United States District Court, S.D. Florida
ORDER GRANTING DEFENDANTS' MOTION TO EXCLUDE
TESTIMONY OF CARWIL R. BJORK-JAMES
I. COHN DISTRICT JUDGE.
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"). 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.
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")). 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.
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."
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.