Judge Sara L. Ellis denied a motion brought by Plaintiff’s attorneys (DiCello Levitt & Casey LLC) to certify two Rule 23(b)(3) classes under the Telephone Consumer Protection Act for calling their telephones using an automatic telephone dialing system (“ATDS”) without their express consent. The court found that Plaintiff did not satisfy his burden of establishing that common issues of fact or law predominate.
The court reminds us of the import of Rule 26: Citi attempted to attach a previously undisclosed expert declaration to its motion to strike Plaintiff’s expert reports. The court found that was procedurally improper because Citi submitted it after the close of expert discovery and further, Citi did not move to extend the deadline or for permission to submit a sur-rebuttal.
Regarding expert testimony, Rule 26 provides that “[a] party must make disclosures at the times and in the sequence that the court orders.” Fed R. Civ. Pro. 26(a)(2)(D). Unless Citi can show that the failure to provide Taylor’s report in a timely manner was justified or harmless, the Court should exclude it. Finwall v. City of Chicago, 239 F.R.D. 494, 500 (N.D. Ill. 2006)(citing Keach v. U.S. Trust Co., 419 F.3d 626, 639 (7th Cir. 2005)).
However, Plaintiff’s expert report is still stricken because they did not inspect Citi’s ATDS system itself:
it is Tomeo’s burden to demonstrate that his expert reports and testimony are admissible, and he has not provided that support. Just as in Legg, Hansen cannot even credibly state that Citi’s equipment conforms to the specifications discussed in the manual. Because the Court finds that Tomeo has not shown that Hansen’s opinions regarding Citi’s dialers are based on sufficient facts and data, the Court excludes the portions of Hansen’s reports that make findings regarding the function of Citi’s dialers.
As to class certification generally, the court said that there would need to be too many individualized inquiries as to whether there was a wrong number or consent given for the calls.
Simply put, neither Tomeo nor his experts adequately identify a common way to address the individual variations of consent and revocation that occurred in this case … And in the cases where the Seventh Circuit held that class certification could be appropriate even though causation or damages required individual proof, the issues requiring individual proof did not directly affect whether the defendant was liable for some violation of the law. See, e.g., McMahon v. LVNV Funding, LLC,807 F.3d 872, 875 (7th Cir. 2015) (finding that the predominate issue was whether the defendant’s actions violated the FDCPA, not whether that violation damages the class members); Pella Corp. v. Saltzman, 606 F.3d 391, 394 (7th Cir. 2010)(holding that the central question in the case was whether the product at issue was defective when it left the factory, not whether that defect proximately caused the class members’ damages). The individualized issues in those cases could be separated from the primary issue of liability. Here, on the other hand, consent is inextricably intertwined with primary issue of liability to the point where it predominates over the other common issues in the case.