Lester v. Wells Fargo Bank N A et al

Filing 126

MEMORANDUM RULING re 111 MOTION in Limine filed by Joanna Pruitt Lester. Signed by Chief Judge S Maurice Hicks, Jr on 4/7/2021. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
JOANNA PRUITT LESTER

CIVIL ACTION NO. 15-2439

VERSUS

JUDGE S. MAURICE HICKS, JR.

WELLS FARGO BANK, NA

MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING

Before the Court is a Motion in Limine challenging the testimony and exhibits of
Defense Expert Aaron Woolfson (“Woolfson”) filed by Plaintiff Joanna Pruitt Lester
(“Lester”). See Record Document 111. Defendant Wells Fargo Bank, NA (“Wells Fargo”)
opposes the Motion. See Record Document 112. For the reasons set forth below, the
Motion is hereby DENIED.
I.

EXPERT REPORT OF AARON WOOLFSON
Woolfson’s expert report analyzes the capabilities and use of specific automated

telephone dialing equipment and software supplied by Aspect Software (“Aspect”) to
Wells Fargo and used to contact customers. See Record Document 111-2. Woolfson’s
report details how the Aspect equipment functions and how Wells Fargo uses it to call
customers. See id. Woolfson concludes that significant human intervention is present in
implementing this call system, and the Aspect equipment is not capable of randomly
generating and subsequently calling phone numbers. See id. Woolfson’s report also
highlights his courtroom career as an expert witness on various telecommunications
issues, including his curriculum vitae (“CV”) and Westlaw printouts of court opinions as
exhibits. See id; Record Document 111-3.

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II.

DAUBERT STANDARD
Federal Rule of Evidence 702 states that “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.” Rule 702’s standard arises from the seminal case of Daubert v.
Merrell Dow Pharmaceuticals, Inc., where the Supreme Court established the role of trial
courts as gatekeepers for expert testimony, permitting such testimony only if it is both
reliable and relevant. See 509 U.S. 579, 589, 113 S. Ct. 2786, 2795 (1993).
In determining the reliability of proposed testimony, the Court stated a nonexhaustive list of factors to consider, including: (1) whether the technique or theory has
been tested, (2) whether the technique or theory has been subject to peer review and
publication, (3) the known or potential rate of error when applied, (4) the existence and
maintenance of standards and controls, and (5) general acceptance of the technique or
theory in the scientific community. See id. at 593-94. As for relevancy, the Court stressed
the question is one of “fit,” asking whether the expert testimony in question is well-suited
to the issues of a particular case such that it will help the jury in deciding issues or in
understanding evidence that is outside the average juror’s ability to understand absent
such help. Id. at 591-92.
Although the trial court must fulfill its gatekeeping function by ensuring the reliability
and relevancy of all expert testimony, the court is “not intended to serve as a replacement
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for the adversary system.” U.S. v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir.
1996). “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.” Daubert, 509 U.S. at 596. Importantly, the burden of
satisfying Rule 702 falls upon the proponent of an expert’s testimony to prove it is
admissible by a preponderance of the evidence. See Moore v. Ashland Chem., Inc., 151
F.3d 269, 276 (5th Cir. 1998).
III.

APPLICATION
Lester argues Woolfson’s proposed testimony and accompanying exhibits should

be excluded from trial because his expert report is irrelevant and unreliable. See Record
Document 111-1 at 1. Specifically, Lester believes Woolfson’s report (1) lacks a proper
factual basis because he did not visit and inspect the exact site and system from which
the calls originated, and (2) impermissibly makes legal conclusions. See id. at 6-15.
Lester also takes issue with Woolfson’s CV, noting the specific call system at issue is not
listed under his qualifications and expertise. See id. at 9. Lester primarily relies upon
Keyes v. Ocwen Loan Servicing, LLC in support of her arguments, where the Eastern
District of Michigan struck the plaintiff’s telecommunications expert for not personally
inspecting the dialing software at issue and reaching legal conclusions in his expert
report. See id; 335 F. Supp.3d 951 (E.D. Mich. Aug. 16, 2018). Keyes dealt with the same
overarching issue present in the instant matter—whether the Aspect system qualifies as

