Hunt v. 21st Mortgage Corporation
MEMORANDUM OPINION AND ORDER For the reasons noted within, the court finds that Biggerstaff is qualified as an expert under Federal Rule of Evidence 702 and may offer opinion testimony at the upcoming trial in this case. Defendants motion to exclude Biggerstaffs testimony (Doc. 65) is DENIED. If defendant wishes to retain a rebuttal witness, it shall do so and shall make all disclosures related to that witness no later than May 9, 2014. If plaintiff wishes to depose defendants expert, he shall do so no later than May 23, 2014. Signed by Judge William M Acker, Jr on 4/25/14. (SAC )
2014 Apr-25 PM 03:12
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
21ST MORTGAGE CORPORATION,
CIVIL ACTION NO.
MEMORANDUM OPINION AND ORDER
Before the court is the motion of defendant, 21st Mortgage
Corporation, to exclude the expert testimony of Robert Biggerstaff
as evidence in the upcoming trial of the above-styled case.
this court’s opinion and order of February 4, 2014 (Docs. 57-58),
the court determined that the Biggerstaff testimony would not be
considered for purposes of summary judgment because plaintiff had
failed to make the expert disclosures required by Federal Rule of
Civil Procedure 26.
In its order of March 12, 2014 (Doc. 63),
however, the court ruled that plaintiff could cure these procedural
deficiencies for purposes of the trial phase.
In so ruling, the
court was mindful that allowing the expert to testify would trigger
a potentially costly re-opening of discovery to provide defendant
an opportunity to prepare a response to Biggerstaff, including an
opportunity to retain a rebuttal expert.
To assure that this
expense would be incurred only if absolutely necessary, the court
ordered immediate briefing on the question of whether Biggerstaff’s
testimony meets the requirements of the Federal Rules of Evidence.
With those supplemental briefs (Docs. 65-66) now in hand, the court
concludes that Biggerstaff’s testimony is admissible under the
Federal Rules of Evidence.
At issue in this case is whether defendant is liable to
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
It is this question that Biggerstaff’s testimony attempts to
address. The relevant facts regarding Biggerstaff’s qualifications
and his proposed testimony are these:
engineering in 1987.
Biggerstaff Dep. at 26-27.
His first job was
in the IT department of a company called North America Garment
Finishers, Inc., where he was “[r]esponsible for all computer
systems, network design, operations, hardware installation and
maintenenance and applications development.”
Id. at 28.
included responsibility for an automated telephone system that the
company used to alert its employees of order updates and the like.
Id. at 32.
After leaving the company, Biggerstaff spent several years as
an independent IT consultant.
Id. at 37.
He provided consulting
for at least eight companies, including other garment companies,
engineering firms, law firms, video rental stores, and a travel
agency. Id. at 43-44. His worked included “[p]retty much anything
having to do with computers, networks, communications, [and] CTI,
which is computer telephony integration.”
Id. at 39.
estimates that 10% of his consulting work revolved around telephone
Id. at 45.
In 1992, Biggerstaff began a regular job at Westvaco, a paper
and chemicals company.
Id. at 60.
Like his previous jobs, his
integration with process control.”
Id. at 62.
The work included
“both [managing] hardware . . . and writing custom software.”
At one point during his deposition, Biggerstaff estimated that his
work at Westvaco concerned the company’s telephone system “about 15
percent” of the time, id. at 45, while at another he estimated “an
average of 10 percent or less.”
Biggerstaff worked at Westvaco for more than 10 years before
leaving in 2003.
Id. at 84.
Since then, he has returned to
“forensic expert, data recovery expert or expert witness.”
He has been “retained as a computer expert in over 200 court
Biggerstaff Report ¶ 7.
Based on these qualifications, plaintiff retained Biggerstaff
determining whether the system fell under the “automatic telephone
Biggerstaff would have examined the actual system in live action,
but defendant had dismantled the entire system and replaced it with
a new one directly after being sued.
Plaintiff has understandably
protested throughout this litigation that defendant should face
immediate sanctions for spoliation, but the court has thus far
avoided such an extreme remedy.
