United States of America et al v. Dish Network LLC

Filing 727

OPINION entered by Judge Sue E. Myerscough on 12/7/2016. Plaintiffs' Revised Motion to Exclude Rebecca Kirk Fair's Revised Responsive Expert Report and Strike Related Testimony as Inadmissible under Rule 702, d/e 718 is DENIED. (MAS, ilcd)

E-FILED

Thursday, 08 December, 2016 10:37:16 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD
DIVISION
UNITED STATES OF AMERICA
and the STATES OF
CALIFORNIA, ILLINOIS,
NORTH CAROLINA, and OHIO,
Plaintiff,
v.
DISH NETWORK, L.L.C.,
Defendant.

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No. 09-3073

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This matter comes before the Court on the Plaintiffs’ Revised
Motion to Exclude Rebecca Kirk Fair’s Revised Responsive Expert
Report (Kirk Fair Report) and Strike Related Testimony as
Inadmissible Under Rule 702 (d/e 718) (Motion 718). The Court
previously excluded a portion of the Kirk Fair Report. Text Order
entered October 25, 2016. Motion 718 only concerns the remaining
portions of the Kirk Fair Report and her testimony. For the reasons
set forth below, Motion 718 is DENIED.

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BACKGROUND
This matter came for bench trial on January 19, 2016. The
Plaintiff States of California, Illinois, North Carolina, and Ohio
alleged that Defendant Dish Network, LLC (Dish), made either
directly or indirectly or as a result of a third party acting on its
behalf, illegal telemarketing calls directed at residential telephone
subscribers residing in the Plaintiff States in violation of the
Telemarketing Consumer Protection Act (TCPA), and the rule (FCC
Rule) promulgated thereunder by the Federal Communications
Commission (FCC), 47 U.S.C. § 227 and 47 C.F.R. § 64.1200.
Second Amended Complaint (d/e 257), Counts V and VI. Each
Plaintiff State also brought one or more claims for violations of each
Plaintiff State’s laws regulating telemarketing or deceptive business
practices generally. Second Amended Complaint, Counts VII-XII.
The parties’ experts Dr. Erez Yoeli, Ph.D., and John Taylor
used telephone area codes to determine whether a call recipient
resided in a Plaintiff State. See e.g., Opinion entered December 12,
2014 (d/e 445) (Opinion 445), at 124-39, 145. Dish challenged at
summary judgment the accuracy of area codes to prove states of
residency of telephone subscribers. Opinion 445, at 204. The
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Court found that issues of fact existed regarding whether area
codes proved the telephone subscribers’ states of residence. The
Court determined at summary judgment that Dish engaged in a
pattern and practice of making illegal telemarketing calls in
violation of the TCPA to residents of the Plaintiff States. The
evidence regarding the accuracy of area codes to prove telephone
subscribers’ state of residence was relevant to the appropriate
amount of statutory damages or civil penalties under the various
counts. Opinion 445, at 205-07.
Dish’s employees testified at trial that Dish had address
information for the intended recipients of Dish’s telemarketing calls
(Dish Telemarketing Call Recipients).1 See T 628: 2740-41
(Bangert); T 629: 3209-10 (Montano); T 627: 2639-40 (Dexter); T
617: 630 (Davis).2 The Court determined that Dish should have
produced that address information in discovery. The Court ordered
Dish to produce in supplemental discovery, “Documents in Dish’s
possession that contain information regarding the residential
1

For purposes of this Motion 718, calls made by Dish include calls made by Dish’s
Telemarketing Vendors eCreek Service Group and EPLDT. Dish selected the telephone
numbers that eCreek and EPLDT dialed to make telemarketing calls on behalf of Dish. See
Opinion 445, at 56, 63-65.
2 The Court cites to the trial transcript in the following format: letter “T,” the docket entry
number of the day’s transcript, a colon, the page number of the cited material, and the name of
the witness testifying in parentheses.

