Local Access, LLC v. Peerless Network, Inc.

Filing 1215

ORDER denying as moot 1029 Request for Oral Argument Regarding Objection; granting in part and denying in part 1052, 1080 Motion to Exclude Expert David Gabel; denying as moot 1053, 1073 Motion to Exclude Expert James M. Smith; granting in part and denying in part 1055, 1074 Motion to Exclude Expert David Malfara; granting in part and denying in part 1058 Motion to Exclude Expert Michael Starkey; denying 1059, 1082 Motion to Exclude Expert James Webber. Signed by Judge Wendy W. Berger on 3/4/2024. (MDJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LOCAL ACCESS, LLC,
Plaintiff,
v.

Case No.: 6:17-cv-236-WWB-EJK

PEERLESS NETWORK, INC.,
Defendant.

/
ORDER

THIS CAUSE is before the Court on Defendant’s Motion to Exclude Expert David
Gabel (Doc. Nos. 1052, 1080); Defendant’s Motion to Exclude Expert James Smith (Doc.
Nos.1053, 1073); Defendant’s Motion to Exclude Expert David Malfara (Doc. Nos. 1055,
1074); Plaintiff’s Motion to Exclude Expert Michael Starkey (Doc. 1058); and Plaintiff’s
Motion to Exclude Expert James Webber (Doc. Nos. 1059, 1082). 1
I.

BACKGROUND
This dispute arises out of a 2012 agreement wherein Defendant, Peerless

Network, Inc. (“Peerless”) agreed to provide Plaintiff, Local Access, LLC (“Local
Access”) with Homing Tandem Service. (Doc. 135-1 at 2–12). The agreement, known
as the Master Service Agreement (“Contract”), obligated Local Access to populate the
Local Exchange Routing Guide (“LERG”) with routing instructions designating Peerless
as the default tandem provider for all traffic directed to Local Access within the Peerless

With the Court’s permission, the parties have submitted a number of filings under
seal. However, recognizing that proceedings in the United States District Court are public
and court filings are matters of public record, this Order has been filed publicly.
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footprint. (Id.; Doc. 1075-1 at 134:6–23; Doc. 1075-4 at 58:14–19; Doc. 1075-16 at
17:12–17).
There are many points of contention between the parties, but as relevant here, the
dispute begins with § 3.3 of the Contract, which established that Local Access would be
entitled to reroute traffic designated for Peerless in the event it received a competitive
offer that Peerless failed to match. (Doc. 135-1 at 4). On July 31, 2015, Inteliquent, Inc.
(“Inteliquent”), a non-party telecommunications company, sent Local Access a
competitive offer. (Doc. 1075-17 at 345). This competitive offer included a revenue
sharing agreement wherein Inteliquent agreed to share seventy-five percent of all
“Collected Tandem Access Revenue” with Local Access. (Id.). Peerless matched the
competitive offer, which became the First Amendment to the Master Service Agreement.
(“First Amendment,” Doc. 135-1 at 14–15). Peerless has never paid Local Access any
percentage of the Collected Tandem Access Revenue it obtained from Local Access’s
traffic. (Doc. 1075-4 at 242:6–243:19). In the summary judgment Order (Doc. 1201), the
Court ruled that Peerless was obligated to pay seventy-five percent of its Collected
Tandem Access Revenue to Local Access but found the First Amendment ambiguous as
to the scope of the traffic to which the revenue sharing provision applies. (Id. at 14–19).
Shortly after the execution of the First Amendment, Inteliquent presented Local
Access with a second competitive offer that Peerless declined to match. (Doc. 1075-6
489–492). Local Access then shifted the majority of its traffic to Inteliquent, but some
traffic remained with Peerless. (Doc. 1075-3 at 269–270; Doc. 1075-17 at 365–366).
Over two years later, Peerless unilaterally cancelled the Contract with Local Access,
claiming that Local Access violated its right of complete exclusivity by routing traffic to

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Inteliquent prior to its decision not to match the second competitive offer. (Doc. 1137-5
at 4). In the summary judgment Order, the Court found that the extent of Peerless’s
exclusivity over Local Access’s traffic within the Peerless footprint was ambiguous as well.
(Doc. 1201 at 12–14).
II.