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an automatic telephone dialing system under the Telephone Consumer Protection Act
(“TCPA”). 1
A. Similar Site and System
Lester contends that Woolfson’s opinion is not rooted in a proper factual basis
because his conclusions arise from a 2018 visit to a call center in Beaverton, Oregon,
where he observed and inspected an Aspect Unified IP 6.6 system. See Record
Document 111-1 at 4-5. Lester believes Woolfson should have visited the Minnesota
facility and inspected an Aspect Unified IP 6.6 SP2 dialer from which the calls she
received originated. See Record Document 111-1 at 5. Lester equates Woolfson’s actions
to the rejected expert in Keyes who “merely reviewed manuals and ran tests on his
computer, and he has not inspected the actual Aspect System which [defendant] uses to
make calls.” 335 F.Supp.3d at 957.
Woolfson’s sworn explanations for his choice of facility and system satisfy the
Court that his opinion is based on appropriate factual observations. According to
Woolfson, the “SP2” addition to the system that called Lester is a security enhancement
that does not affect the call flow of the equipment. 2 See Record Document 112-1 at 2.
Thus, there is no fundamental difference between the Aspect Unified IP 6.6 system he
observed and the Aspect Unified IP 6.6 SP2 system that called Lester. See id. at 3. He
similarly states that because the Aspect system is a “closed-source code” system,
changes or modifications to the software are not available. See id. at 4. Thus, all Aspect

Coincidentally, Woolfson testified for the defense in this case. See Record Document 111-2.
Woolfson helpfully equates the addition of an SP2 security enhancement to the installation of an update
on one’s home computer. See id. at 3.
1
2

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systems used by Wells Fargo—regardless of their location—are “uniformly configured.”
Id. With this information in hand, the Court does not doubt the integrity of Woolfson’s
inspections and their applicability to the precise systems at issue in the instant matter.
Lester is free to cross-examine Woolfson on these issues, but the Daubert challenge on
this basis must be rejected.
B. Legal Conclusions
Federal Rule of Evidence 704 permits an expert witness to give his opinions on an
ultimate issue of fact, but he is not authorized to render legal opinions or reach legal
conclusions. See United States v. $9,041,595.68, 163 F.3d 238, 255 (5th Cir. 1998). An
opinion, however, is not objectionable merely because it embraces an ultimate issue. See
Fed. R. Evid. 704.
Lester argues Woolfson is improperly attempting to enter the “Law House” by citing
his past cases as an expert and including language from court opinions signifying their
outcomes. Record Document 111-1 at 11-12. Particularly concerning to Lester are those
cases where courts ruled the TCPA did not apply to certain automated dialing systems.
See id. Wells Fargo argues Woolfson’s report only reaches factual conclusions regarding
the Aspect system and assures the Court Woolfson will not dip his toes into these
prohibited waters. See Record Document 112 at 5.
The Court agrees that Woolfson’s report offers only factual conclusions about the
capabilities of the Aspect system to randomly generate and call numbers. No legal
conclusions about the applicability of the TCPA to this particular system are present. Past
judicial opinions on this issue included in Woolfson’s report do not constitute
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impermissible legal conclusions in the instant matter and serve only to elaborate on
Woolfson’s experience in this field. 3 As such, this challenge must also be rejected.
C. Qualifications
Finally, Lester charges the absence of the words “Aspect,” “Unified,” “IP,” or any
combination thereof in Woolfson’s CV or the qualifications section of his report prohibit
him from being labeled an expert on the system at issue. See Record Document 111-1
at 9. An examination of Woolfson’s personal documents and past experiences
demonstrate he is an expert in the telecommunications field. While these exact words
may not be present, Woolfson has in fact testified in court on the Aspect system before
in the Keyes case upon which Lester’s Motion relies. Woolfson is qualified to give his
expert opinion on the system at issue in this matter.
IV.

CONCLUSION
Lester’s Motion in Limine pertaining to the expert report of Woolfson and its

accompanying exhibits is hereby DENIED. An order consistent with the instant
memorandum ruling shall issue herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana on this 7th day of April,
2021.

3 Given Woolfson’s experience as an expert witness in numerous trials and his acknowledgement of his
role with respect to the jury and legal conclusions, the Court believes he understands the line of demarcation
he cannot cross from fact into law. Nevertheless, Lester can rest assured that the Court will take appropriate
action to safeguard the jury from impermissible statements should they arise at trial.

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