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addresses associated with the telephone numbers contained in the
Dish 2007-2010 calling records.” (Supplemental Discovery).
Opinion entered February 24, 2016 (d/e 624) (Opinion 624), at 5.
The Court further continued the trial to October 25, 2016, to allow
completion of the Supplemental Discovery. See Opinion 624, at 710. The trial resumed on October 25, 2016, and was completed on
November 2, 2016.
During the Supplemental Discovery, Dish produced 11
different sets of data containing address and telephone number
information of Dish Telemarketing Call Recipients (Address Data
Sets). On May 26, 2016, Dish’s counsel sent an email to Plaintiff
California’s counsel regarding the production. Dish’s counsel
described the source of two of the Address Data Sets, sets 10 and
11. PX 1446, Revised Supplemental Expert Report of Dr. Erez Yoeli
for Plaintiff States of California, Illinois, North Carolina & Ohio,
dated July 7, 2016 (Yoeli July 2016 Report), Appendix C, Email
from Dish’s Counsel to Plaintiff California’s Counsel dated May 26,
2016 (May 26, 2016 Email).3

The Court refers to documents by the exhibit numbers used at trial. The Plaintiffs used the
prefix “PX” their exhibit numbers. Dish used the prefix “DTX” for its exhibits relevant to this
Motion 718.
3

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Counsel for Plaintiff States sent an email to Dish’s counsel
asking for a description of Address Data Sets 1-9. PX 1446, Yoeli
July 2016 Report, Appendix B, Email from Plaintiff States’ Counsel
to Dish Counsel dated June 9, 2016 (June 9, 2016 Email), ¶ 1.
Dish’s counsel responded with a description of all of the Address
Data Sets. PX 1446, Yoeli July 2016 Report, Appendix D, Email
from Dish’s Counsel to Plaintiff State California’s Counsel dated
June 22, 2016 (June 22, 2016 Email).
On July 7, 2016, Plaintiffs’ expert Dr. Yoeli issued his report.
Dr. Yoeli relied on the 11 Address Data Sets produced by Dish; the
May 26, 2016 Email; the June 10, 2016 Email; the June 22, 2016
Email; and the information regarding the list of geographical
assignment of telephone area codes by the North American
Numbering Plan Administration (NANPA). PX 1446, Yoeli July 2016
Report, at 1; see T 710:99-100 (Yoeli). Dr. Yoeli also used seven
sets of call records admitted at the initial phase of the trial in
January and February 2016 (Call Records). The Call Records
contained records of telemarketing calls that Dish made from
September of 2007 through March of 2010.

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Based on this information, Dr. Yoeli opined on the time period
when address information in any Address Data Set was valid (Valid
Address). Dr. Yoeli identified the calls in the Call Records made to
telephone numbers with area codes assigned to the Plaintiff States
by the NANPA (Relevant State Call Records). PX 1446, Yoeli July
2016 Report, at 4.
Dr. Yoeli compared the telephone numbers in the Relevant
State Call Records with the Valid Addresses associated with those
telephone numbers at the times of the calls to determine the extent
to which the state of residence in the Address Data Sets agreed with
the state assigned to the telephone numbers’ area codes by NANPA.
Dr. Yoeli concluded, “My analysis shows that, for all Call Sets and
All Plaintiff States, the percentage of calls to addresses in the
Plaintiff State was at least 82%.” PX 1446, Yoeli July 2016 Report,
at 5-6; T 710: 100-02, 173-74 (Yoeli).
Dish’s expert Rebecca Kirk Fair critiqued Yoeli’s opinions set
forth in July 2016 Report. DTX 1096, Kirk Fair Report. Kirk Fair
holds an MBA in finance and applied economics. She has over 20
years of experience analyzing large data sets. The Plaintiffs do not

