Hunt v. 21st Mortgage Corporation

Filing 67

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 )

FILED
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
SOUTHERN DIVISION
CHARLES HUNT,
Plaintiff,
v.
21ST MORTGAGE CORPORATION,
Defendant.

}
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CIVIL ACTION NO.
2:12-CV-2697-WMA

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.

In

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
1

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.
Background
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. The relevant facts regarding Biggerstaff’s qualifications
and his proposed testimony are these:
Biggerstaff

received

engineering in 1987.

a

bachelor’s

degree

Biggerstaff Dep. at 26-27.

in

chemical

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.

The job

included responsibility for an automated telephone system that the

2

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.

Biggerstaff

estimates that 10% of his consulting work revolved around telephone
systems.

Id. at 45.

In 1992, Biggerstaff began a regular job at Westvaco, a paper
and chemicals company.
duties

included

computers,

Id. at 60.

“[p]retty

computer

much

telephone

Like his previous jobs, his

everything

having

integration

integration with process control.”

Id. at 62.

and

to
the

do

with

computer

The work included

“both [managing] hardware . . . and writing custom software.”

Id.

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.
independent

Id. at 84.

consulting.

Since then, he has returned to

Though
3

he

still

sometimes

provides

standard

IT

consulting,

he

is

now

most

often

retained

“forensic expert, data recovery expert or expert witness.”
87.

as

a

Id. at

He has been “retained as a computer expert in over 200 court

cases.”

Biggerstaff Report ¶ 7.

Based on these qualifications, plaintiff retained Biggerstaff
to

examine

defendant’s

telephone

system

for

the

purpose

of

determining whether the system fell under the “automatic telephone
dialing

system”

definition

provided

by

the

TCPA.

Ideally,

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.
-

A

“demonstration”

in

which

Pl.’s Br. at 2.

defendant’s

“litigation

coordinator” held up a numeric keypad and pantomimed dialing
numbers on it.

Id. at 3.

4

- A small group of veteran debt collection employees at work
using the new system.
Despite

the

Id. at 3-4.

meagerness

of

this

examination,

Biggerstaff

scraped together an expert report summarizing his findings.

He

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
had

practiced

it,

see

Biggerstaff

Report

¶¶

17-21;

and

(2)

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.
At

issue

is

whether

these

conclusions

meet

the

expert

testimony standard of Federal Rule of Evidence 702.
Analysis
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
data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the principles
5

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.”

United

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
scientific discourse.

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
not
provide
a
sufficient
foundation
for
expert
testimony.”
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
1331,

1338

(11th

Cir.

2009)

(“The

beneficiaries

argue

that

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
6

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.

The

judge must fulfill this “gatekeeping role,” Daubert, 509 U.S. at
597, “‘to ensure that speculative, unreliable expert testimony does
not

reach

accompanies

the
the

jury’

under

appellation

the

mantle

‘expert

of

reliability

testimony.’”

Rink

that
v.

Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (quoting
McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir.
2002)).

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

1

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).
7

data.

See Fed. R. Evid. 702.

“The burden of establishing

qualification, reliability, and helpfulness rests on the proponent
of the expert opinion . . . .”
The

Daubert

testability,

peer

court

Frazier, 387 F.3d at 1260.

suggested

review,

and

a

few

factors,

acceptance

in

including

the

scientific

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
for

all

time

Daubert,’”

the

because

applicability
“[t]oo

much

of

the

depends

factors
upon

mentioned

the

in

particular

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
at

1262

(quoting

Kumho

Tire,

526

U.S.

at

152),

and

“broad

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

2

Instead,

To the extent Biggerstaff’s general, abstract “expert”
credentials are important, the court notes that Biggerstaff has
8

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.
at

trial.

First,

Biggerstaff plans to offer two conclusions

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 computer mouse, while all the
manual

dialing

involved

Biggerstaff

pecking

out

the

has

witnessed

numbers

on

a

at

other

10-digit

companies

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.”
intends

to

infrastructure
sophisticated.

testify
are

that

21st

generally

Id. ¶ 22.

Mortgage’s
well-designed,

He

facilities

and

modern,

and

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).
9

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.
23-26.

Id. ¶¶

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.3
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), because he went to the 21st Mortgage facility

3

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.
10

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
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.
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
road.

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

to

formulate

the

information

upon

which

to

a

complete

and

persuasive expert opinion can’t form a basis for criticizing a less
comprehensive opinion.4
4

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,
11

Defendant
underestimating

errs

simultaneously

Biggerstaff’s

by

overestimating

testimony.

It

and

by

overestimates

by

imagining that there is some advanced, quantitative scientific
analysis at work.
Biggerstaff

is

It underestimates by assuming that just because

ill-equipped

to

offer

that

kind

of

advanced,

e.g.:
- "[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.
12

quantitative scientific analysis, he is not an “expert.”

As

explained above, an “expert” under the Federal Rules of Evidence
can be qualified based on any kind of special experience.

Working

for many years as an IT consultant provides special experience to
comment on the differences between various IT setups.

Perhaps

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
is inadmissible.

Indeed, the fact that the conclusion is simple

helps the court understand it to the degree necessary to ensure its
Daubert “reliability.”
This

does

not

mean

that

Biggerstaff’s

susceptible to attack at trial.

testimony

is

not

Could defendant be right, for

example, that Biggerstaff has been permanently prejudiced against
TCPA defendants by a bad experience his own grandfather had with
telemarketers?

See Def.’s Br. at 9-11.

Might it be significant

that Biggerstaff worked as an IT professional mostly in the 1990s,

13

and only once worked with the CS1000 chassis?
8.

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.

“[The

Daubert] gatekeeping role . . . ‘is not intended to supplant the
adversary

system

or

the

role

of

the

jury:

‘vigorous

cross-examination, presentation of contrary evidence, and careful
instruction

on

the

burden

of

proof

are

the

traditional

and

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).

If

defendant wishes to challenge Biggerstaff’s testimony further, it
must use one of these methods to do so.
Conclusion
For

all

Biggerstaff

is

the

foregoing

qualified

as

reasons,
an

expert

the

court

under

finds

Federal

that

Rule

of

Evidence 702 and may offer opinion testimony at the upcoming trial
in

this

case.

Defendant’s

motion

to

exclude

Biggerstaff’s

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.
14

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
practicable.
DONE this 25th day of April, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

15