Ashton al. v. Al Qaeda Islamic Army (In re Terrorist Attacks on Sept. 11, 2001)

• Decision Date: 27 April 2023
• Docket Number: 03-MD-01570 (GBD)(SN)
• Parties: In re TERRORIST ATTACKS ON SEPTEMBER 11, 2001
• Court: U.S. District Court — Southern District of New York

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In re TERRORIST ATTACKS ON SEPTEMBER 11, 2001

No. 03-MD-01570 (GBD)(SN)

United States District Court, S.D. New York

April 27, 2023

OPINION & ORDER

SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE.

The Court ordered the Plaintiffs' Executive Committees (“PECs” or “Plaintiffs”) and Defendants Dubai Islamic Bank (“DIB”), World Assembly of Muslim Youth and World Assembly of Muslim Youth International (together, “WAMY”), International Islamic Relief Organization (“IIRO”), Muslim World League (“MWL”), Abdullah Omar Naseef (“Naseef”), Abdullah bin Saleh al Obaid (“Obaid”), Abdullah Abdelmohsen al Turki (“Turki”), Adnan Basha (“Basha”), and Yassin Kadi (“Kadi”) (collectively “Defendants”) to file bellwether Daubert challenges to the opposing parties' proffered experts. ECF No. 7160. Between them, the parties moved to exclude the testimony of six witnesses. ECF Nos. 7342, 7345. Upon reviewing these witnesses' credentials, depositions, and the nine reports and declarations they produced, the Court grants in part and denies in part these motions.

BACKGROUND

The Court assumes familiarity with this multidistrict litigation and summarizes only the relevant procedural and factual background.

The parties retained a range of experts to opine on Defendants' alleged material support for al Qaeda and the 9/11 Attacks. During the expert discovery period ending August 6, 2021, they exchanged 23 proposed expert reports and conducted 16 depositions. See ECF No. 6815. These experts come from different professions, hold different degrees, use different methodologies, and speak to different aspects of the case. At the Court's instruction, the parties selected six experts to challenge under the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See ECF No. 7160. The Court's rulings on these challenges should guide the parties as they identify or move to exclude other expert witnesses.

Defendants moved to exclude the testimony of Brian Michael Jenkins (“Jenkins”) and Jonathan Winer (“Winer”). See ECF No. 7342. Jenkins, a senior advisor at the RAND Corporation, submitted a report entitled “The Road to 9/11: The September 11 Terrorist Attack on the World Trade Center” (the “Jenkins Report”), explaining how al Qaeda planned and executed the 9/11 Attacks. ECF No. 7344-3. Winer, a lawyer and consultant, submitted affirmative and rebuttal reports (“Winer I” and “Winer II,” respectively), addressing terrorist financing, the role of charities, and sanctions. See ECF Nos. 7344-1 7344-2.

Attached to its opposition brief, the PECs filed a new declaration from Winer defending his qualifications (the “Winer Declaration”). See ECF No. 7609. Defendants moved to strike the entire declaration as impermissibly argumentative, but the Court declined because “most of the Declaration's content [was] proper.” ECF No 7647 at 4. The Court noted, however, that the Winer Declaration contained “legal conclusions” and “pure argument,” which are beyond the scope of expert testimony. Id. at 3.

Then on June 17, 2022, following the declassification of Central Intelligence Agency documents in March and April, the PECs served Defendants with a “supplementary” report written by Winer (“Winer III”). ECF No. 8345-1. Defendants moved to exclude that report as procedurally improper and untimely under the Federal Rules of Civil Procedure, as well as inadmissible under the Federal Rules of Evidence and Daubert. See ECF No. 8343. The Court granted that motion and struck Winer III on March 6, 2023. ECF No. 8905. Objections to that order are currently pending before Judge Daniels. See ECF No. 8939.

The PECs moved to exclude the testimony of Jonathan Benthall (“Benthall”), Charles W. Freeman (“Freeman”), Jonathan Marks (“Marks”), and John Sidel (“Sidel”). ECF No. 7345. Benthall, an anthropologist who has studied charitable organizations in the Middle East, submitted two reports, one on behalf of the MWL, IIRO, Naseef, Obaid, Turki, and Basha, and the other on behalf of Kadi (collectively, the “Benthall Reports”). See ECF Nos. 7351-1, 7351-2. Freeman, a fellow at Brown University's Watson Institute for International and Public Affairs, wrote “Saudia Arabia's Society and Government” (the “Freeman Report”) on behalf of WAMY. ECF No. 7351-3. Marks and his accounting firm, Baker Tilly US, LLP, submitted a rebuttal report (the “Marks Report”) evaluating WAMY's finances. See ECF No. 7351-4. Sidel, the Sir Patrick Gillam Professor of International and Comparative Politics at the London School of Economics, produced a report discussing the history of religious conflict in the Philippines and Indonesia (the “Sidel Report”). See ECF No. 7351-5.