LEGAL STANDARD
Although opinion testimony is generally inadmissible, Federal Rule of Evidence

702 permits “[a] witness who is qualified as an expert by knowledge, skill, experience,
training, or education” to provide opinion testimony in limited circumstances. Expert
opinion testimony is admissible if: (1) “the expert’s . . . specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue”; (2) “the testimony
is based on sufficient facts or data”; (3) “the testimony is the product of reliable principles
and methods”; and (4) “the expert has reliably applied the principles and methods to the
facts of the case.” Id.
“[T]he Federal Rules of Evidence ‘assign to the trial judge the task of ensuring that
an expert’s testimony both rests on a reliable foundation and is relevant to the task at
hand.’” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (quoting Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)).

Pursuant to Daubert, the

determination of admissibility is “uniquely entrusted to the district court,” which is given
“considerable leeway in the execution of its duty.” Rink v. Cheminova, Inc., 400 F.3d
1286, 1291 (11th Cir. 2005) (quotation omitted). However, “[t]he burden of laying the
proper foundation for the admission of the expert testimony is on the party offering the
expert, and admissibility must be shown by a preponderance of the evidence.” Allison v.
McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).

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The Eleventh Circuit has distilled the test for determining the admissibility of expert
testimony under Rule 702 and Daubert into three basic inquiries—(1) is the expert
qualified; (2) is the expert’s methodology reliable; and (3) will the testimony assist the trier
of fact. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998).
III.

DISCUSSION
The parties have retained experts who have opined as to: (1) the scope of the

seventy-five percent revenue sharing provision; (2) the extent of exclusivity provided for
by the Contract; (3) the composition of the traffic that Peerless sent to Local Access; and
(4) damages. The parties have moved to exclude expert testimony on each of these
issues. In addition, the parties seek to exclude expert testimony relating to whether the
Contract allows for outbound traffic. Because the Court determined as a matter of law
that Local Access cannot recover damages for its lost profits or business opportunities
flowing from Peerless’s failure to route its outbound traffic, this issue has become moot.
(Doc. 1201 at 7–11); see also Daubert, 509 U.S. at 591 (“Expert testimony which does
not relate to any issue in the case is not relevant and, ergo, non-helpful.” (quotation
omitted)). The parties’ remaining arguments will be addressed in turn below.
A.

Gabel

There is no dispute that Gabel is a qualified expert in the fields of
telecommunications and economics, and the Court finds that he is qualified based on the
evidence before the Court. Rather, Peerless moves to strike his opinions on the basis
that they are unreliable. Specifically, Peerless argues that: (1) Gabel’s estimate of the
traffic mix delivered to Local Access is unreliable; and (2) Gabel’s chosen rate to calculate
Local Access’s alleged damages is unreliable.

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1.

Traffic Mix Estimate

Peerless challenges Gabel’s opinion estimating the minutes of Long-Distance
Termination traffic to which the revenue sharing provision could apply. In his May 1, 2023
report, Gabel adopted a methodology developed by Peerless’s expert, James D. Webber.
(Doc. 1080-11, ¶ 21; see also Doc. 1080-12). In Webber’s November 3, 2022 report,
Webber analyzed Local Access’s Call Detail Records (“CDRs”) to calculate the
approximate total volume of traffic that would have traversed Peerless’s network for calls
destined to Local Access.

(Doc. 1080-12, ¶¶ 40–41).

From there, Webber used

“operational and financial records provided by Peerless” to determine the ratio of LongDistance Termination to Local Transit traffic delivered to Local Access.

(Id. ¶ 45).

