Eldridge v. Pet Supermarket, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 18-22531-Civ-WILLIAMS/TORRES

TROY ELDRIDGE,

Plaintiff,

v.

PET SUPERMARKET, INC.,

Defendant.

___________________________________________/

ORDER ON PENDING MOTIONS RELATED TO EXPERT SNYDER

This matter is before the Court on Pet Supermarket, Inc.’s (“Defendant”)

Daubert motion [D.E. 78] and motion to strike [D.E. 87] against Troy Eldridge’s

(“Plaintiff”) expert Randall Snyder (“Mr. Snyder”). Plaintiff responded to

Defendant’s Daubert motion on September 11, 2019 [D.E. 103] and the motion to

exclude on September 4, 2019. [D.E. 98]. Plaintiff also filed his own motion to

strike. [D.E. 92]. Defendant replied to the Daubert motion on September 18, 2019

[D.E. 112] and the motion to strike on September 11, 2019. [D.E. 104]. Therefore,

Defendant’s motions are now ripe for disposition. After careful consideration of the

motions, responses, replies, relevant authorities, and for the reasons discussed

below, Defendant’s motions are GRANTED in part and DENIED in part.

Plaintiff’s motion is DENIED.1

1 On January 27, 2020, the Honorable Kathleen Williams referred these

motions to the Undersigned Magistrate Judge for disposition. [D.E. 129].

I. APPLICABLE PRINCIPLES AND LAW

The decision to admit or exclude expert testimony is within the trial court’s

discretion and the court enjoys “considerable leeway” when determining the

admissibility of this testimony. See Cook v. Sheriff of Monroe County, Fla., 402 F.3d

1092, 1103 (11th Cir. 2005). As explained in Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579 (1993), the admissibility of expert testimony is governed by Fed. R.

Evid. 702. The party offering the expert testimony carries the burden of laying the

proper foundation for its admission, and admissibility must be shown by a

preponderance of the evidence. See Allison v. McGhan Med. Corp., 184 F.3d 1300,

1306 (11th Cir. 1999); see also United States v. Frazier, 387 F.3d 1244, 1260 (11th

Cir. 2004) (“The burden of establishing qualification, reliability, and helpfulness

rests on the proponent of the expert opinion, whether the proponent is the plaintiff

or the defendant in a civil suit, or the government or the accused in a criminal

case.”).

“Under Rule 702 and Daubert, district courts must act as ‘gate keepers’ which

admit expert testimony only if it is both reliable and relevant.” Rink v. Cheminova,

Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (citing Daubert, 509 U.S. at 589).2 The

2 Rule 702 states:

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.

purpose of this role is “to ensure that speculative, unreliable expert testimony does

not reach the jury.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256

(11th Cir. 2002). Also, in its role as gatekeeper, its duty is not Ato make ultimate

conclusions as to the persuasiveness of the proffered evidence. See Quiet Tech. DC-

8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)

To facilitate this process, district courts engage in a three-part inquiry to

determine the admissibility of expert testimony:

(1) the expert is qualified to testify competently regarding the matters

he intends to address; (2) the methodology by which the expert reaches

his conclusions is sufficiently reliable as determined by the sort of

inquiry mandated in Daubert; and (3) the testimony assists the trier of

fact, through the application of scientific, technical, or specialized

expertise, to understand the evidence or to determine a fact in issue.

City of Tuscaloosa, 158 F.3d 548, 562 (11th Cir. 1998) (citations omitted). The

Eleventh Circuit refers to the aforementioned requirements as the “qualification,”

“reliability,” and “helpfulness” prongs and while they “remain distinct concepts”;

“the courts must take care not to conflate them.” Frazier, 387 F.3d at 1260 (citing

Quiet Tech, 326 F.3d at 1341).

In determining the reliability of a scientific expert opinion, the Eleventh

Circuit also considers the following factors to the extent possible:

(1) whether the expert’s theory can be and has been tested; (2) whether

the theory has been subjected to peer review and publication; (3) the

known or potential rate of error of the particular scientific technique;

and (4) whether the technique is generally accepted in the scientific

community. Notably, however, these factors do not exhaust the

universe of considerations that may bear on the reliability of a given

expert opinion, and a federal court should consider any additional

factors that may advance its Rule 702 analysis.

