736 F.3d 1060 (7th Cir. 2013), 13-1629, Goodpaster v. City of Indianapolis

Docket Nº:13-1629.
Citation:736 F.3d 1060
Opinion Judge:KANNE, Circuit Judge.
Party Name:Wanda GOODPASTER et al., Plaintiffs-Appellants, v. CITY OF INDIANAPOLIS, City-County Council of the Consolidated City of Indianapolis, Marion County, Indiana, and Mayor of Indianapolis, Indiana, Defendants-Appellees.
Attorney:Paul K. Ogden, Attorney, Ogden Law Office, Mark Small, Attorney, Indianapolis, IN, for Plaintiff-Appellant. Alexander P. Will, Attorney, Office of the Corporation Counsel, Indianapolis, IN, for Defendant-Appellee.
Judge Panel:Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.
Case Date:November 25, 2013
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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736 F.3d 1060 (7th Cir. 2013)

Wanda GOODPASTER et al., Plaintiffs-Appellants,

v.

CITY OF INDIANAPOLIS, City-County Council of the Consolidated City of Indianapolis, Marion County, Indiana, and Mayor of Indianapolis, Indiana, Defendants-Appellees.

No. 13-1629.

United States Court of Appeals, Seventh Circuit.

November 25, 2013

Argued Sept. 16, 2013.

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Paul K. Ogden, Attorney, Ogden Law Office, Mark Small, Attorney, Indianapolis, IN, for Plaintiff-Appellant.

Alexander P. Will, Attorney, Office of the Corporation Counsel, Indianapolis, IN, for Defendant-Appellee.

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge.

Appellants, who own bars in Indianapolis-Marion County, Indiana, filed suit seeking injunctive and declaratory relief against enforcement of the 2012 Indianapolis-Marion County smoking ordinance. The district court denied the bar owners' motion for a preliminary and permanent injunction and entered judgment in favor of the City. The bar owners now appeal.

I. BACKGROUND

In 2005, the City-County Council of Indianapolis and Marion County passed an ordinance prohibiting smoking in most buildings frequented by the general public. Indianapolis, Ind. Mun.Code §§ 616-201-04 (2010) (amended 2012). The City-County Council excepted several businesses from the ban, including bars and taverns with liquor licenses that neither served nor employed people under the age of eighteen, tobacco bars, and bowling alleys. Id. at § 616-204.

Seven years later, in 2012, the City-County Council expanded the 2005 ordinance by eliminating many of its exceptions. Indianapolis, Ind. Mun. Code § 616-204 (2013). As amended, the ordinance included exceptions for private residences, retail tobacco stores, tobacco specialty bars, and private clubs that voted to permit smoking. Id. The amended ordinance thus prohibited smoking in most Indianapolis bars and taverns.

A group of Indianapolis-Marion County bar owners affected by the ordinance then brought suit seeking declaratory and injunctive relief from the ordinance. In their amended complaint, they asserted due process, equal protection, takings and freedom of association claims under both the federal and Indiana constitutions. The bar owners filed a motion for a preliminary injunction, and the City filed a motion to dismiss for failure to state a claim. The district court consolidated the hearing on the preliminary injunction with a hearing on the merits.

At the hearing, several of the bar owners testified about the negative economic

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effects of the ordinance. All who were asked denied they were facing insolvency. The bar owners also proffered an expert, Dr. John Dunn, to testify that secondhand smoke exposure does not have negative health effects. Dr. Dunn is an emergency room doctor and professor who acquired his knowledge of epidemiology by reviewing the relevant literature and by speaking with his colleagues who were experts in the field. The bar owners submitted an expert report on Dr. Dunn's behalf titled " Dr. Dunn's Report to the Ohio Legislature." When the court asked about this report, Dr. Dunn said he didn't realize the bar owners had represented it as an expert report, and that he wouldn't have submitted it as such. During cross examination, Dr. Dunn readily acknowledged an article he wrote for the Heartland Institute in which he described those who opposed smoking as members of the " High Church of Holy Smoke Haters" and characterized Chicago, which had banned smoking, as " an anxious, slightly overweight suburbanite fretting over cigarette smoke."

The City also called an expert, Dr. Andrew Hyland, to testify as to the health effects of secondhand smoke. Dr. Hyland has a Ph.D. in epidemiology and has published more than 100 peer-reviewed articles on the effects of secondhand smoke. He testified that there had been scientific consensus since 2000 that secondhand smoke causes disease. He based his testimony primarily on the Surgeon General's 2006 report, The Health Consequences of Involuntary Exposure to Tobacco Smoke.