The court hoped that defendant’s
error could be remedied by digging out from the garbage its old
system and making its best effort to recreate its old calling
method for plaintiff and his expert’s examination. Disappointingly
to plaintiff and to the court, this so-called “best effort” was,
apparently, to allow Biggerstaff to see, in toto:
- A small, unused office where defendant’s old equipment was
stacked, offline and in fact not even plugged in.
Pl.’s Br. at 2.
coordinator” held up a numeric keypad and pantomimed dialing
numbers on it.
Id. at 3.
- A small group of veteran debt collection employees at work
using the new system.
Id. at 3-4.
scraped together an expert report summarizing his findings.
concludes that it is unlikely that defendant made debt collection
calls manually for two reasons: (1) the veteran employees lacked
the skill at manual dialing that he would expect from employees who
defendant’s facilities to his eye contained an IT infrastructure
that allowed for much greater efficiency if automatic dialing were
used, see id. ¶¶ 22-26.
testimony standard of Federal Rule of Evidence 702.
Federal Rule of Evidence 702, as modified to incorporate the
holdings of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113
(1993) and its progeny, see advisory committee’s note on 2000
amendments, provides as follows:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the principles
and methods to the facts of the case.
Fed. R. Evid. 702.
Rule 702 has a “liberal thrust” and a “general approach of
relaxing the traditional barriers to opinion testimony.”
States v. Brown, 415 F.3d 1257, 1268 (11th Cir. 2005) (quoting
Daubert, 509 U.S. at 588). The “specialized knowledge” required by
the Rule need not take the form of any traditionally learned
As numerous courts, along with the text of
the rule itself, recognize, expert opinion based on practical
experience is equally admissible as that based on academic science:
While scientific training or education may provide
possible means to qualify, experience in a field may
offer another path to expert status. In fact, the plain
language of Rule 702 makes this clear: expert status may
be based on “knowledge, skill, experience, training, or
education.” The Committee Note to the 2000 Amendments of
Rule 702 also explains that “[n]othing in this amendment
is intended to suggest that experience alone . . . may
United States v. Frazier, 387 F.3d 1244, 1260-61 (11th Cir. 2004)
(emphasis and omission added by Frazier) (citing Fed. R. Evid. 702;
Fed. R. Evid. 702 advisory committee’s note (2000 amends.)); see
also Am. Gen. Life Ins. Co. v. Schoenthal Family, LLC, 555 F.3d
Skipper's testimony is unreliable because ‘[e]xperience alone . .
. can never form the basis for expert testimony,’ but this argument
fails.”) (alteration and omission in original).
Indeed, courts in
this circuit have accepted experts ranging as highfalutin as an
earthen embankments expert with a Ph.D. from MIT and a long career
studying earthen embankments, see Tampa Bay Water v. HDR Eng'g,
Inc., 731 F.3d 1171, 1185 (11th Cir. 2013), and as low-falutin as
a marijuana expert with with no education or training other than a
claim that he “had smoked marijuana over a thousand times,” United
States v. Johnson, 575 F.2d 1347, 1360 (5th Cir. 1978)1.
Whether an expert is more like a master engineer or a master
drug addict, “what remains constant is the requirement that the
trial judge evaluate the reliability of the testimony before
allowing its admission at trial.”
Frazier, 387 F.3d at 1262.
judge must fulfill this “gatekeeping role,” Daubert, 509 U.S. at
597, “‘to ensure that speculative, unreliable expert testimony does
Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (quoting
McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir.
The judge properly keeps the gate if he makes sure that
each of the four elements of Rule 702 are met: the expert must have
special knowledge that would be helpful to the trier of fact; he
must base his opinion on facts and data; he must employ a reliable
method; and this method must be reliably applied to the facts and
Johnson is binding on this court as an opinion of the “old
Fifth” Circuit. Bonner v. City of Prichard, Ala., 661 F.2d 1206,
1209 (11th Cir. 1981).
See Fed. R. Evid. 702.
“The burden of establishing
qualification, reliability, and helpfulness rests on the proponent
of the expert opinion . . . .”
Frazier, 387 F.3d at 1260.
community, that could help trial courts weigh reliability, see
Daubert, 509 U.S. at 592, but in light of the vast variety of types
of experts, “[t]his list . . . is not exhaustive.”