Quiet Tech, 326 F.3d at 1341 (citations omitted). The aforementioned factors are

not “a definitive checklist or test,” Daubert, 509 U.S. at 593, but are “applied in

case-specific evidentiary circumstances,” United States v. Brown, 415 F.3d 1257,

1266 (11th Cir. 2005). While this inquiry is flexible, the Court must focus “solely on

principles and methodology, not on conclusions that they generate.” Daubert, 509

U.S. at 594-95. It is also important to note that a “district court’s gatekeeper role

under Daubert ‘is not intended to supplant the adversary system or the role of the

jury.’” Quiet Tech, 326 F.3d at 1341 (quoting Maiz v. Virani, 253 F.3d 641, 666

(11th Cir. 2001)). Rather, “[v]igorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof are the traditional and

appropriate means of attacking but admissible evidence.” Daubert, 509 U.S. at 580;

see also Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir.

2014) (“As gatekeeper for the expert evidence presented to the jury, the judge ‘must

do a preliminary assessment of whether the reasoning or methodology underlying

the testimony is scientifically valid and of whether that reasoning or methodology

properly can be applied to the facts in issue.’”) (quoting Kilpatrick v. Breg, Inc., 613

F.3d 1329, 1335 (11th Cir. 2010)).

“[T]he objective of [the gatekeeping role] is to ensure the reliability and

relevancy of expert testimony. It is to make certain that an expert, whether basing

testimony upon professional studies or personal experience, employs in the

courtroom the same level of intellectual rigor that characterizes the practice of an

expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152

(1999). The district court’s role is especially significant since the expert’s opinion

“can be both powerful and quite misleading because of the difficulty in evaluating

it.” Daubert, 509 U.S. at 595 (quoting Jack B. Weinstein, Rule 702 of the Federal

Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)).

II. ANALYSIS

Plaintiff filed this putative class action alleging that Defendant violated the

Telephone Consumer Protection Action, 47 U.S.C. § 227, et seq. (“TCPA”). The

TCPA allows an individual to bring claims for unwanted calls made with an

automatic telephone dialing system (“ATDS”). An ATDS system within the

meaning of the TCPA is “equipment which has the capacity (A) to store or produce

telephone numbers to be called, using a random or sequential number generator;

and (B) to dial such numbers.” 47 U.S.C. § 227. On March 15, 2019, Plaintiff

served Mr. Snyder’s declaration, including his expert testimony and several

attachments. [D.E. 56-1]. The parties then deposed Mr. Snyder on May 20, 2019.

Defendant now seeks to exclude Mr. Snyder because he fails many of the

admissibility standards under Rule 702 of the Federal Rules of Evidence and

Daubert. Defendant claims, for example, that Mr. Snyder is unhelpful to the trier of

fact in determining the ascertainability of the putative class. Defendant also

accuses Mr. Snyder of failing to perform any analysis of the proposed class and

neglecting to develop any hypothesis to determine if phone numbers and subscriber

information can even be cross-referenced. Moreover, Defendant argues that Mr.

Snyder is unreliable because he fails to support his conclusions with any reliable

facts. Instead, Defendant suggests that Mr. Snyder relies on flawed definitions as

to what constitutes an ATDS under the TCPA despite having no relevant knowledge

or training of the underlying telephone systems. And even if Mr. Snyder used a

proper methodology, Defendant maintains that Mr. Snyder’s opinions cannot stand

because it is replete with impermissible legal conclusion. For these reasons,

Defendant requests that Mr. Snyder and his expert report be excluded.

A. Whether Mr. Snyder is Qualified

The first issue is whether Mr. Snyder is qualified to render an expert opinion

in this case. An expert may be qualified to testify in multiple ways: ‘”by knowledge,

skill, experience, training, or education’” and “not necessarily unqualified simply

because her experience does not precisely match the matter at hand.” Furmanite

Am., Inc., 506 F. Supp. 2d at 1129 (citing Maiz, 253 F.3d at 665, 669). “Determining

whether a witness is qualified to testify as an expert ‘requires the trial court to

examine the credentials of the proposed expert in light of the subject matter of the

proposed testimony.’” Clena Investments, Inc. v. XL Specialty Ins. Co., 280 F.R.D.