The City called a second expert, Dr. Terrell Zollinger, to testify as to the economic cost to the City from secondhand smoke. Dr. Zollinger is a professor of epidemiology at Indiana University's School of Public Health who has produced several reports on the economic impact of secondhand smoke in Marion County. To produce these reports, Dr. Zollinger first developed an attributable risk (i.e. the percentage of the risk of a disease that could be attributed to secondhand smoke exposure) for a condition based on the existing epidemiological research on secondhand smoke. Then, he multiplied this risk by the approximate cost of healthcare for someone with that particular diagnosis. This weighted cost estimate was then multiplied by the number of people diagnosed with that particular disease. He repeated this procedure for a number of diagnoses associated with secondhand smoke exposure. His final estimate of the costs of secondhand smoke exposure was $195,332,995.

Additionally, the City called Chris Gahl, the vice president of Visit Indy, an organization that promotes Indianapolis as a tourist destination as well as a site for conventions and other large events. He testified that Visit Indy supported the smoking ordinance because it believed the ordinance would attract new businesses, enhance visitors' experiences, and protect hospitality workers. Gahl further explained that when groups seek a host city for an upcoming convention, they often prefer cities with comprehensive smoking ordinances.

After the hearing, both the bar owners and the City filed their proposed findings of fact and conclusions of law. On March 6, 2012, the district court entered judgment in favor of the City, finding that the bar owners could not establish actual success on the merits of their claims. It also struck Dr. Dunn's testimony because he failed to provide an expert report as required by Fed.R.Civ.P. 26(a)(2). The bar owners now appeal.

II. ANALYSIS

A. Evidentiary Claims

The bar owners make several claims of evidentiary error, challenging the district

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court's decision to admit and credit the testimony of the City's experts Dr. Hyland and Dr. Zollinger, its decision to strike Dr. Dunn's testimony, and its findings that the surgeon general released a study on the effects of secondhand smoke and that the bar owners were not insolvent.

1. Expert Testimony

a. Dr. Hyland

The bar owners first assert that the court clearly erred when it found that secondhand smoke causes disease. The court based this finding on Dr. Hyland's testimony, which it found credible. Specifically, the bar owners challenge the court's understanding of relative risk and the methods behind the Surgeon General's report which Dr. Hyland used throughout his testimony.

In a bench trial or hearing without a jury, the district court judge acts as both gatekeeper and factfinder. He must determine both whether expert evidence is admissible under Federal Rule of Evidence 702 and whether it is credible. See Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.2000) ( " soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact." ).

These determinations, though often closely related to each other, require different levels of appellate scrutiny. When reviewing a district court's application of Rule 702, we review the court's choice of legal framework governing expert testimony de novo, while we review its decision to admit or exclude the proffered expert testimony for abuse of discretion. United States v. Parra, 402 F.3d 752, 758 (7th Cir.2005). Expert credibility determinations, on the other hand, are findings of fact, Smith, 215 F.3d at 718, and are thus reviewed for clear error. Furry v. United States, 712 F.3d 988, 992 (7th Cir.2013).

Thus, to properly analyze the bar owners' claims, we must determine whether they go to Dr. Hyland's credibility or the admissibility of his testimony under Rule 702. Rule 702 analysis focuses on the expert's methodology and the principles upon which his research rests. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 595, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (noting that the focus of the Rule 702 inquiry is " solely on principles and methodology, not on the conclusions that they generate." ). It is up to the trier of fact, however, to evaluate the " soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis." Smith, 215 F.3d at 718.

The challenge to the court's understanding of relative risk is essentially a challenge to the court's determination that Dr. Hyland was credible. Dr. Hyland's principles and methodology— epidemiology— provided a relative risk 1 value for

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secondhand smoke between 1.2 and 1.3. Dr. Hyland then offered the conclusion that this was sufficient to support a finding that secondhand smoke causes disease. The court found this conclusion credible when it credited Dr. Hyland's testimony.

We give a district court's credibility determinations of expert witnesses " great weight." United States v. Huebner, 752 F.2d 1235, 1245 (7th Cir.1985). In this case, there is no reason to disturb the district court's finding that Dr. Hyland was credible. He provided ample explanation for his...

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