Webber determined that approximately three percent of all traffic delivered over the
Peerless network to Local Access related to calls for which switched access charges
applied. (Id.). The remaining traffic delivered to Local Access was split between LongDistance Termination and Local Transit at a three-to-one ratio. (Id.). The Court notes
that Webber’s methodology appears to be sufficient under Daubert, and that Gabel was
entitled to rely on it in forming his own opinion. See, e.g., Christiansen v. Wright Med.
Tech. Inc. (In re Wright Med. Tech. Inc., Conserve Hip Implant Prod. Liab. Litig.), 127 F.
Supp. 3d 1306, 1320 (N.D. Ga. 2015) (finding that the “facts and data upon which an
expert may rely in reaching an expert opinion includes the opinions and findings of other
experts, if experts in their respective field would reasonably rely on other expert’s opinions
and findings”).
Using Webber’s calculations as to the traffic mix delivered to Local Access as a
baseline, Gabel concluded that approximately 72.75% of the traffic delivered from

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Peerless to Local Access was Long-Distance Termination traffic. (Doc. 1080-11, ¶¶ 21–
22). Moreover, Gabel accepted Peerless’s Minutes of Use calculations—which Local
Access stipulated to—that indicate Peerless delivered approximately 3.6 billion minutes
of traffic to Local Access between July 2015 and April 2018. (Id. ¶ 20). Taken together,
Gabel concluded that Peerless delivered approximately 2.6 billion Long-Distance
Termination minutes to Local Access. (Id. ¶ 26).
Peerless objects that Gabel misappropriated Webber’s findings because Webber
calculated only the minutes delivered from Inteliquent to Local Access, not from Peerless
to Local Access. However, Webber’s methodology appears to be designed to determine
the composition of the traffic delivered to Local Access, not the composition of total traffic
delivered by Inteliquent to other carriers. To the extent Peerless wishes to argue that the
traffic mix Local Access received from Inteliquent would have been meaningfully different
than the traffic Local Access received from Peerless, that goes to the weight of Gabel’s
testimony, not its admissibility. See City of S. Mia. V. DeSantis, No. 19-22927, 2020 WL
7074644, at *3 (S.D. Fla. Dec. 3, 2020) (“The presumption is that expert testimony is
admissible, so that once a proponent has made the requisite threshold showing, further
disputes go to weight, not admissibility.” (quotation omitted)).
Next, Peerless objects because, at his deposition, Gabel described Webber’s
methodology as “unconventional” and admitted that it made him “uncomfortable.” (Doc.
1080-14 at 196:21–197:2). Gabel previously criticized Webber’s report on the grounds
that the total minutes used in calculating the percentages for the traffic mix is not
consistent across the three categories of traffic analyzed. (Doc. 1080-9, ¶¶ 8–9). But it
is well established that “[t]he identification of such flaws in generally reliable scientific

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evidence is precisely the role of cross-examination.” Quiet Tech. DC-8, Inc. v. HurelDubois UK Ltd., 326 F.3d 1333, 1345 (11th Cir. 2003). To the extent Gabel’s adoption of
Webber’s findings is inconsistent with his previous observation about the deficiencies in
Webber’s methodology, this too goes to the credibility of his testimony, not its
admissibility. Likewise, the extent to which Gabel did not adequately explain his rationale
for departing from the conclusions he made in his earlier February 1, 2023 report is a
subject best addressed during cross-examination. See Daubert, 509 U.S. at 596.
2.