Hendrix ex rel.
G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th Cir. 2010).
“The judge can ‘neither rule out, nor rule in, for all cases and
circumstances of the particular case at issue.” Brown, 415 F.3d at
1268 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150
(1999)). Indeed, the Eleventh Circuit has repeatedly stressed that
a district judge “must have considerable leeway,” Frazier, 387 F.3d
latitude,” Brown, 415 F.3d at 1268 (quoting Kumho Tire, 526 U.S. at
153), to tailor its Daubert analysis to the specific context of the
expert testimony asserted.
With these standards in mind, the court cannot rule in the
abstract on whether Biggerstaff is an “expert” or not.2
To the extent Biggerstaff’s general, abstract “expert”
credentials are important, the court notes that Biggerstaff has
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 conclusions
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.
short, the agents at 21st Mortgage dialed numbers using an extremely
slow click-and-drag method with a computer mouse, while all the
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.”
Id. ¶ 22.
Were Biggerstaff an IT consultant for
already been allowed to testify as an expert by numerous other
courts. See Jackson Five Star Catering, Inc. v. Beason,
10-10010, 2013 WL 5966340, at *1 (E.D. Mich. Nov. 8, 2013)
(citing Biggerstaff’s expert report in opinion without Daubert
analysis); Savanna Grp., Inc. v. Trynex, Inc., 10-CV-7995, 2013
WL 66181, at *4 n3. (N.D. Ill. Jan. 4, 2013) (“Defendants do not
challenege Mr. Biggerstaff’s report under Daubert or Federal Rule
of Evidence 702”); CE Design Ltd. v. Cy's Crabhouse N., Inc., 259
F.R.D. 135, 139 (N.D. Ill. 2009) (finding that Biggerstaff
testimony met Rule 702 standard); Holtzman v. Turza, 08 C 2014,
2009 WL 3334909, at *3 (N.D. Ill. Oct. 14, 2009) (same).
criticize his client’s enormously inefficient and wasteful use of
all that hardware simply for old-fashioned hand-dialing.
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
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
His testimony is “based on sufficient facts or
data,” Rule 702(b), because he went to the 21st Mortgage facility
The parties devote ample space to an alleged third piece of
opinion testimony: that the 21st Mortgage hardware, which
includes a “CS1000 chassis” and “Dell server,” is capable of
generating random numbers. See, e.g., Def.’s Br. at 3 (labeling
this the “capacity opinion”). But this is not so much part of
Biggerstaff’s opinion testimony as it is a fact upon which the
opinion is based. The fact that a computer can generate random
numbers is practically worthy of judicial notice, and regardless
has long since been conceded by defendant. See, e.g., Def.’s Br.
Regarding “Capacity” (Doc. 30), at 7 (admitting it is “aware of
software that can be used with the [previous] phone system to
allow it to do ‘automatic dialing’”). Indeed, it was the fact
that virtually any computer can generate random numbers that led
this court to narrow the TCPA question here to whether defendant
had installed the software needed to enable this function. See
Mem. Op. of September 17, 2014 (Doc. 31), at 9.
and observed 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
procedure, and then pointed out practical differences between it
and the normal practices of the many other call centers he has
For the same reason, Biggerstaff “reliably applied,” Rule
702(d), those principles to this case.
There are two undisputed facts that further militate to the
opening of the Daubert gate for Biggerstaff.
The first is that
this is the first case the court can find in which an expert has
been needed and offered on such a unique issue.
In other words,
the first proposed expert on a subject should be granted more
leeway than an expert on the same subject twenty cases down the
The second fact important to this inquiry is that it was the
protesting defendant that deprived Biggerstaff of the full toolkit
upon which to exercise his expertise.
To limit an expert’s access
persuasive expert opinion can’t form a basis for criticizing a less
The court grows increasingly frustrated with defendant's
arguments that Biggerstaff had insufficient data because he did
not see the old system in its live state, along the lines of,
imagining that there is some advanced, quantitative scientific
analysis at work.
