Plaintiff filed suit against defendant for a claim under the Telephone Consumer Protection Act. Plaintiff hired a Telecommunications Expert Witness to provide testimony. Defendant filed a motion to exclude, which was granted by the court.
Facts: This case (Keyes v. Ocwen Loan Servicing, LLC et al – United States District Court – August 16th, 2018) involves a claim under the Telephone Consumer Protection Act (TCPA). The plaintiff (Keyes) alleges that the defendant (Ocwen) called her over 2,500 times in a three and a half-year period. She states that Ocwen was attempting to collect an overdue debt and that Ocwen continued to call her over her objections. Ocwen used a device called the Aspect United IP to place the calls. Keyes hired Telecommunications Expert Witness Jeffrey Hansen to provide testimony on her behalf. Ocwen has filed a motion to exclude this expert witness testimony under Daubert.
Discussion: Ocwen argues that Hansen’s report lacks the proper factual basis required by the law. In addition, it argues that Hansen’s statements of law and methodology are not reliable.
First, Ocwen argues that Hansen’s expert report lacks a proper factual basis because he merely reviewed manuals and ran tests on his computer and he did not inspect the actual Aspect System that was used to the place the calls. Ocwen cites to two cases where courts excluded testimony because the experts did not test the software in question. The current court opines that there is no indication that Hansen has ever tested or inspected an Aspect System. Keyes does argue that Hansen has analyzed the Aspect UIP dialer in other matters over the past 10 years. The court opines that Hansen did not inspect or test Ocwen’s Aspect System in those matters.
The court states that Hansen’s report does not have an adequate factual basis because he has not tested the relevant equipment. In drafting his report, Hansen merely reviewed documents and manuals regarding predictive dialers and the Aspect System generally. Also, the court opines that Hansen did not test his theory on how Ocwen places calls using the Aspect System. The court last states that there exists no evidence in the record that Hansen tested or inspected the actual Aspect System that was used to make the calls or that he reviewed any patents which detail how Ocwen uses the Aspect System to make calls.
Ocwen’s other argument for exclusion is that Hansen’s statements of law and methodology are not proper. Ocwen claims that Hansen’s conclusion is wrong and that he used different and inconsistent terminology when defining or describing an automatic dialing system. The court opines that Hansen’s statements of law are improper not because they inarticulately state the law, but because expert witnesses are not allowed to make legal conclusions.
Conclusion: The motion to exclude the expert witness testimony of Jeffrey Hansen is granted.