Gabel’s Chosen Rate

When calculating damages, Gabel used $0.0066 as the baseline rate that Peerless
charged its customers for Long-Distance Termination traffic delivered to Local Access.
(Doc. 1080-11, ¶ 23). This rate was derived by taking the “average” of the rates from
“one of Peerless’s rate decks” that was produced in discovery. (Id.). Peerless produced
thousands of rate decks to Local Access, but nevertheless Gabel relied on a single one,
which he testified was given to him “by Mr. Russell,” a co-owner of Local Access. (Doc.
1128-2 at 274:19–275:5). Gabel further testified that he did not believe that $0.0066 was
an accurate rate, admitting that it was a “placeholder” until Local Access receives
additional discovery from Peerless. 2 (Doc. 1080-11, ¶ 24).
Gabel’s blind acceptance and reliance on the single rate deck provided to him by
Local Access, when thousands were available to analyze, renders his methodology
unreliable and therefore inadmissible. See PODS Enters., Inc. v. U-Haul Int’l, Inc., No.

In the February 13, 2024 Order (Doc. 1210), the Court ordered this discovery
dispute recommitted to Magistrate Judge Kidd to facilitate the production of additional
discovery on this issue. Magistrate Judge Kidd ordered Peerless to supplement its
responses on or before March 6, 2024. (Doc. 1212).
2

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8:12-cv-01479-T, 2014 WL 12628664, at *4 (M.D. Fla. June 27, 2014).

Gabel

acknowledges that the rate of $0.0066 has no basis in fact and describes it as a
“placeholder” until Local Access receives additional CDRs from Peerless. But Local
Access’s failure to provide Gabel with the available evidence on this issue will be fatal to
the admissibility of his testimony. See Barber v. United Airlines, Inc., 17 F. App’x 433,
437 (7th Cir. 2001) (rejecting expert who did not explain why he ignored certain data,
accepted only testimony and data that suited his theory, and “cherry-picked” supporting
facts).
B.
Local

Smith
Access

retained

James

M.

Smith,

an

attorney

who

practices

telecommunications law, to offer opinions regarding Local Access’s status under the
Telecommunications Act of 1996 and whether Federal Communication Commission
(“FCC”) rules obligate Peerless to terminate Local Access’s outbound traffic. Peerless
moves to exclude his findings pertaining to outbound traffic. In the December 15, 2023
Order on the parties’ motions summary judgment, the Court resolved this issue as a
matter of law. (Doc. 1201 at 7–11). Thus, Smith’s testimony is now moot, “because it is
redundant of arguments previously presented to, and resolved by, this Court.” Abrams v.
Ciba Specialty Chems. Corp., No. 08-0068, 2010 WL 1141409, at *4 (S.D. Ala. Mar. 22,
2010).

Peerless’s Motion will be denied as moot, and the Court will not consider

Peerless’s remaining objections to Smith’s testimony.
C.

Malfara

There is no dispute that Malfara is a qualified expert in the field of
telecommunications, and the Court finds that he is qualified based on the evidence before

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the Court. Peerless seeks to exclude portions of Malfara’s May 29, 2018, January 19,
2023, and May 2, 2023 reports relating to the issue of complete exclusivity on the grounds
that: (1) he offers impermissible legal conclusions; and (2) his testimony will not assist the
trier of fact.
The parties dispute whether the Contract, including the First Amendment, provides
Peerless with the right of complete exclusivity over all Local Access traffic.

After

considering the Contract as a whole, the Court previously determined that the Contract is
ambiguous on the issue of complete exclusivity. (Doc. 1201 at 12–14). Local Access
has retained Malfara to opine on the issue. (Doc. 1074-1 at 7–20). In his report, Malfara
purports to interpret section A3 of the First Amendment, which states that “consistent”
with the Contract, “Peerless will be the sole provider of Homing Tandem Services . . . ”
(Doc. 135-1 at 14). In his May 29, 2018 report, Malfara explained as follows:
In everyday language, “consistent” means consistent. That is: in agreement
with, in accordance with; congruent with; without variance to; not
contradictory to; or, the same as. In the case of the Agreement, to the extent
that, is also an implied part of that meaning, since any variance from the
conveyance or denial of exclusivity held within the Agreement would make
A3 not consistent with the Agreement
....
With that in mind, the “Current Local Access Agreement” as it is cited here,
contains no language whatsoever making Peerless “the sole provider of
Homing Tandem Services”.
....
Therefore, in a reasonable reading of A3 of the First Amendment, I find
nothing that would change the operational exclusivity requirements of the
original agreement as it pertains to Homing Tandem Service which, as
explained earlier, do not exist.
(Doc. 1074-1 at 18–19).

