In O’Shea v. American Solar Solution, Inc., 2018 WL 2298207, at *2 (S.D.Cal., 2018), the District Court denied the Plaintiff’s summary judgment because, potentially, a jury could disbelieve the Plaintiff’s expert.
Plaintiff presents two arguments to the effect that it has carried its burden of demonstrating Defendant made 897,304 calls. First, Plaintiff argues that Defendant admitted as much by way of a joint stipulation of fact. Specifically, the parties’ jointly stipulated that “Plaintiff’s expert, Jeffrey A. Hansen (“Hansen”), has identified 897,304 total calls to 220,007 unique cell phones during the time period from November 22, 2012 through August 22, 2015.” (Joint Stipulation [Doc. 116-4] 38.) This argument is unpersuasive. From the fact that Defendant stipulated that Plaintiff’s expert in fact reached a certain conclusion, it does not follow that Defendant stipulated to the accuracy of that conclusion. Next, Plaintiff argues that it is entitled to summary judgment because no reasonable jury could doubt the accuracy of its expert’s report. In his report, Hansen contends that he received Defendant’s outbound dial list and imported it into a database. (Hansen Report ¶ 50.) Hansen then scrubbed this list against two telephone number databases that the telecommunications industry uses to distinguish cell phone numbers from landline numbers. (Id. ¶ 44.) Next, Hansen used these databases to identify which landline numbers had been ported into cell phone numbers and vice versa. (Id. ¶ 44, 51.) This scrubbing process led Hansen to conclude that Defendant placed 897,534 calls to 220,007 different cellphones during the relevant time period. (Id. ¶ 52.) Having reviewed Hansen’s Report, the Court agrees that it appears to be methodologically sound and rather persuasive. It seems that a reasonable jury could find the Report to be accurate. That said, the Court cannot hold as a matter of law that a reasonable jury could not conclude otherwise. It is feasible that, after cross examination, a jury could find Hansen’s conclusions are flawed for any number of reasons, such as improper reliance on these specific databases and programs or potential errors in data entry. Because there is a fact issue as to the accuracy of Hansen’s Report, the Court DENIES Plaintiff’s motion for summary judgment.