In Legg v. Voice Media Group, Inc., 2014 WL 1767097 (S.D.Fla. 2014), Judge Cohn struck a TCPA Plaintiff’s expert’s testimony regarding whether Defendant’s dialer was an ATDS under the TCPA.
In the Supplemental Snyder Declaration and the Second Supplemental Snyder Declaration, Snyder opines that the systems VMG used to send its text messages satisfy the TCPA’s definition of an automatic telephone dialing system. VMG seeks to exclude this testimony as impermissibly stating a legal conclusion, and as lacking an adequate foundation. The Court agrees with VMG, and will exclude this portion of Snyder’s proposed testimony. ¶ Legg has filed suit under a TCPA provision which allows an individual to bring claims for certain unwanted calls made with an automatic telephone dialing system. See 47 U.S.C. § 227(b)(1) (A). An “automatic telephone dialing system” within the meaning of the TCPA is “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number gen-erator; and (B) to dial such numbers.” Id. § 227(a) (1). ¶ Snyder intends to testify that the systems VMG used to send its text messages meet the legal definition of an automatic telephone dialing system. E.g., DE 66–2 ¶ 31. Implicit within this testimony is Snyder’s conclusion as to the legal definition of an automatic telephone dialing system. An expert witness, however, may not offer legal conclusions; only the Court may instruct the jury as to the state of the law. Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir.1990). Where an expert offers an opinion as to the legal implications of the facts, that testimony also encroaches on the responsibilities of the judge and jury, and is inadmissible. Id.; see also Dubiel v. Columbia Hosp. (Palm Beaches) L.P., No. 04–80283, 2005 U.S. Dist. LEXIS 45874 at *11–14 (S.D.Fla. Jan. 10, 2005) (striking expert’s testimony that hospital operated in full compliance with Fair Labor Standards Act). Because Snyder may not offer a conclusion as to the legal definition of an automatic telephone dialing system, or the legal implications of VMG’s systems in relation to that definition, the Court will exclude his proposed testimony that VMG used an “automatic telephone dialing system” within the meaning of the TCPA. See Dubiel, 2005 U.S. Dist. LEXIS 45874 at *12–14; Dow Corning Corp. v. Xiao, No. 11–10008, 2013 U.S. Dist. LEXIS 35552 at *50 (E.D.Mich. Mar. 13, 2013) (excluding testimony of expert that materials did not satisfy legal definition of “trade secret” as impermissible legal conclusion). ¶ Snyder’s testimony that VMG used an automatic telephone dialing system also lacks an adequate factual foundation. Snyder’s opinion is based primarily upon his review of a client handbook produced by Phaz2, the vendor VMG relied upon to send its text messages. See DE 66–2 ¶ 23. This client handbook purports to set forth instructions and descriptions relating to Phaz2’s systems. See id . Ex. B. VMG represents, however, and Legg does not dispute, that Snyder has not had the opportunity to inspect VMG’s or Phaz2’s equipment, or to review any testimony regarding VMG’s relationship with Phaz2 or the pro-cess by which VMG actually sent its text messages. DE 66 at 10–11. Legg responds that Snyder based his opinion on “over 1000 pages of discovery … in-clud[ing] hundreds of pages of emails discussing sending text messages and the legal issues contingent thereto …, screen shots and detailed instructions for how [VMG] operated Phaz2, Inc.’s systems …, and even the contract detailing the relationship between [VMG] and Phaz2, Inc.” DE 76 at 6. Snyder’s decla-rations and deposition testimony contradict Legg’s assertions, however, and reflect that Snyder did not consider these additional materials in arriving at his opinion. See, e.g., DE 66–2 ¶¶ 3, 23–26; DE 66–5 at 16–30. ¶ Phaz2’s client handbook, standing alone, provides an insufficient basis for Snyder’s opinion regarding the capabilities of VMG’s systems. Snyder does not know whether VMG actually used the systems discussed in the handbook, or in the manner provided in the handbook. Indeed, Snyder cannot even say whether Phaz2’s own equipment conforms to the specifications discussed in its handbook. Snyder’s conclusion upon review of the handbook that “VMG employed and operated an Automatic Telephone Dialing System (ATDS) as defined within the TCPA” (DE 66–2 ¶ 31) is therefore too attenuated from the underlying materials to be of use, with the gap filled only by Snyder’s speculation. In contrast, Rule 702 requires that expert testimony bear an adequate relationship to its sup-porting data. Hendrix v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir.2010). The Court therefore will exclude this aspect of Snyder’s testimony for the additional reason that it bears an insufficient relationship to the underlying data. See McDowell v. Brown, 392 F.3d 1283, 1300 (11th Cir.2004) (upholding exclusion of expert’s opinions too remote from underlying data). ¶ In the Second Supplemental Snyder Declaration, Snyder attempts to buttress his earlier opinions that VMG used an automatic telephone dialing system by stating that it would be “infeasible and implausible” to send messages at the rate accomplished by VMG without automated means. DE 66–3 ¶¶ 28–32. Snyder arrives at this conclusion through his own experiments of sending text messages to VMG and receiving rapid responses, and a review of VMG’s text-message records, which apparently illustrate that VMG sent 195 text messages to 195 cellular telephones over the course of 16 seconds. Id. Snyder’s conclusion that VMG’s rapid transmission of text messages suggests the use of automated systems, however, does not implicate matters outside the understanding of an average lay person. A reasonable juror would have little trouble drawing the appropriate inferences from VMG’s rapid and voluminous transmission of text messages. Snyder’s opinion therefore offers no more than what Legg’s attorneys could argue to the jury, and does not assist the factfinder in understanding the evidence through the application of technical exper-tise. Snyder’s observations drawn from VMG’s rate of sending text messages accordingly are not an appro-priate subject of expert testimony. See Frazier, 387 F.3d at 1262–63. ¶