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Peerless challenges the admissibility of this testimony.

As an initial matter,

Peerless appears to argue that Malfara’s testimony should be inadmissible because it
believes that the provision in question is an unambiguous grant of complete exclusivity to
Peerless, making expert testimony to the contrary inherently unhelpful to the trier of fact.
But contrary to Peerless’s assertions, the Contract is ambiguous on the issue. (Doc. 1201
at 12–14). Malfara’s testimony will not be excluded on this basis.
Peerless also seeks to exclude Malfara’s testimony on the grounds that it
constitutes improper legal argument.

It is well-established that “[p]roffered expert

testimony generally will not help the trier of fact when it offers nothing more than what
lawyers for the parties can argue in closing arguments.” Cook ex rel. Est. of Tessier v.
Sheriff of Monroe Cnty., 402 F.3d 1092, 1111 (11th Cir. 2005). Moreover, “questions of
law are not subject to expert testimony.” Commodores Ent. Corp. v. McClary, 879 F.3d
1114, 1128–29 (11th Cir. 2018).

District “courts must remain vigilant against the

admission of legal conclusions,” and have therefore “excluded expert testimony that
employs terminology with legal import.” Tillman v. C.R. Bard, Inc., 96 F. Supp. 3d 1307,
1325 (M.D. Fla. 2015) (quotation omitted). And, most critically here, “[i]n the absence of
specialized trade usage, expert testimony regarding proper contract interpretation is
inadmissible.” Sparton Corp. v. United States, 77 Fed. Cl. 1, 8 (Fed. Cl. 2007)
Here, Malfara’s testimony will be excluded because it is impermissible legal
analysis. “Consistent” is not a technical term and does not require explanation from a
telecommunications expert. As recounted in the summary judgment Order, the issue of
exclusivity is ambiguous because the interaction between the Contract and the First
Amendment is uncertain, not because technical language stands in the way of a plain

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reading. Malfara’s interpretation may be viable, and Local Access will be free to advocate
for it at trial, but Malfara will not be permitted to testify on the subject.
D.

Starkey

There is no dispute that Starkey is a qualified expert in the field of
telecommunications, and the Court finds that he is qualified based on the evidence before
the Court. Local Access seeks to exclude several portions of Starkey’s December 2,
2022 and June 1, 2023 reports on the grounds that Starkey’s opinions: (1) are not
relevant; and (2) are impermissible legal advocacy.
First, Local Access seeks to exclude Starkey’s testimony on the issue of
exclusivity. (Doc. 1081-1 at 17–22). In its Response, Peerless notes that this section of
Starkey’s report is largely written in response to Malfara’s opinion as to the meaning of
“consistent” in the First Amendment. Like Malfara’s opinion, Starkey’s opinions assessing
the extent of exclusivity provided for by the Contract and First Amendment will be
excluded, as it is impermissible legal argument.
Next, Local Access seeks to exclude Starkey’s opinions regarding how FCC
regulations are implemented by telecommunications carriers, including how industry
actors comply with the Northern District of Texas decision, Sw. Bell Tel. Co. v. IDT
Telecomms., Inc., No. 3:09-CV-01268, 2012 WL 13093941(N.D. Tex. Mar. 9, 2012) (the
“IDT decision”). In his December 2, 2022 report, Starkey offers opinions with regard to
the potential application of FCC regulations and the IDT decision to § 5.18 of the Contract,
which provides that “Homing Tandem Service may not be used for termination of ‘pass
through’ or transit access traffic if such use results in an arrangement that seeks to avoid
the appropriate application of switched access charges.” (Doc. 135-1 at 6). Starkey

