Software Engineering Expert is Challenged for Proffering Alleged Legal Conclusions in Robocall Case

Court: United States District Court for the Southern District of FloridaJurisdiction: FederalCase Name: Eldridge v. Pet Supermarket, Inc.Citation: 2020 U.S. Dist. LEXIS 39100

Facts

The plaintiff alleged that the defendant used an automatic telephone dialing system (ATDS) to make unwanted calls and violated the Telephone Consumer Protection Act (TCPA). An ATDS system is equipment capable of processing or generating telephone numbers to be called using a random number generator and then dialing those numbers. Under TCPA, individuals are able to bring claims of unsolicited ATDS calls. The plaintiff filed a putative class action lawsuit and retained a software engineering expert witness to explain the technical aspects of an ATDS and testify how the defendant was in violation of the TCPA.

The Software Engineering Expert Witness

The software engineering expert witness had 34 years of telecommunications industry experience and had testified or consulted in about 360 TCPA cases. He had previous experience as a software engineer, including the responsibility to design, develop, test, and deploy computer code for complex data telecommunications systems. The software engineering expert witness also taught telecommunications network technologies, authored textbooks, and co-founded the first mobile marketing system based on combined text messaging.

The expert testified that two of the defendant’s telephone systems were able to store or produce phone numbers using a random number generator and dial such numbers. The expert relied solely on an operational handbook and log files to determine how the defendant’s telephone systems worked. He also performed a user-based phone system test run by sending out trial texts and reviewing user interface screenshots.

The defendant sought to exclude the software engineering expert witness, claiming his testimony was unhelpful to the trier of fact in determining the ascertainability of the putative class. The defendant claimed the expert had failed to perform any analysis of the proposed class or to develop any hypothesis to determine whether telephone numbers and subscriber information can even be cross-referenced. The defendant argued that the expert was unreliable for failing to support his conclusions with any substantive facts. Instead, the defendant suggested that the expert relied on flawed definitions of what constitutes an ATDS under the TCPA. The defendant also claimed that the expert was lacking the relevant telephone systems knowledge and training to opine on the subject. The defendant further asserted that even if the expert had used a proper methodology, his views should not stand because they contained unacceptable legal conclusions.

Discussion

The court acknowledged that the software engineering expert witness possessed advanced qualifications in the field of telecommunications systems and met expert eligibility requirements under Daubert. The court also noted that the record contained additional corroborating evidence of the materials the expert consulted on the operational details of the defendant’s telephone system. The court explained that even though the expert had not physically examined the phone system, there was sufficient evidence that otherwise gave the expert’s opinion ancillary credibility.

The court, however, stated that the expert’s report did not rely on any specific expertise to ascertain the proposed class. The expert presented his findings based on current contact data and the corresponding call dates. He then said third-party information service companies could use this telephone number data to identify proposed class members. To this point, the court explained that this opinion did not rely on any advanced expertise and did not offer information above that which a lay witness could present. Thus, the court considered this to not be an expert opinion and struck this portion of testimony. Finally, in response to the defendant’s claims of unacceptable legal conclusions, the court explained that the expert had merely tracked TCPA’s language and left it to the jury to evaluate whether the telephone systems were an ATDS. This, the court deemed, had not crossed into proffering an unacceptable legal conclusion.

Held

The defendant’s motion to exclude the software engineering expert witness’s testimony was granted in part and denied in part.