close to being 

able to answer the issue this Court is to determine, that is whether race predominated in the 

formation of the 12™ District. He did not take into account the “racial and political makeup of 

nearby residents” that were only one precinct removed from the boundary. Many residents within 

a couple of blocks or less than a mile from the 12™ District boundaries were not even looked at in 

his analysis, because they were not inside an adjacent precinct. 

This methodology is particularly inappropriate and unhelpful to the trier of fact when a 

number of defense witnesses have testified that they sought to maintain the “core” of the previous 

incarnation of the 12™ District in the 1992 plan. Instead of looking at the core, Dr. Peterson 

chose to look at the edges. It wouldn’t matter if every interior precinct in the 12% District had 

5,000 people or 5, or were 100% white, 100% black, 100% Democrat, 100% Republican, or 

100% Libertarian. Dr. Peterson’s analysis would be the same. Converialy. it wouldn’t matter if 

every other outside precinct in a county split by the 12" District that was not directly adjacent to 

the border had 5,000 people or 5, were 100% white, 100% black, 100% Democrat, 100% 

Republican, or 100% Libertarian. Dr. Peterson’s analysis would be the same. This raises a 

serious and profound gap between Dr. Peterson’s methodology and the question before the 

Court. His data and conclusions simply fail to consider crucial information without which this 

Court cannot make an accurate finding of fact concerning the predominance of race in the 12 

District. 

Defendants may argue that at the minimum Dr. Peterson’s methodology sheds some light 

on the contours on the boundary of the 12™ District, even if it doesn’t look at the cores or the 

26. 

 



  

we we 

macro level decisions that went into the forming of the 12% District. See Peterson Deposition at 

87 (Peterson conceding that his analysis is not a decisionmaking analysis). But Dr. Peterson’s 

“segment analysis” is not even helpful to the trier of fact for this limited purpose. 

Dr. Peterson’s failure to weight the precincts by population or degrees of difference in his 

initial measurements is enough to render it unhelpful to a trier of fact attempting to understand the 

boundary demographics of the 12" Districts. Dr. Peterson’s failure to take into take into account 

any level of significant difference between party and race in the convergent segments, 

approximately 80% of all the segments, also by itself renders his analysis unhelpful. So does his 

failure to take into account any possible individual idiosyncratic explanations for any one 

precinct’s presence or exclusion in a district based on geography. See id. at 85. 

It is startling that Dr. Peterson doesn’t even know where any of the particular precincts in 

his segments actually are on the map. See id. at 83-84. To his analysis, it didn’t matter. See id. 

It also didn’t matter to his analysis whether his segments were comparing precincts in 

Mecklenburg county which provided a plurality of the African-American population for District 

12 or for counties which provided less than 5% of the African-American population. See id. at 

72. It didn’t matter whether a precinct was a rural connector precinct or a urban precinct in 

downtown Charlotte; each boundary line between an inside and outside precinct was given equal 

weight. 

Thus, for Dr. Peterson’s analysis, the size of the precincts, the location of the precincts, 

the size of the difference of the comparison along the segments, none of these things mattered. 

And because none of these things were relevant to his “segment analysis,” his “segment 

analysis” has no practical relevance to the actual decisions made to include or exclude particular 

7. 

 



  

we a 
precincts along the boundary of the 12" District, or even the nature of the precincts themselves. 

Therefore, this “segment analysis” is not helpful to this Court in any conceivable way to shed light 

on any issue it is being called upon to decide in this case. There is not merely an analytical gap 

between Dr. Peterson’s data and the opinion he offers, there is an unbridgeable chasm that 

separates his methodology from the realities of the 12" District. Accordingly, Dr. Peterson’s 

“segment analysis” fails the relevance requirement of the Daubert test, and this Court should 

exercise its gatekeeping responsibility and exclude the testimony of Dr. Peterson. 