653, 661 (S.D. Fla. 2012) (quoting Jack v. Glaxo Wellcome, Inc., 239 F.Supp.2d 1308,

1314–16 (N.D. Ga. 2002)). “In other words, a district court must consider whether

an expert is qualified to testify competently regarding the matters he intends to

address.” Clena Investments, Inc., 280 F.R.D. at 661 (citing City of Tuscaloosa, 158

F.3d at 562–63).

Determining an expert’s qualifications is not a stringent inquiry “and so long

as the expert is minimally qualified, objections to the level of the expert’s expertise

[go] to credibility and weight, not admissibility.” Vision I Homeowners Ass’n, Inc. v.

Aspen Specialty Ins. Co., 674 F. Supp. 2d 1321, 1325 (S.D. Fla. 2009) (citations

omitted); see also Johnson v. Big Lots Stores, Inc., 2008 WL 1930681, *14 (E.D .La.

Apr. 29, 2008) (summarizing Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 507

n. 10 (5th Cir. 1999), as “explaining that after an individual satisfies the relatively

low threshold for qualification, the depth of one’s qualification may be the subject of

vigorous cross-examination”); see also Martinez v. Altec Indus., Inc., 2005 WL

1862677, *3 (M.D. Fla. Aug. 3, 2005) (quoting Rushing, 185 F.3d at 507 (“As long as

some reasonable indication of qualifications is adduced . . . qualifications become an

issue for the trier of fact rather than for the court in its gate-keeping capacity”)).

Defendant argues that Mr. Snyder is unqualified because – despite his

substantial education, training, and experience in the telecom industry – he has no

experience in determining whether Defendant’s telephone systems functioned as an

ATDS or if they could send text messages without human intervention. Defendant’s

argument is unpersuasive, however, because “an expert’s qualifications need not be

narrowly tailored to the precise circumstances of [a] case[.]” Balthazar Mgmt., LLC

v. Beale St. Blues Co., Inc., 2018 WL 6928698, at *3 (S.D. Fla. Oct. 30, 2018); see

also Furmanite Am., Inc. v. T.D. Williamson, 506 F. Supp. 2d 1126, 1129 (M.D. Fla.

2007) (“An expert is not necessarily unqualified simply because [his] experience

does not precisely match the matter at hand.”) (citing Maiz, 253 F.3d at 665).

Indeed, an expert “may testify regarding narrow sub-topics within his broader

expertise — notwithstanding a lack of specific experience with the narrower area —

as long as his testimony would still assist a trier of fact.” Remington v. Newbridge

Secs. Corp., 2014 WL 505153, at *4 (S.D. Fla. Feb. 7, 2014); see also Maiz, 253 F.3d

at 665 (11th Cir. 2001) (affirming the district court’s decision to permit an economic

expert to testify on damages relating to real-estate fraud, even though the expert

had no specific real-estate experience, finding the issue of damages was sufficiently

within the expert’s broader expertise).

Given Mr. Snyder’s education credentials and substantial experience in

telecommunications, he meets the “relatively low threshold” for an expert to be

qualified. J.G. v. Carnival Corp., 2013 WL 752697, at *3 (S.D. Fla. Feb. 27, 2013)

(citing Rushing v. Kan. City S. Ry. Co., 185 F.3d 496, 507 (5th Cir. 1999) (explaining

that once there exists “reasonable indication of qualifications,” those qualifications

then “become an issue for the trier of fact rather than for the court in its gate-

keeping capacity”)). Mr. Snyder has, for instance, 34 years of experience in

telecommunications with a background in both wireline and wireless network

technology. He also has been retained as a testifying or consulting expert in more

than 320 TCPA cases because of his background in software engineering. While he

may not be the best expert to opine on the facts of this case, that is not the

threshold for an expert to be qualified under Daubert. Rather, so long as the expert

is “minimally qualified, objections to the level of the expert’s expertise go to

credibility and weight, not admissibility.” Nat’l Union Fire Ins. Co. of Pittsburgh v.