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provides an interpretation of several terms used in the agreement, including “pass
through” and “transit,” and describes a scenario involving the termination of calls to
prepaid calling card companies. As part of his report, Starkey includes an analysis of the
IDT decision. Local Access objects that this opinion contains improper legal analysis.
It is well-established that the interpretation of a contract is a question of law for the
Court. But this portion of Starkey’s report appears to offer clarification as to the meaning
of technical trade terms contained in the Contract, not bare legal opinions. Starkey’s
opinions appear to be aimed at demonstrating how the telecommunications industry
functions within the confines of the law, and he relies on his experience and training to
render his opinion.

Because Starkey’s opinions may assist the trier of fact in

understanding industry practice, the Daubert motion seeking to exclude his testimony will
be denied.
E.

Webber

There is no dispute that Webber is a qualified expert in the field of
telecommunications, and the Court finds that he is qualified based on the evidence before
the Court. In his November 3, 2022, December 2, 2022, and June 1, 2023 reports,
Webber estimated Peerless’s alleged damages caused by Local Access improperly
routing traffic to Inteliquent. This included estimating the minutes of Long-Distance traffic
that Peerless delivered to Local Access. To do so, Webber identified the markets in which
Peerless was capable of providing homing tandem services using information provided
by Peerless. (Doc. 1114-6, ¶ 6(a)). From there, Webber analyzed Local Access’s CDRs
to ascertain the volume of traffic Local Access routed through Inteliquent in those markets
while Peerless was capable of servicing the traffic. Webber then separated the traffic into

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Long-Distance and Local Transit and applied a per-minutes of use rate to each traffic type
to estimate the revenue Peerless would have generated had the traffic been routed to it
rather than Inteliquent. 3 (Doc. 1114-7, ¶¶ 33–35).
Local Access seeks to exclude portions of Webber’s reports as unreliable under
Daubert because it: (1) fails to account for whether Peerless had the capacity to handle
Local Access traffic at the time it was allegedly improperly routed to Inteliquent; and (2)
does not factor in the porting of telephone numbers in determining the composition of the
traffic.
1.

Peerless’s Capacity

Local Access claims that Webber’s report is unreliable because he based his
damages calculations on a Peerless document containing the dates that Peerless first
became capable of servicing traffic in a given market.

Local Access charges that

Webber’s analysis is “fatally flawed” because it takes for granted that Peerless had the
capacity to handle Local Access’s traffic on the dates Peerless claims it became active in
those markets. Local Access argues that this “large analytical leap” renders Webber’s
analysis irrelevant and therefore excludable under Daubert. (Doc. 1059 at 10).
Webber’s purported failure to consider Peerless’s capacity to service Local
Access’s traffic does not render his findings deficient under Daubert. Webber addresses
Local Access’s concern to some extent by factoring in a one-month time lag between the

In the summary judgment Order, the Court found that the First Amendment was
validly executed and that Peerless is obligated to pay Local Access seventy-five percent
of its Collected Tandem Access revenue. (Doc. 1201 at 14–17). To the extent Webber’s
damages calculations assume that Peerless’s obligation to pay Local Access Collected
Tandem Access Revenue was excused, these opinions will be inadmissible because they
are “not relevant and, ergo, non-helpful.” Daubert, 509 U.S. at 591 (quotation omitted).
3

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time Peerless began servicing traffic in a given market and Peerless’s capacity to handle
Local Access’s traffic in that market. (Doc. 1114-11 at 92:5–25). To the extent Local
Access believes that Peerless did not have sufficient capacity to route its traffic, it will
have the opportunity to prove it at trial and may cross-examine Webber on the question. 4
2.

