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Trita Parsi and National Iranian American Council v. Seid Hassan Daioleslam

March 30, 2012

TRITA PARSI AND NATIONAL IRANIAN AMERICAN COUNCIL, PLAINTIFFS,
v.
SEID HASSAN DAIOLESLAM, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

This is a defamation case filed by plaintiffs Trita Parsi and the National Iranian American Council. Plaintiffs allege that defendant Seid Hassan Daioleslam published numerous false and defamatory statements that characterize plaintiffs as agents of the Iranian government. Plaintiffs have proffered two experts, Debashis Aikat and Joel Morse, to support their case. Currently before the Court are [92] [97] defendant's motions to exclude the testimony of both Aikat and Morse. For the reasons given below, both motions will be granted.

BACKGROUND

Dr. Parsi is the president of the National Iranian American Council ("NIAC"), a Washington, D.C.-based non-profit group that is "dedicated to promoting Iranian American involvement in American civic life and relying on the public for financial and human resource support." Compl. ¶¶ 9, 10. Defendant is an Arizona resident who has published articles about Parsi and NIAC on websites including . Id. ¶¶ 5, 11. Plaintiffs' complaint seeks damages and injunctive relief against defendant for common law defamation and portrayal in a false light. Id. ¶ 11. The thrust of plaintiffs' complaint is that defendant "has published false and defamatory statements indicating that [plaintiffs are] member[s] of a subversive and illegal Iranian lobby colluding with the Islamic Republic of Iran . . . ." Id. ¶ 13. Plaintiffs argue that these statements injured their reputations in the community, thereby hampering NIAC's effectiveness as an advocacy group and damaging its ability to raise funds. Id. ¶¶ 23, 42-43. Defendant argues that the statements are protected by the First Amendment because defendant did not publish the statements with actual malice and, in addition, the statements are true. See New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964); see also Parsi v. Daioleslam, 595 F. Supp. 2d 99, 104-06 (D.D.C. 2009) (finding that "actual malice" standard applies to this case).

Plaintiffs produced the reports of two experts to support different aspects of their case. The first, Debashis Aikat, a journalism professor, opined that defendant's writings about plaintiffs did not meet the standard of care for journalists. See Def.'s Mot. in Limine to Exclude Testimony of Debashis Aikat [Docket Entry 97] ("Def.'s Aikat Mot."), Ex. A ("Aikat Report"). Joel Morse, a financial economist, opined about the economic damages plaintiffs had sustained as a result of the alleged defamation. See Def.'s Mot. in Limine to Exclude Testimony of Joel Morse [Docket Entry 92] ("Def.'s Morse Mot."), Ex. A ("Morse Report"). Defendant has moved to exclude the testimony of both Aikat and Morse because, defendant contends, neither expert's testimony meets the standards of Fed. R. Evid. 702. The Court will address the testimony of each expert separately.

STANDARD OF REVIEW

The admissibility of expert testimony that draws on the expert's "specialized knowledge" is governed by Fed. R. Evid. 702, which provides that a qualified expert may testify on any subject that "will assist the trier of fact to understand the evidence or to determine a fact in issue" if the testimony is sufficiently reliable. Id. Testimony is reliable if "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Id. This Court's role is to act as a "gatekeep[er]," excluding any expert testimony that is not sufficiently reliable or helpful to the jury. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).

The Supreme Court has suggested several considerations for determining whether proposed expert testimony is admissible under Fed. R. Evid. 702: whether a theory or technique could be and has been tested, whether it has been subject to peer review and publication, what the known or potential error rate of the technique is, and whether the technique is "generally accepted." Daubert, 509 U.S. at 594; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149-51 (1999) (noting that inquiry is flexible and may be tailored to apply to cases based on specialized, rather than scientific, knowledge). The Supreme Court initially held that the focus of the Daubert inquiry was "solely on principles and methodology, not on the conclusions that they generate," Daubert, 509 U.S. at 595, but the Court modified that statement in General Electric Co. v. Joiner, 522 U.S. 136 (1997). The Joiner Court explained that while a judge must focus primarily on methodology rather than conclusions, "conclusions and methodology are not entirely distinct from one another . . . [and] nothing requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Id. at 146.

Even if proposed expert testimony comports with Fed. R. Evid. 702, it may nonetheless be excluded under Rule 403 "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." United States v. Gatling, 96 F.3d 1511, 1523 (D.C. Cir. 1996). Moreover, because "[e]xpert evidence can be both powerful and quite misleading," a court has greater leeway in excluding expert testimony under Rule 403 than it does lay witness testimony. Daubert, 509 U.S. at 595 (internal quotation marks and citation omitted).

DISCUSSION

I. Debashis Aikat

Debashis Aikat is a "Media Futurist and Associate Professor of Journalism and Mass Communication" at the University of North Carolina. Def.'s Aikat Mot, Ex. B. Aikat has never before served as a defense expert in defamation litigation. Def.'s Aikat Mot., Ex. C ("Aikat Depo.") at 38.

Plaintiffs asked Aikat to opine on three topics: (1) "[t]he general standard of care and compliance within the journalism community/industry as it applies to those persons who hold themselves out as journalist[s], including any varying standards of care and compliance for those who hold themselves out as cyber-journalists," (2) "[w]hether, and to what extent, you see evidence of 'willful blindness' in the writings of defendant as it relates to his assertions against the plaintiffs," and (3) "[w]hether the defendant had a duty to allow the plaintiffs an opportunity to respond to his assertions against them." Plfs.' Opp. to Def.'s Aikat Mot [Docket Entry 102] ("Plfs.' Aikat Opp."), Ex. C. In order to do so, Aikat read some of defendant's English-language articles posted on and . Aikat Report at 2-3. Aikat did not review any materials in Farsi, as he does not speak that language. Id. He also did not review any of the discovery produced in this litigation. Id.; see also Aikat Depo. at 33-37.

After reading those articles, Aikat provided a terse report. He opined that the standard of care for both print and online journalists was set out in a one-page "Code of Ethics" adopted in 1996 by the Society of Professional Journalists ("the Code"). The Code describes itself as "a guide for ethical behavior . . . [that] is voluntarily embraced by thousands of journalists." Plfs.' Aikat Opp., Ex. A. The Code is not "intended [to be] a set of 'rules.'" Id. According to Aikat, "[r]egardless of place or platform, scholars, writers, editors and other news professionals follow and abide by the SJP code." Aikat Report at 3. Aikat's report quoted the provisions of the Code at length, but did not specify which, if any, he believed that defendant had violated. See id. at 4-5.

After quoting the Code, Aikat opined that "there is ample evidence of 'willful blindness' in the writings of the Defendant." Id. at 6. Specifically, he wrote:

In their attempt to address controversial matters of public interest, several of the Defendant's writings provide definitive statements that are not supported or substantiated by adequate evidence . . . For good reason, the reading public cannot distinguish between misrepresented context and the truth.

In the absence of properly substantiated facts, several writings of the Defendant, seem to misrepresent the issues and context. For instance, the Defendant critiques the Plaintiff's professional ...


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