Tyco Integrated Sec., LLC, 2015 WL 11251759, at *1 (S.D. Fla. July 6, 2015) (citing

Clena Investments, Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653, 661 (S.D. Fla.

2012)).

Because Mr. Snyder meets that threshold and possesses general knowledge of

the facts in this case, he is qualified under Daubert despite lacking specialized

training and experience with Defendant’s telephone systems. See Whelan v. Royal

Caribbean Cruises Ltd., 976 F.Supp.2d 1328, 1331 (S.D. Fla. 2013) (“[A] witness

who possesses general knowledge of a subject may qualify as an expert despite

lacking specialized training or experience, so long as his testimony would likely

assist a trier of fact.”). To the extent Defendant seeks to undermine Mr. Snyder’s

knowledge of the telephone systems that are at issue in this case, Defendant may do

so via impeachment. Therefore, Defendant’s motion to exclude Mr. Snyder as

unqualified is DENIED.

B. Whether Mr. Snyder’s Opinions are Reliable

The next issue is whether Mr. Snyder’s opinions are reliable. “The reliability

standard is established by Rule 702’s requirement that an expert’s testimony

pertain to ‘scientific . . . knowledge,’ since the adjective ‘scientific’ implies a

grounding in science’s methods and procedures, while the word ‘knowledge’

connotes a body of known facts or of ideas inferred from such facts or accepted as

true on good grounds.” Daubert, 509 U.S. at 580. This entails an assessment of

whether the “methodology underlying the testimony is scientifically valid.” Id. at

592. The four non-exhaustive factors used to evaluate the reliability of a scientific

expert opinion include the following:

(1) whether the expert’s theory can be and has been tested; (2) whether

the theory has been subjected to peer review and publication; (3) the

known or potential rate of error of the particular scientific technique;

and (4) whether the technique is generally accepted in the scientific

community.

Frazier, 387 F.3d at 1262 (citations omitted).

Defendant claims that Mr. Snyder’s opinions are unreliable because they are

based on insufficient facts, evidence, analysis, testing, personal knowledge, and

experience with the telephone systems in this case.3 Defendant first argues that

Mr. Snyder’s expert report conflicts with his deposition testimony. Mr. Snyder

opines, for instance, in his report that two of the telephone systems have “the

capacity to store or produce telephone numbers using a random or sequential

number generator, and to dial such numbers.” [D.E. 56-1 at ¶¶12-13, 15-16]. Yet,

when Defendant deposed Mr. Snyder, Defendant asserts that Mr. Snyder testified

that one system does not have the capacity to produce or dial telephone numbers.

Given this contradiction, Defendant maintains that Mr. Snyder’s opinions are

unclear and unreliable.

Defendant also contends that Mr. Snyder’s opinions should be stricken

because he did not physically inspect the equipment or software functionality that

allegedly violated the TCPA. This is apparently a critical mistake because, without

a physical inspection, Mr. Snyder cannot opine with any degree of confidence that

the allegations in this case have merit. Defendant further argues that Mr. Snyder

failed to review any deposition testimony or system functions, and that he is

3 This argument is related directly to Rule 702, which requires that an expert’s

testimony be “based on sufficient facts or data.”

attempting to regurgitate facts without any testing, corroboration, personal

knowledge, or analysis. Defendant suggests that Mr. Snyder’s opinion is akin to no

opinion at all because he has no idea how the the internal processes of the telephone

systems work or how (and to what extent) they interact with each other. While Mr.

Snyder performed a user-based test run of the telephone systems by sending out

trial text messages and providing screenshots of the user interface, Defendant

maintains that these screenshots are not a factual basis to form any credible

opinion about the capacities of the telephone equipment. Defendant therefore

concludes that the Court should exclude Mr. Snyder’s opinions as speculative and

unreliable.

Defendant has raised several viable arguments as to why a jury should not

find Mr. Snyder’s opinions to be compelling. The problem with these arguments is

that none of them are sufficient for a wholesale exclusion under Daubert. Take, for

instance, Defendant’s argument that Mr. Snyder’s opinions in his expert report are,

in some respects, contradictory to his deposition testimony. While that may be true,

it does not present a viable reason for exclusion. Rather, these reasons are aimed at

the weight and credibility of Mr. Snyder’s opinions – not whether they should be

admissible. If Defendant wishes to undermine Mr. Snyder’s opinions, Defendant

may impeach Mr. Snyder and have the jury determine the appropriate weight that

should be given to his opinions.