It underestimates by assuming that just because
- "[All Biggerstaff saw was] what he believed to be a
desktop computer in the room where the CS1000 is located. The
outer shell of that desktop computer contained labeling that
indicated it was a Dell Optiplex Computer which he admits is a
desktop computer." Def.'s Br. at 13.
- "Mr. Biggerstaff has no idea whether the computer [he was
shown by 21st Mortgage] was hooked to the CS1000 when it was in
operation. He has no idea whether the computer even worked at
any time. . . . [He] has no idea whether the computer had ever
been substantially changed in any way. He has no idea about what
the computer was ever used for." Id. at 14-15.
- "Mr. Biggerstaff has reviewed no data and did not analyze
the telephone system in place at 21st Mtg." Id. at 20.
- "The employees that Mr. Biggerstaff observed were making
outbound calls with the new telephone system in place at 21st
Mtg.[,] the Shortel system[,] which has absolutely no relevance
to this matter." Id. at 22.
In fact, the Shortel system does have relevance to this
matter, namely that defendant installed the Shortel system in
place of the old system immediately after plaintiff's wife
brought a TCPA lawsuit, thus flagrantly destroying evidence
crucial to this case and practically begging the court for
spoliation sanctions. The court generously attributed this
destruction to mere stupidity, rather than to willfulness, and
therefore permitted defendant to cover its error simply by
providing plaintiff access to the dismantled equipment in as
close to its previous condition as possible. See Bashir v.
Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) ("In this circuit, an
adverse inference is drawn from a party's failure to preserve
evidence only when the absence of that evidence is predicated on
bad faith. 'Mere negligence' in losing or destroying the records
is not enough . . . .") (emphasis added) (citation omitted).
The court regrets its generosity more and more with each new
round of briefing in which defendant gleefully uses its own
spoliation efforts as an argument for why it must win.
quantitative scientific analysis, he is not an “expert.”
explained above, an “expert” under the Federal Rules of Evidence
can be qualified based on any kind of special experience.
for many years as an IT consultant provides special experience to
comment on the differences between various IT setups.
defendant has been distracted by the existence of Biggerstaff’s
impressive, but irrelevant, chemical engineering degree, or by
phraseology like “ergonomic incongruity.”
The court agrees that
there is a “morphological incongruity” between the complexity
implied by the phrase “ergonomic incongruity” and the simplicity of
what it actually means, that is, that 21st Mortgage’s alleged
practices involved painfully slow dialing using a computer mouse,
while any decently skilled telemarketer would dial much more
quickly using a numeric keypad.
But the court does not agree that
the simplicity of this ultimate conclusion means that the testimony
Indeed, the fact that the conclusion is simple
helps the court understand it to the degree necessary to ensure its
susceptible to attack at trial.
Could defendant be right, for
example, that Biggerstaff has been permanently prejudiced against
TCPA defendants by a bad experience his own grandfather had with
See Def.’s Br. at 9-11.
Might it be significant
that Biggerstaff worked as an IT professional mostly in the 1990s,
and only once worked with the CS1000 chassis?
See Def.’s Br. at 5-
Might that explain the difference between what Biggerstaff saw
at past companies and what he saw at 21st Mortgage?
Perhaps so, but
credibility determinations and the choice of how much weight to
give a witness’s testimony are reserved to the jury.
Daubert] gatekeeping role . . . ‘is not intended to supplant the
cross-examination, presentation of contrary evidence, and careful
appropriate means of attacking shaky but admissible evidence.’’”
United States v. Alabama Power Co., 730 F.3d 1278, 1282 (11th Cir.
2013) (quoting Allison v. McGhan Med. Corp., 184 F.3d 1300, 1311–12
(11th Cir. 1999)) (quoting in turn Daubert, 509 U.S. at 596).
defendant wishes to challenge Biggerstaff’s testimony further, it
must use one of these methods to do so.
Evidence 702 and may offer opinion testimony at the upcoming trial
testimony (Doc. 65) is DENIED.
If defendant wishes to retain a rebuttal witness, it shall do
so and shall make all disclosures related to that witness no later
than May 9, 2014.
If plaintiff wishes to depose defendant’s expert, he shall do
so no later than May 23, 2014.
This case shall be set for trial as soon after May 23 as is
DONE this 25th day of April, 2014.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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