CONCLUSION: 

For the reasons stated above, plaintiffs respectfully move this Court to grant their Motion 

in limine to exclude the expert testimony of Dr. Peterson. 

This the 18th day of October, 1999 

Klan Lvl by 
Robinson O. Everett 

Everett & Everett 

N.C. State Bar No.: 1385 

Attorney for the Plaintiffs 

P.O. Box 586 

Durham, NC 27702 

Telephone: (919)-682-5691 

  

228. 

 



    

oe 

Williams, Boger, Grady, Davis & Tuttle, P.A. 

    Martin B. McGee 
State Bar No.: 22198 

Attorneys for the Plaintiffs 
P.O. Box 810 

Concord, NC 28026-0810 

Telephone: (704)-782-1173 

  

Louse = tho fry JH 
Dougla§’E. Markham / A 
Texas State Bar No. 12986975 

Attorney for the Plaintiffs 

333 Clay Suite 4510 
Post Office Box 130923 

Houston, TX 77219-0923 

Telephone: (713) 655-8700 

Facsimile: (713) 655-8701 

30. 

 



o® wh 

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

. EASTERN DIVISION 

  

Civil Action No. 4:96-CV-104-BO(3) 

ALFRED SMALLWOOD, et al , 

Defendant-Intervenors. 

MARTIN CROMARTIE, et al., ) 
Plaintiffs, ) 

) 
V. ) 

) 
JAMES B. HUNT, in his official capacity ) 
as Governor of the State of North Carolina, ) 

et al., ) 

State Defendants, ) 

: ) 
and ) 

) 
) 
) 
)   

ORDER EXCLUDING THE TESTIMONY OF DAVID WEST PETERSON 

Upon motion by plaintiffs, the proffered expert testimony of David West Peterson is 

hereby excluded pursuant to Federal Rule of Evidence 703 as interpreted by the United States 

Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 

125 L.Ed.2d 469 (1993). 

This the __ day of October 1999. . 

  

United States District Court Judge Presiding 

 



  

wh we 

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

Civil Action No. 4:96-CV-104-BO(3) 

ALFRED SMALLWOOD, et al., 

Defendant-Intervenors. 

MARTIN CROMARTIE, et al., ) 
Plaintiffs, ) 

) 
V. ) 

) 
JAMES B. HUNT, in his official capacity ) 

as Governor of the State of North Carolina, ) 

et al., ) 

State Defendants, ) 

) 
and ) 

) 
) 
) 
)   

CERTIFICATE OF SERVICE 

I certify that I have this day served the PLAINTIFFS’ MOTION IN LIMINE TO 

EXCLUDE THE TESTIMONY OF DAVID WEST PETERSON, the proposed ORDER 

EXCLUDING THE TESTIMONY OF DAVID WEST PETERSON, and PLAINTIFFS’ 

MEMORANDUM IN SUPPORT OF THEIR MOTION IN LIMINE TO EXCLUDE THE 

TESTIMONY OF DAVID PETERSON via hand delivery to the following addresses: 

Ms. Tiare B. Smiley, Esq. 

Special Deputy Attorney General 

North Carolina Department of Justice 
114 W. Edenton St., Rm 337 

Raleigh, NC 27602 

 



wh 

Mr. Adam Stein ; 
Ferguson, Stein, Wallas, Adkins, Gresham, Sumter, PA. 
312 W. Franklin St. 
Chapel Hill, NC 27516 

In addition, I also certify that I have served the foregoing documents by depositing a copy of same in the United States mail, postage prepaid, addressed to: 

Mr. Todd A. Cox 
NAACP Legal Defense & Educational Fund, Inc. 
1444 Eye Street, NW 10% Floor 
Washington, DC 20005 

This the 18th day of October 1999 

ol) A 
  

Robinson O. Everett 

Attorney for the Plaintiffs 
Everett & Everett 

N.C. State Bar No.: 1385 

P.O. Box 586 

Durham, NC 27702 

Telephone: (919) 682-5691