The same reasoning applies to the question of whether Mr. Snyder should be

excluded for failing to inspect the telephone equipment in this case. Defendant

claims that, with respect to one system, Mr. Snyder relied solely on an operational

handbook and log files with no assurances that this is how the telephone systems

operate. Defendant’s argument is not entirely without merit because courts have

excluded Mr. Snyder in prior cases for similar reasons. See, e.g., Legg v. Voice

Media Grp., Inc., 2014 WL 1767097, at *5 (S.D. Fla. May 2, 2014) (striking Mr.

Snyder because he did “not know whether [the defendant] actually used the systems

discussed in the handbook, or in the manner provided in the handbook. Indeed,

Snyder cannot even say whether Phaz2’s own equipment conforms to the

specifications discussed in its handbook.”).

But, this case is noticeably different because there is other corroborating

evidence in the record that the materials relied upon is how the systems actually

operated. [D.E. 77-3 at 40] (“Q. And does this document accurately describe how the

Oracle Responses system works for SMS services? A. Yes.”). There is also evidence

that Defendant’s telephone systems are similar in operational functions, adding

additional assurances that Mr. Snyder’s opinions are reliable. [D.E. 77 at ¶¶ 62,

73]. While the failure to physically inspect a telephone system may provide a

sufficient reason in some circumstances to exclude an expert’s opinion, it is

unpersuasive to do so when there is other evidence in the record that gives an

expert’s opinion additional credibility. See, e.g., Strauss v. CBE Grp., Inc, 2016 WL

2641965, at *3 (S.D. Fla. Mar. 23, 2016) (“Although Hansen did not visually inspect

the equipment in preparing the Report, he reviewed, among other things, CBE’s

patent application for the MCA, Plaintiff's account notes, and Johnson's deposition

transcript. In light of Hansen’s familiarity with CBE’s dialing systems and review

of evidence particular to this case, the Court finds sufficiently reliable Hansen’s

expert opinion on the technologies CBE used to place the calls at issue.”). Because

Mr. Snyder reviewed at least one of Defendant’s telephone systems and there is

other evidence in the record that adds credibility to Mr. Snyder’s opinions, the

decision to forego a physical inspection is inconsequential. See Abante Rooter &

Plumbing, Inc. v. Alarm.com Inc., 2018 WL 3707283, at *9 (N.D. Cal. Aug. 3, 2018)

(“[T]he fact that Mr. Snyder did not physically inspect the Ytel Dialer does not

preclude Mr. Snyder’s testimony about its nature.”).4

C. Whether Mr. Snyder’s Opinions are Helpful

The third factor to consider is whether Mr. Snyder will be helpful to the trier

of fact. “[E]xpert testimony is admissible if it concerns matters that are beyond the

understanding of the average lay person” and offers something “more than what

lawyers for the parties can argue in closing arguments.” Frazier, 387 F.3d at 1262-

63 (citations omitted). While “[a]n expert may testify as to his opinions on an

ultimate issue of fact . . . he ‘may not testify as to his opinion regarding ultimate

legal conclusions.’” Umana-Fowler v. NCL (Bahamas) Ltd., 49 F. Supp. 3d 1120,

1122 (S.D. Fla. 2014) (quoting Delatorre, 308 F. App’x at 383). The Eleventh Circuit

has also made clear that “merely telling the jury what result to reach is unhelpful

4 We need not specifically address Defendant’s remaining arguments because

they are weaker than the ones already considered. Defendant contends, for

example, that Mr. Snyder’s opinions rely on an outdated definition of “capacity”

with respect to two of the telephone systems. But, even if true, it is still not a

sufficient reason to exclude Mr. Snyder. Instead, Defendant may impeach Mr.

Snyder and seek to undermine his opinions at trial.

and inappropriate.” Umana-Fowler, 49 F. Supp. 3d at 1122 (citing Montgomery v.

Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990)).