DISCUSSION

Expert testimony is governed by the Federal Rules of Evidence.^[1] Rule 702 tells us who may give expert testimony and about what; Rule 703 tells us what information they may rely on; and Rule 403 tells us when otherwise admissible testimony should be excluded. These Rules, and the body of caselaw interpreting them, help courts fulfill their “gatekeeping” role-“ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597.

Rule 702 permits a witness “qualified as an expert by knowledge, skill, experience, training, or education” to testify if:

• her “scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue”;

• her “testimony is based on sufficient facts or data”;

• her “testimony is the product of reliable principles and methods”; and

• she has “reliably applied the principles and methods to the facts.”

Fed. R. Evid. 702. The party proffering expert testimony “bears the burden of establishing these admissibility requirements.” In re Vivendi, S.A. Sec Litig., 838 F.3d 223, 253 (2d Cir. 2016).

Courts have a degree of “‘flexib[ility]'” to tailor the Rule 702 inquiry to the needs of the case and the discipline of the expert. United States v. Farhane, 634 F.3d 127, 158 (2d Cir. 2011) (quoting Daubert, 509 U.S. at 594). For experts in the hard sciences, courts often evaluate reliability using the four Daubert factors: whether the witness's “methodology or theory has been or can be tested”; whether it “has been subjected to peer review and publication”; its “error rate”; and whether it “has gained general acceptance” in the scientific community. Clerveaux v. E. Ramapo Cent. Sch. Dist., 984 F.3d 213, 233 (2d Cir. 2021) (citing Daubert, 509 U.S. at 593-94). But these factors are poorly suited to terrorism experts, who are often security officials, social scientists, accountants, or historians. See Zaremba v. Gen. Motors Corp., 360 F.3d 355, 358 (2d Cir. 2004) (explaining that Daubert factors should be applied only where reasonable). To ensure that their opinions are connected to the facts by more than “‘the ipse dixit of the expert,'” Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2002) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) [hereinafter Joiner]), courts may look to other factors to analyze an expert's reliability, such as:

• whether the expert will “‘testify about . . . [her] independent research . . . or whether the opinion was developed expressly for purposes of testifying'”;

• whether she “‘has unjustifiably extrapolated from an accepted premise to an unfounded conclusion'”;

• whether she “‘has adequately accounted for obvious alternative explanations'”;

• whether she is “‘as careful as [s]he would be in h[er] regular professional work'”; and

• whether her “‘field of expertise . . . is known to reach reliable results for the type of opinion offered.'”

Deutsch v. Novartis Pharms. Corp., 768 F.Supp.2d 420, 426 (E.D.N.Y. 2011) (quoting In re Silicone Gel Breast Implants Prods. Liab. Litig., 318 F.Supp.2d 879, 890 (C.D. Cal. 2004)).

Even a “qualified” and “reliable” witness cannot testify unless his opinions are helpful to the trier of fact. Fed.R.Evid. 702. As the Court of Appeals has explained, “[t]estimony is properly characterized as ‘expert' only if it concerns matters that the average juror is not capable of understanding on his or her own.” United States v. Mejia, 545 F.3d 179, 194 (2d Cir. 2008). It follows that testimony that “‘is not beyond the ken of the average juror'” is inadmissible as expert evidence. United States v. Zhong, 26 F.4th 536, 555 (2d Cir. 2022) (alterations in original) (quoting United States v. Amuso, 21 F.3d 1251, 1263 (2d Cir. 1994)).

Expert testimony must also be relevant. Relevance is measured against the proffering party's theory of the case. In re Pfizer Inc. Sec. Litig., 819 F.3d 642, 659 (2d Cir. 2016). It turns on whether the testimony “has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Amorgianos, 303 F.3d at 265 (cleaned up); accord Fed.R.Evid. 401.

Unlike lay witnesses, qualified expert witnesses are “permitted wide latitude to offer opinions” on relevant subjects, “including those that are not based on firsthand knowledge or observation.” Daubert, 509 U.S. at 592. In particular, experts in terrorism cases may be well- positioned to “synthesize dense or voluminous . . . texts,” “offer background knowledge or context that illuminates . . . past events,” or “identify, gauge the reliability of, and interpret evidence that would otherwise elude, mislead, or remain opaque to a layperson.” Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 135-36 (2d Cir. 2013). Here, this may include insight into “al Qaeda's origin, leadership, and operational structure, as such testimony will aid the jury in understanding” the group's history and...