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dispute her qualifications as an expert in the analysis of large data
sets. See T 711:448-49, 451 (Kirk Fair).
Kirk Fair made a qualitative critique of Dr. Yoeli’s report. She
opined that Dr. Yoeli should have considered the purposes for
which the address and telephone data were collected in each of the
11 Address Data Sets, the meaning of the dates in the Address Data
Sets, and the purpose of the calls made to numbers in the various
Call Records. She opined that Dr. Yoeli’s analysis was
unreasonable and unreliable because of these failings. See Kirk
Fair Report, at 5-6, 44-45; T 711: 450-65, 474-97 (Kirk Fair). In
making this critique, Kirk Fair relied on the June 22, 2016 Email’s
descriptions of the Address Data Sets. See T 711:500-01 (Kirk
Fair). Kirk Fair did not quantify the extent to which Dr. Yoeli’s
errors affected the validity of his opinions. See T 711:511, 528 (Kirk
Fair).
In addition to criticizing Dr. Yoeli’s analysis, Kirk Fair
presented an alternative method of analysis that she referred to as
“triangulation.” Kirk Fair “triangulated” or looked for logical
consistencies and inconsistencies between the data in light of her
opinions of the purpose and reliability of the data collection and the
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purpose of the calling campaigns. Kirk Fair opined that such
consistencies between the purpose of the calls and the relevant
types of data sets corroborated the address information in the
Address Data Sets. See T 711: 490-96 (Kirk Fair).
Kirk Fair prepared an alternative analysis of the address data
and call records using her triangulation method. DTX 1096, Kirk
Fair Report, 24-32 and Exhibit 11. Kirk Fair divided the calls into
ten categories with differing degrees of reliability based on her
triangulation method. She also broke the call record data into the
seven different Call Records that Dr. Yoeli used in his analysis.
Kirk Fair did not draw any quantitative conclusions of the overall
reliability of the address information. She also did not compare
states of residence in the Address Data Sets with the states
assigned to the area codes of the telephone numbers associated
with the addresses. She testified that her assignment was to
critique Dr. Yoeli’s opinions, not offer an alternative opinion of the
reliability of area codes. See T 711: 547, and T 712: 692 (Kirk Fair).
The Plaintiffs move to strike Kirk Fair’s testimony and bar
admission of the Kirk Fair Report.

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ANALYSIS
Federal Rule of Evidence 702 provides:
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
and methods to the facts of the case.
Fed. R. Evid. 702. Generally, this Court must perform a gatekeeping function to determine that expert testimony is reliable and
relevant under the principles codified in Rule 702. See Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). The
Court must determine the reliability and the relevance of the
evidence. Ammons v. Aramark Uniform Services, Inc., 368 F.3d
809, 816 (7th Cir. 2004).
Kirk Fair is an expert qualified to analyze large, complicated
data sets. The Plaintiffs do not challenge her qualifications. The
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Court must determine whether her expert testimony is reliable and
relevant and whether her opinions will assist the Court as the trier
of fact in determining a fact in issue. See Ammons, 368 F.3d at
816. The Court must evaluate the reliability of the expert’s
methodology. Manpower Inc. v. Ins. Co. of Penn., 732 F.3d 796,
806 (7th Cir. 2013). In performing the gatekeeping function, the
Court does not evaluate the quality of the underlying data or the
quality of the expert’s conclusions. “The soundness of the factual
underpinnings of the expert’s analysis and the correctness of the
expert’s conclusions based on that analysis are factual matters to
be determined by the trier of fact . . . .” Smith v. Ford Motor Co.,
215 F.3d 713, 718 (7th Cir. 2000).
The Court’s gatekeeping function is less important in a bench
trial because the Court is also the finder of fact. The Court can
allow the evidence to be admitted at trial, but “disregard it if it
turns out not to meet the standard of reliability established by Rule
702.” In re Salem, 465 F.3d 767, 777 (7th Cir. 2006).
In light of this lessened importance of the gatekeeping function
in this bench trial, the Court will not strike Kirk Fair’s testimony
and will allow the admission of her expert report. She clearly is an
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expert in analyzing large data sets. She made a qualitative critique
of Dr. Yoeli’s report. A qualitative critique in a rebuttal report can
be a valid methodology. See U.S. Gypsum Co. v. Lafarge N. Am.
Inc., 670 F. Supp. 2d 768, 776 (N.D. Ill. 2009); Reginald Martin
Agency, Inc. v. Conseco Medical Ins. Co., 2007 WL 831613, at *4
(S.D. Ind. March 5, 2007). The Court, therefore, will not strike her
opinions as inadmissible.
As with all the expert evidence in this case, the Court, as the
finder of fact, will disregard any opinion of Kirk Fair that “turns out
not to meet the standard of reliability established by Rule 702”
when the Court makes its findings of fact and conclusions of law.
In re Salem, 465 F.3d at 777.
The Court will also allow the admission of Kirk Fair’s expert
report. Expert reports are hearsay and generally inadmissible. See
e.g., Bianco v. Globus Med., Inc., 30 F. Supp. 3d 565, 570 (E.D.
Tex. 2014). In a bench trial, however, a court can admit evidence
and later disregard incompetent, irrelevant, or inadmissible
evidence when making the decision. See e.g., United States v.
Reed, 744 F.3d 519, 525 (7th Cir.), cert. denied, __ U.S.__, 135 S.
Ct. 130 (2014); see also, Manual for Complex Litigation, § 12.51 (4th
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ed. 2004) (During a bench trial, the court may achieve efficiency by
allowing witnesses, including experts, to present opinions through
prepared statements which the expert adopts during trial testimony
which is then subject to cross examination.). In this case, the
Court has admitted the expert reports of the parties’ other experts
during their testimony, sometimes by the agreement of the parties
and sometimes over objection.4 The Court sees no reason to treat
Kirk Fair’s report differently. The Court will, as with all the other
expert reports, give the appropriate consideration to the report
when the Court makes its findings of fact and conclusions of law.
The Plaintiffs complain that Kirk Fair has no factual basis for
her opinions. The Plaintiffs argue that Kirk Fair relied entirely on
the June 22, 2016 Email for the factual underpinning of her report.
The Plaintiffs argue that the June 22, 2016 Email is inadmissible
hearsay. Even if true, an expert can rely on hearsay in appropriate
circumstances. Fed R. Evid. 703. In this case, Dr. Yoeli relied on
the June 22, 2106 Email as part of the basis for his opinions.
Under these circumstances, Kirk Fair similarly can rely on the same
source to critique his opinions. The Court will evaluate “the
The parties agreed to submit the opinions of Dish’s expert Dr. Robert Fenili, Ph.D., by his
report and excerpts of his deposition testimony. Other experts testified in person.
4