Defendant argues that Mr. Snyder is unhelpful to the trier of fact because his

opinions on whether the proposed class is ascertainable falls within the knowledge

of a mere lay witness. Plaintiff disagrees and claims that Mr. Snyder has 34 years

of experience in the telecommunications industry and he has testified or consulted

for parties in approximately 360 cases involving the TCPA. Plaintiff also highlights

Mr. Snyder’s prior work experience as a software engineer, including Mr. Snyder’s

responsibilities for designing, developing, testing, and deploying computer code for

complex data telecommunications systems. Because Mr. Snyder has also taught

classes on telecommunications network technologies, authored educational

textbooks, and co-founded the first combined text message based mobile marketing

system, Plaintiff concludes that Mr. Snyder is more than qualified to be an expert in

this case.

There is no question that Mr. Snyder has an impressive resume and that he

is qualified to render an opinion in this case. However, Mr. Snyder’s expert report

fails to rely on any special expertise in ascertaining the identity of the proposed

class. Mr. Snyder opines, for example, that “[r]eliable current contact information

can be ascertained based solely on the telephone number called on the date the call

was made.” [D.E. 56-1 at ¶ 87]. Mr. Snyder then states that “commercially

available third-party information service companies that collect, maintain, and

analyze telephone number data,” can be used to identify proposed class members.

If Mr. Snyder’s statement is true, he offers “nothing more than what a

factfinder could comprehend through the presentation of non-expert witnesses[.]”

Legg, 2014 WL 1767097, at *3. In other words, there is no special expertise that

Mr. Snyder presents if the information needed to determine whether a class is

ascertainable is simply available from a review of third-party sources. Judge Cohn

struck Mr. Snyder’s expert testimony for similar reasons in Legg because the

method that Mr. Snyder used in that case, albeit time-consuming, was within the

understanding of an average lay person. See id. at *3. The same reasoning applies

here because “[e]xpert testimony . . . is meant to help the factfinder interpret

evidence or issues that can only be understood through the application of

specialized expertise.” Id. at *3 (quoting Rink, 400 F.3d at 1291); see also Frazier,

387 F.3d at 1262 (finding that expert testimony is admissible only if it “concerns

matters that are beyond the understanding of the average lay person.”). Because

Mr. Snyder’s opinion on ascertainability relies on nothing more than what a

factfinder could comprehend through non-expert witnesses and third-party sources,

Mr. Snyder’s testimony does not rise to the level of an expert witness on this specific

issue and therefore Defendant’s Daubert motion to strike this limited portion of Mr.

Snyder’s opinion is GRANTED.

In a similar vein, Defendant complains that Mr. Snyder’s expert report must

also be stricken because it includes impermissible legal conclusions. Defendant

argues that Mr. Snyder included in his expert report the exact language of the

TCPA to meet the statutory definition of an ATDS and that he is attempting to

instruct the jury as to the state of the law. [D.E. 56-1 at ¶12] (“Defendant utilized

equipment which has the capacity to store or produce telephone numbers using a

random or sequential number generator, and to dial such numbers”); (“Defendant

utilized equipment which has the capacity to dial telephone numbers from a stored

list or database of telephone numbers without any human involvement.”).

Defendant relies again on Judge Cohn’s decision in Legg, where Mr. Snyder

intended to testify that the systems in that case met the legal definition of an

ATDS. However, Defendant’s reliance on Legg is not entirely on point because Mr.

Snyder has merely tracked the language of the TCPA; he has not affirmatively

opined that Defendant’s systems constitute an ATDS. Defendant has a valid point,

on the other hand, that the definition used is an implicit way of instructing the jury

of the law and therefore rises to the level of a legal conclusion.

But, there is a subtle and important difference when an expert directly states

that a system constitutes an ATDS as opposed to a system that meets every

component of an ATDS definition. As a recent decision in another district made

clear with respect to Mr. Snyder, the former is an impermissible legal conclusion

because it directly instructs the jury on a legal determination whereas the latter

leaves it to the jury to determine the weight and credibility of the opinion:

Although [Mr. Snyder’s] conclusion tracks the statutory definition of

an ATDS, and Snyder recites his understanding of how an ATDS is

defined, Snyder’s report does not explicitly conclude that the Five9

dialing system is an “ATDS” under the TCPA. To the extent that

Snyder attempts to offer an opinion on the legal definition of ATDS,

the meaning of the TCPA, or the ultimate legal implications of the

facts at issue at trial, those opinions could, and should, be excluded

under Rule 702. But Snyder does not necessarily offer legal

conclusions simply because his opinion about the Five9 system's

capacity to make automatically-dialed calls tracks the statutory

definition of an ATDS. Rather, Snyder'’ expected opinion testimony

appears to “embrace[ ] an ultimate issue of fact” rather than “state[ ] a

legal conclusion.” Id. (noting that district courts must distinguish

between the two).