Webber’s Composition of Local Access’s Traffic

In his June 1, 2023 report, Webber estimated that Local Access’s traffic consisted
of 4.58% switched access, 14.85% long-distance, and 80.56% local transit. (Doc. 11147, ¶ 11). Local Access argues that Webber’s analysis is unreliable because he did not
use an accurate statistical sample of Local Access’s data. In generating his report,
Webber relied on the North American Local Exchange NPA NXX Database, Wire Center
Edition (“NALENND”). (Id. ¶ 17). Local Access charges that Webber’s reliance on the
NALENND was errant because the NALENND does not provide information on the level
of an individual phone number; it provides data on blocks of 1000 telephone numbers.
Local Access explains that the NALENND does not account for telephone numbers that
have been ported to a new location sometime after it was originally assigned. Local
Access argues that the failure to consider number porting renders Webber’s estimate as
to the composition of Local Access’s traffic unreliable, because much traffic that is
represented as Local Transit in the NALENND may have been ported to a new location
and thus be, in actuality, Long-Distance traffic.

Local Access also seeks to exclude Webber’s opinions for failing to consider
whether Peerless advised Local Access of its attaining capacity in a given market. To the
extent Peerless was obligated to notify Local Access that it had capacity, which is
uncertain, this amounts only to a dispute of fact as to when damages began accumulating
and is not a reason to exclude Webber’s testimony.
4

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Webber testified that his analysis was at the 1000 block level only as codified in
the NALENND. (Doc. 1082-3 at 40:17–41:21). Webber claims he did not undertake an
analysis of any particular number in part because the overall effect on the traffic
composition would have been minimal. (Doc. 1114-7, ¶ 17). Webber explains that the
effect of numbers being ported to a long distance location would be counterbalanced
because much of number porting would be in the form of shifts from wireline to wireless
phones.

(Id.).

With potentially more wireless phones in a given 1000 block than

represented in the NALENND, more traffic may have actually been local than suggested
by the NALENND because MTAs, which are used for wireless phones, are often larger
than the LATAs used for wireline phones. (Id.). Nevertheless, Local Access urges that
Webber was required to undertake the analysis at the level of the individual phone number
to generate a reliable report under Daubert.
In essence, Local Access is arguing that Webber’s report should be excluded
because it fails to assess whether some telephone numbers were ported. But it is wellestablished that the “failure to include variables will affect the analysis’ probativeness, not
its admissibility.” Quiet Tech. DC-8, 326 F.3d at 1346 (quoting Bazemore v. Friday, 478
U.S. 385, 400 (1986) (Brennan, J., concurring)). Webber’s methodology is “empirically
testable,” as is the effect that number porting may have had on his sample, which, as
Webber recounts, could have the overall effect of increasing the composition of local
traffic in the sample. Id. Moreover, Webber’s unrebutted testimony is that the NALENND
database is commonly relied on to separate local and nonlocal traffic for billing purposes.
(Doc. 1114-8 at 39:5–23, 44:21–45:8). Webber’s analysis appears to be the product of
sound principles and methods and will thus be admissible under Daubert.

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IV.

CONCLUSION
For the reasons set forth above, it is ORDERED and ADJUDGED as follows:
1. Defendant’s Motion to Exclude Expert David Gabel (Doc. Nos. 1052, 1080)
is GRANTED in part as set forth herein and DENIED in all other respects.
2. Defendant’s Motion to Exclude Expert James M. Smith (Doc. Nos. 1053,
1073) is DENIED as moot.
3. Defendant’s Motion to Exclude Expert David Malfara (Doc. Nos. 1055,
1074) is GRANTED in part as set forth herein and DENIED in all other
respects.
4. Plaintiff’s Motion to Exclude Expert Michael Starkey (Doc. 1058) is
GRANTED in part as set forth herein and DENIED in all other respects.
5. Plaintiff’s Motion to Exclude Expert James Webber (Doc. Nos. 1059, 1082)
is DENIED.
6. Local Access LLC’s Request for Oral Argument Regarding Objection (Doc.
1029) is DENIED as moot.
DONE AND ORDERED in Orlando, Florida on March 4, 2024.

Copies furnished to:
Counsel of Record

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