District Court (Fla.) Strikes Testimony of Plaintiffs’ Bar’s TCPA Expert Jeff Hansen

OLO next argues that Mr. Hansen’s testimony should be excluded because it is unreliable, as Mr. Hansen did not test, review, or inspect the actual platform or system before rendering his opinion. “Exactly how reliability is evaluated may vary from case to case, but what remains constant is the requirement that the trial judge evaluate the reliability of the testimony before allowing its admission at trial.” U.S. v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004). When evaluating the reliability of scientific expert opinion, a court may look to several factors, but “the test of reliability is ‘flexible,’ and Daubert‘s list of specific factors neither necessarily nor exclusively applies to all experts or in every case.” Kumho Tire Co., 526 U.S. at 141. Nevertheless, a good starting point is always the text of the rule itself, including whether the testimony or report is based upon sufficient facts or data. Fed. R. Evid. 702.  With respect to the Twilio program at issue in this case, Mr. Hansen reviewed the following documents to form his opinion: American Motor Company, LLC’s Responses and Objections to Plaintiff’s Discovery Requests (ECF No. 226-3); “Combined Twilio Response” (ECF No. 226-10); and two instructional YouTube videos on how to send SMS messages through the Twilio platform. The Combined Twilio Response includes Twilio’s answer to Plaintiff’s request for “[t]echnical specifications manuals and training materials regarding any Twilio Inc. software and hardware utilized by AMC and/or Thomas K. Rowe…;” it simply states “it is a cloud based communications company that provides a self-service platform for its customers, primarily web developers, to send text messages and make voice calls using Twilio’s web based application programing interface (“API”).” ECF No. 226-10, p. 8–9. Twilio then directs Plaintiff to its “publicly-accessible documentation relating to the functionality of its API” available on its website. Id. at 9. There are no technical specifications in Twilio’s response or on the website. As for the videos, one of the videos relied upon by Mr. Hansen, the video labeled as his Exhibit Y, is published by Twilio. However, the other video, labeled as Mr. Hansen’s Exhibit Z, is a presentation on how to send text messages with the Twilio platform by a man named Chris Chapman. There is no mention in the video regarding who Mr. Chapman is, whether Mr. Chapman is affiliated with Twilio, and there is no indication that Twilio has approved the content of Mr. Chapman’s video.  OLO argues that Mr. Hansen’s report is based on “public” information that was not specified in his report and that public information generally is an insufficient basis on which to base an expert opinion. Contrary to OLO’s assertion, Mr. Hansen did, in fact, identify the publicly available information on which he relied—Twilio’s website and the two Youtube videos. In addition, I do not find it dispositive that much of the information Mr. Hansen relied on was publicly available, especially where Twilio specifically directed Plaintiff to the materials as an accurate depiction of its system’s functionality. However, I do agree that the information Mr. Hansen reviewed is simply not a sufficient factual basis on which to base an expert opinion regarding an ATDS.  As above, Strauss proves to be illustrative, although this time in favor of Defendant. See Strauss v. CBE Group, Inc., 2016 WL 2641965 (S.D. Fla. Mar. 23, 2016). In Strauss, as Plaintiff points out, Mr. Hansen was qualified as an expert and was allowed to testify without having inspected the actual dialing platform used by the defendant. Id. at *3. However, the amount of information reviewed by Mr. Hansen in Strauss is markedly different from the instant case. In Strauss, Mr. Hansen had previously provided a written expert report on the specific dialing system at issue, had twice reviewed as an expert the defendant’s manual for the application allegedly used, and reviewed deposition transcripts on defendant’s predictive dialing systems in two other cases. Id. Notably, he also reviewed CBE’s patent application, the plaintiff’s account notes, and the deposition transcript of the defendant’s corporate representative. Id. Mr. Hansen’s analysis in Strauss is far more extensive than the review done in the case at bar. While Mr. Hansen reviewed patent applications for other historical telephone dialing systems in the instant action, he did not use them as a point of comparison because he did not review the patent application for Twilio’s specific system. Further, he did not test or use the software in any way, the Twilio discovery responses he reviewed were vague and highly non-technical, as were ICO’s discovery responses, and one of the two Youtube videos he relied upon was not a Twilio approved video. It does not appear that Mr. Hansen followed his own normal, rather extensive, methodology in forming his opinion in this case.  In another TCPA case in this district, Legg v. Voice Media Group, Inc., the court determined that basing an expert opinion simply on reviewing the company’s handbook for the alleged ATDS was “an insufficient basis for [the expert’s] opinion regarding the capabilities of [the company’s] systems.” Legg v. Voice Media Group, Inc., 2014 WL 1767097, at *5 (S.D. Fla. May 2, 2014). The court specifically mentioned that the expert “cannot even say whether [the company’s] own equipment conforms to the specifications discussed in its handbook,” never having reviewed the system himself. Id. The court found that the expert’s opinion bore an inadequate relationship with the supporting data. Id. (citing Hendrix ex rel. G.P. v. Evenflo Co, 609 F.3d 1183, 1194 (11th Cir.2010)). Similarly in the case at bar, Mr. Hansen does not have sufficient information on which to base his opinion, rendering it simply “the ipse dixit of the expert.” Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir. 2010).  In Plaintiff’s response, he attempts to bolster the basis of Mr. Hansens’ report by citing a number of cases that supposedly support the position that an expert in a TCPA case need not physically inspect or test the system to have an adequate basis on which to form his opinion. Unfortunately, in the cases cited by Plaintiff, none of the experts were being challenged under a Daubert standard and the cases are otherwise distinguishable from the facts of this case. In both Satterfield and Sherman, the posture of both cases was that of summary judgment and neither case actually mentions whether the system had been physically inspected or not. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009); Sherman v. Yahoo!, Inc., 997 F.Supp.2d 1129 (S.D. Cal. 2014). In Hunt, the expert was unable to view the system because it had been dismantled after initiation of the lawsuit; however, the expert did not ultimately testify about whether the system used was an ATDS, but instead opined about the incongruities with the Defendant’s alleged low-tech dialing methods and other call centers the expert had seen. Hunt v. 21st Mortg. Corp., 2014 WL 1664288 (N.D. Ala. April 25, 2014). None of these cases support Plaintiff’s position that Mr. Hansen has based his opinion on adequate facts, especially in light of Mr. Hansen’s extensive review of patents and documents in at least one other case. See Strauss v. CBE Group, Inc., 2016 WL 2641965, *3 (S.D. Fla. Mar. 23, 2016). Allowing Mr. Hansen’s expert report or testimony before the jury would be contrary to the standards of reliability required under the Federal Rules of Evidence and the Daubert standard.