Telecommunications Expert Excluded In TCPA Class Action For “Merely Regurgitating Facts”

Court: United States District Court for the Northern District of Illinois, Eastern DivisionJurisdiction: FederalCase Name: Bakov v. Consol. World Travel, Inc.Citation: 2019 U.S. Dist. LEXIS 46510

Facts

A group of plaintiffs brought this class action lawsuit alleging that the defendant used an Indian company to place robocalls to the plaintiffs without their express consent violating the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. The Indian company called on behalf of the defendant to sell a free cruise ship with a pre-recorded audio track used. The calls were transferred to the defendants for a commission on the sale.

The plaintiffs identified 983,023 unique telephone numbers that were transferred using call records obtained from the defendant’s call centers. Both parties relied on expert witnesses and moved to preclude the opinions of each other’s experts.

The Telecommunications Expert

The plaintiff retained an expert in telecommunications expert who offered two opinions: that the calls made by the Indian company used a pre-recorded voice, and the identities and contact details of the customers contacted could be definitively and clearly identified using just the telephone numbers. He further added that doing so is fairly simple administrative work. The defendant moved to exclude both opinions.

Discussion

The court noted that an expert “must testify to something more than what is ‘obvious to the layperson’ in order to be of any particular assistance to the jury,” citing Dhillon v. Crown Controls Corp., 269 F.3d 865, 871 (7th Cir. 2001) (quoting Ancho v. Pentek Corp., 157 F.3d 512, 519 (7th Cir. 1998)). The court found the expert’s opinion regarding the use of a pre-recorded voice irrelevant because what may be obvious to an expert may not be so obvious to a layperson, and that the expert opinion should assist the trier of fact in understanding that.

The court, however, noted that it need not consider whether the expert’s opinion was fairly obvious to a layperson because it accepted the defendant’s argument that his methodology was unreliable. The telecommunications expert did not do any testing of his own. He did not even listen to the recorded voice. He only relied on testimonies and statements of interested parties. Because he found many mentions of the use of “pre-recorded audio” in the supporting case documentation, he took this for uncontested fact and conducted no analysis of his own to confirm it.

The court noted that “an expert opinion that simply accepts and regurgitates facts without any testing, corroboration, or analysis is suspect and fails to satisfy Rule 702”, citing Dixon ex rel. Dixon v. Cook Cty., No. 09 C 6976, 2012 U.S. Dist. LEXIS 136644, 2012 WL 4464460, at *3 (N.D. Ill. Sept. 25, 2012) (finding that an expert who “merely state[s] a fact and then provide[s] a conclusion, without providing any analysis as to how [they] reached such a conclusion” fails to satisfy Rule 702 and the Daubert standard); also citing Lang v. Kohl’s Food Stores, 217 F.3d 919, 924 (7th Cir. 2004) (“[E]xperts’ work is admissible only to the extent it is reasoned, uses methods of the discipline and is founded on data . . . talking off the cuff—deploying neither data nor analysis—is not an acceptable methodology.”).

The court noted that the telecommunications expert’s second opinion was also unreliable. He testified that he had no knowledge of class identification and certification and that he had exclusively depended on the methodology of Class Experts Group LLC, another one of the plaintiffs’ experts with expertise in this area. While the telecommunications expert oversaw the process by which telephone numbers were identified and claimed to have a general idea of how the process functions, he accepted that he was not an expert in the area. The court noted that “to admit expert testimony, the expert must have specific, specialized knowledge of the subject matter, not a general understanding.” The court also found the expert’s methods unreliable as he had solely depended on other’s expertise to form his opinion.

Held

The court accepted the defendant’s motion to exclude the opinions of the plaintiff’s telecommunications expert.