In Hunt v. 21st Mortg. Corp., 2014 WL 1664288 (N.D.Ala. 2014), Judge Acker allowed Plaintiff’s TCPA expert Robert Biggerstaff to offer opinion testimony that the Defendant did not manually dial the calls to Plaintiff’s cellular telephone. Judge Acker’s decision was flavored by the fact that the Defendant installed a new dialer system within days after Plaintiff’s counsel’s wife filed the TCPA lawsuit and the Plaintiff’s expert had to re-construct the “old” system to offer his expert opinion.
At issue in this case is whether defendant is liable to plaintiff for phone calls it allegedly made to plaintiff in connection with a debt owed by plaintiff’s wife. Plaintiff has two claims for relief that have survived summary judgment and on which the two parties are now preparing for trial: a state law claim for invasion of privacy, and a federal claim under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. A key question for the latter claim is whether calls made by defendant were made using an “automatic telephone dialing system,” as defined by the Act. It is this question that Biggerstaff’s testimony attempts to address.
Judge Acker found that Mr. Biggerstaff’s opinion passed muster under Daubert.
With these standards in mind, the court cannot rule in the abstract on whether Biggerstaff is an “ex-pert” or not.FN2 Instead, the court must first identify precisely what it is that Biggerstaff intends to say, and then determine whether such testimony meets the Rule 702 requirements. Biggerstaff plans to offer two con-clusions at trial. First, he intends to testify that, against the background of the normal practices of the many other call centers he has seen in his career, the practices shown him at 21st Mortgage contain an “ergonomic incongruity.” Biggerstaff Report at 7. In short, the agents at 21st Mortgage dialed numbers using an extremely slow click-and-drag method with a com-puter mouse, while all the manual dialing Biggerstaff has witnessed at other companies involved pecking out the numbers on a 10–digit keypad with practiced rapididy. See id. ¶¶ 17–21. Presumably, plaintiff hopes that the jury will draw the inference that what 21st Mortgage showed Biggerstaff was not its true practice. Second, Biggerstaff intends to testify that he observed a “technological incongruity.” He intends to testify that 21st Mortgage’s facilities and infrastructure are generally well-designed, modern, and sophisticated. Id. ¶ 22. Were Biggerstaff an IT consultant for 21st Mortgage, as he has been for other companies, he would criticize his client’s enormously inefficient and wasteful use of all that hardware simply for old-fashioned hand-dialing. Id. ¶¶ 23–26. Presumably, plaintiff hopes that the jury will draw from this the inference that 21st Mortgage was not really so wasteful as all that, and in fact made full use of its hardware to efficiently autodial numbers. ¶ . . . Biggerstaff’s testimony meets the Rule 702 standard. Biggerstaff has “specialized knowledge [that] will help the trier of fact,” Rule 702(a), because, as a former IT professional who spent years consulting companies on setting up network systems, including phone dialing systems, he has a much better sense of what a “normal” network and telephone system setup looks like than a layperson would. His testimony is “based on sufficient facts or data,” Rule 702(b), be-cause he went to the 21st Mortgage facility and ob-served first-hand everything that 21st Mortgage allowed him access to, including, as relevant to the two general conclusions he plans to testify to, the server previously used by 21st Mortgage and the call-making simulation. He used “reliable principles and methods,” Rule 702(c), because his “method” is a simple process of comparison: he observed 21st Mortgage’s alleged call-making procedure, and then pointed out practical differences between it and the normal practices of the many other call centers he has seen. For the same reason, Biggerstaff “reliably applied,” Rule 702(d), those principles to this case.