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soundness of the factual underpinnings” of Kirk Fair’s opinions and
the “correctness of [her] conclusions” when the Court makes its
findings of fact and conclusions of law. See Smith v. Ford Motor
Co., 215 F.3d at 718. The fact that Kirk Fair relied on possible
hearsay is not a basis for striking her expert testimony.
The Plaintiffs ask the Court to exclude the Kirk Fair Report
because Dish may attempt to use her report to support claims that
certain calls were not illegal because Dish had an Established
Business Relationship exception for those calls. See generally,
Plaintiffs’ Supplemental Brief on Dish’s Belated Established
Business Relationship (“EBR”) Assertions (d/e 717) (Plaintiffs’
Supplemental Brief).5 Kirk Fair did not offer any opinions on the
Establish Business Relationship exception. See T 712:729-31 (Kirk
Fair). Dish may or may not attempt to use her report to make some
argument to the Court. The Court will not anticipate possible
arguments. If and when Dish makes such arguments, the United
States can address the specifics of the arguments. The Court will
not speculate on the validity of possible arguments at this time.

For a discussion of the Establish Business Relationship exception, see Opinion 445, at 14-15,
17-18, 162-63, 213,
5

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Dish and the United States both raise issues regarding the
effect of the Court’s prior decisions on Dish’s ability to claim
Established Business Relationship exceptions, and Dish even asked
the Court to set aside part of the findings made at summary
judgment. See e.g., Plaintiffs’ Supplemental Brief, at 3-9; Dish
Network L.L.C.’s Further Opposition to Plaintiffs’ Brief Seeking to
Exclude Dish’s EBR Evidence (d/e 723), at 2-4. These matters are
not raised by Motion 718 and are not properly before the Court.
The Court will not set aside the summary judgment decision. The
Court will not decide issues related to Established Business
Relationship exceptions at this time. The parties may raise matters
such as these in their proposed findings of fact and conclusions of
law and related memoranda of law, or by other procedurally
appropriate means. If they choose to do so, the parties can brief the
issues fully at that time.
At this time the Court only decides, in the exercise of its
gatekeeping function, not to strike Kirk Fair’s testimony, and the
Court will allow Dish’s motion to admit her report. Again, as with
any expert evidence in a bench trial, the Court will “disregard it if it
turns out not to meet the standard of reliability established by Rule
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702” when the Court makes its findings of fact and conclusions of
law. In re Salem, 465 F.3d 767, 777 (7th Cir. 2006).
THEREFORE Plaintiffs’ Revised Motion to Exclude
Rebecca Kirk Fair’s Revised Responsive Expert Report and
Strike Related Testimony as Inadmissible under Rule 702 (d/e
718) is DENIED.
Enter: December 7, 2016

/s Sue E. Myerscough
UNITED STATES DISTRICT JUDGE

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