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Mamani v. Berzain

United States District Court, S.D. Florida

February 26, 2018

ELOY ROJAS MAMANI, et al., Plaintiffs,



         THIS CAUSE is before the Court upon Defendants' Amended Motion to Exclude the Bjork-James Database and Opinions [DE 399 in Case No. 07-22459; DE 374 in Case No. 08-21063] ("Motion").[1] The Court has considered the Motion, Plaintiffs' Response and Defendants' Reply, the parties' related submissions, and the record in these cases, and is otherwise advised in the premises. For the reasons stated below, Defendants' Motion is granted.

         BACKGROUND [2]

         Plaintiffs proffer Carwil R. Bjork-James as an expert on Bolivian political culture. See Defendants' Ex. 2 ¶¶ 1-3 (Opening Expert Report of Carwil Bjork-James ("Bjork-James Report")).[3] Dr. Bjork-James is an assistant professor of anthropology at Vanderbilt University. Id. ¶ 3. His dissertation fieldwork "consisted of twelve months of ethnographic observation, oral history interviews, and documentary evidence collection in Bolivia, " during which he "consulted and interviewed social movement leaders and protest participants in Cochabamba, La Paz, and Sucre." ¶ 5. Dr. Bjork-James offers the following opinions:

A. Bolivia has a highly contentious political culture marked by high levels of participation in protest, high levels of involvement in large grassroots organizations, frequent intervention of these organizations in matters of public policy, and the expectation that the governments will negotiate with, rather than criminalize or physically disperse, protesters. Id. at 14.

B. Frequent disruptive protest is the norm in Bolivia's political culture. The September-October 2003 protests were largely comprised of common elements within Bolivia's so-called repertoire of contention. Id. at 20.

C. Bolivian legal traditions authorize the country's widespread unionization, its variety of civil society organizations, and these organizations' unusually broad right to engage in disruptive strikes. Informally, policing and prosecutorial practice have usually respected these rights during the democratic period. When they occur, large deployment of force by the police or army may attract public criticism. Id. at 34.

D. The events of September and October 2003, while larger in scale than in prior years, generally involved the use of tactics within the Bolivian repertoire of contention, and were conducted with the expectation of negotiating with the Sanchez de Lozada government. Calls for the president's resignation were also consistent with longstanding political traditions. Id. at 38.

E. The police and military response to the September and October 2003 protests is a quantitative outlier, far outside the general approach of Bolivian democratic governments in its lethality. This is true even though other democratically elected presidents have faced more frequent and more intense protests. Id. at 44.

F. In the current democratic era, other Bolivian presidents have responded to large-scale and highly disruptive protests by exercising greater restraint, avoiding or limiting bloodshed. The impulse to do so is an important part of Bolivia's post-dictatorship democratic political culture.

Id. at 47.

         Opinions D, E, and F conclude, in other words, that a disproportionate degree of state-perpetrated political violence occurred during the second presidential term of Defendant Lozada. This finding is based largely upon what the parties refer to as Dr. Bjork-James's "death database" (the "Database"). See Bjork-James Report ¶¶ 27-29. The Database, which Dr. Bjork-James has spent several years assembling, lists "some 425 deaths related to political conflict [in Bolivia] since the resumption of democracy in 1982, including deaths of protestors and security forces during confrontations, assassinations, deaths of social movement participants while in state custody, accidental deaths of people engaged in protest, and incidental deaths caused by the process of conflict." Id. ¶ 28. Dr. Bjork-James concedes that the Database is a "work in progress, " and that it will probably include roughly 500 deaths once complete, Id ¶ 28; Defendants' Ex. 1 at 260:10-13 (Deposition Transcript of Carwil R. Bjork-James ("Bjork-James Dep. Tr.")). The Database is "organized to consider variables related to victims, perpetrators, cause of death, [and] domain of protest." Bjork-James Report ¶ 29. Critically, the Database purports to assign responsibility for the various killings and labels certain ones as "intentional." Id.

         Defendants move to exclude testimony regarding the Database for failing to satisfy the standards set forth in Federal Rule of Evidence 702 and Daubert v. MerrellDow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. DE 399-1 at 9-15. Their challenge is premised upon the purported unreliability of both the Database's input data and the methodology used to assemble the Database, Id. Defendants note that Dr. Bjork-James cannot independently vouch for the accuracy of the data, since he did not gather the data and has made no effort to corroborate it. See, e.g., Bjork-James Dep. Tr. at 263:25-264:19. Nor can Dr. Bjork-James explain the methodology underlying the Database's death attribution labels. Those were assigned-sometimes by his research assistant acting independently-on a discretionary basis without consistent, defined criteria. Id. at 221:6-225:14. And Defendants specifically challenge the accuracy of the particular source material for Dr. ...

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