Morgan v. On Deck Capital, Inc., 2019 WL 4093754, at *3 (W.D. Va. Aug. 29, 2019

(internal citation marks omitted). Because Mr. Snyder’s opinion in this case is more

analogous to Morgan, merely tracks the language of the TCPA, and leaves it to the

jury to determine whether the telephone systems constitute an ATDS, Mr. Snyder

has not crossed the threshold of presenting an impermissible legal conclusion.

Therefore, to this extent, Defendant’s Daubert motion is DENIED. See, e.g., Perez

v. Rash Curtis & Assocs., 2019 WL 1491694, at *4 (N.D. Cal. Apr. 4, 2019) (denying

defendant’s motion to strike because “the function and capacities of these devices

bear on the central factual issues before the trier of fact”).

IV. CONCLUSION

For the foregoing reasons, the pending motions related to Mr. Snyder are

GRANTED in part and DENIED in part:

A. Defendant’s Daubert motion to exclude Mr. Snyder as unqualified,

unreliable, and unhelpful is DENIED. [D.E. 78].

B. Defendant’s motion to exclude Mr. Snyder’s opinion on whether the

proposed class is ascertainable is GRANTED. [D.E. 78].

C. Defendant’s motion to exclude Mr. Snyder’s supplemental expert report is

DENIED, including Defendant’s motion for fees and costs.5 [D.E. 87].

D. Plaintiff’s motion to strike Defendant’s motion to strike is DENIED.6

[D.E. 92].

DONE AND ORDERED in Chambers at Miami, Florida, this 6th day of

March, 2020.

/s/ Edwin G. Torres

EDWIN G. TORRES

United States Magistrate Judge

5 On August 20, 2019, Defendant filed a motion to strike Mr. Snyder [D.E. 87]

because Plaintiff served it late on July 24, 2019 – six weeks after discovery closed on

June 14, 2019. Defendant argues that the supplemental report [D.E. 87-1] is

untimely and prejudicial because Defendant is unable to take any discovery –

including a second deposition – related to Mr. Snyder’s supplemental opinions

unless discovery is reopened. Defendant also complains that the untimeliness

prevented a meaningful review of Mr. Snyder’s reports prior to the deadline for the

parties to file dispositive motions on July 26, 2019. While we agree that the

supplemental report is untimely, Defendant’s motion is unpersuasive because there

are no material differences between the two reports. The Court has independently

reviewed both reports and while there are obviously some differences, the

supplemental report includes nothing that Defendant did not already know before

the end of the discovery period. Defendant’s motion is also not compelling because,

for the reasons set forth above, Mr. Snyder may not provide an expert opinion on

the ascertainability of the proposed class. For these reasons, Defendant’s motion to

strike Mr. Snyder’s supplemental report is DENIED or otherwise DENIED as

moot.

6 On August 25, 2019, Plaintiff filed a motion to strike Defendant’s motion to

strike Mr. Snyder [D.E. 92] because, in seeking to exclude Mr. Snyder’s

supplemental expert report, Defendant failed to confer as required under the Local

Rules. We offer no opinion on whether Defendant failed to confer. But, even if

Defendant failed to do so, we exercise our discretion to consider the merits of

Defendant’s motion. As such, Plaintiff’s motion to strike is DENIED. See Royal

Bahamian Ass’n, Inc. v. QBE Ins. Corp. ., 744 F.Supp.2d 1297, 1302 (S.D. Fla. 2010)

(choosing not to deny motions based on even “egregious” and “troublesome”

violations of Local Rule 7.1 because denial would “unfairly penalize the parties, who

presumably had no involvement in their counsel's violations.”).