David Elliot filed a lawsuit against Humana, claiming the company violated the Telephone Consumer Protection Act (TCPA) by repeatedly calling him with robocalls even though he wasn’t a customer and had informed them they had the wrong number. Elliot wants to pursue this as a class action, arguing that many others have experienced similar unwanted robocalls from Humana over a four-year period.
To support his request for class certification, Elliot offered expert testimony from Anya Verkhovskaya, who believes Humana’s data allows for a reliable and efficient way to identify and notify potential class members, meeting Fed. R. Civ. P. 23 and due process. Humana countered with their own expert, Margaret Daley, who argues that Verkhovskaya’s method for identifying class members who received prerecorded messages as non-customers is unreliable and that individualized investigations would be necessary. Daley also challenges the reliability of Verkhovskaya’s reverse-append methodology, claiming it does not reliably identify people who should receive notice.
Daley was admitted to opine on “whether there is a reliable way to determine on a class wide basis whether Humana non-members received prerecorded messages.”
Data Privacy Expert Witness
Margaret Daley is the Vice President at Charles River Associates (“CRA”) and a member of its Forensics Services practice group. Daley has specialized experience in TCPA compliance, and digital forensic investigations. She has also authored three publications on TCPA compliance and wrong number issues.
Daley has significant experience providing expert testimony, litigation and regulatory support, and data analytics to law firms, Fortune 500 corporations, government agencies, and various regulatory bodies.
She is is a Certified Information Privacy Professional (CIPP), a Certified Fraud Examiner (CFE) and a licensed attorney in the state of Illinois.
Discussion by the Court
Qualifications
Daley possesses ample experience in TCPA compliance, wrong number issues, and the reverse-append procedure proposed by Verkhovskaya. Consequently, her expert opinions will be helpful for the Court. Furthermore, other district courts have recognized Daley’s qualifications to testify on similar matters. Her education, certifications, and extensive experience demonstrate relevant training in the areas she has provided opinions on. Therefore, this Court finds Daley qualified by both training and experience to offer expert testimony on class action notice and TCPA claim issues, and Elliot’s opposing arguments are not persuasive.
Reliability
Elliot challenged Daley’s expert opinion, claiming it was based on “unsupported speculation” and a lack of factual knowledge. Humana countered that Daley had access to the same information as Elliot’s expert, Verkhovskaya, including her report, and even conducted her own analysis of that data. Humana emphasized that Daley’s opinion critiques Verkhovskaya’s methodology for identifying and notifying the class, drawing upon Daley’s experience in related fields. Because Daley relied on the same information provided by Humana’s records as Verkhovskaya, Humana argued that experts are permitted to base opinions on data provided by counsel and that a challenge to Daley’s factual basis is essentially a challenge to the already-deemed-reliable report of Verkhovskaya. Moreover, Humana pointed out that Daley went beyond what was required by testing aspects of Verkhovskaya’s methodology to ensure her own opinion’s reliability.
Humana concluded that Daley’s opinion is sound both factually and methodologically. Finally, the Court asserted that Elliot’s objections regarding Daley’s reliability primarily concern the weight of her testimony, not its admissibility, especially since they target the foundation of her opinion – Verkhovskaya’s own report and data. Humana reminded the Court that Elliot will have the opportunity to cross-examine Daley at trial.
Relevance
Elliot challenged the relevance of Daley’s opinion on two grounds. First, he argued that Daley misinterpreted the notice procedure of Federal Rule of Civil Procedure 23. Second, Elliot claimed that Daley misrepresented Verkhovskaya’s testimony.
In defining the proper scope of rebuttal testimony, courts have held that rebuttal evidence “identifies a flawed premise in an expert report that casts doubt on both that report’s conclusions and its author’s expertise.” The Court determined that Daley’s opinions are relevant because they point out potential weaknesses in Verkhovskaya’s analysis that are important for deciding key aspects of class certification under Federal Rule of Civil Procedure 23, specifically numerosity, typicality, ascertainability, and whether common questions predominate for class certification.
Daley claimed Verkhovskaya’s opinion is irrelevant because it will misidentify and notice some non-class members
According to Elliot, Daley claimed Verkhovskaya’s opinion is irrelevant because it will misidentify and notice some non-class members because of a “lack of knowledge of the standards for class notice,” which renders Daley’s opinion irrelevant as she does not know the standard.
This argument fails for two main reasons. First, the claim that Daley lacks knowledge of class notice standards is essentially an attack on her qualifications, which the Court has already affirmed. Second, Elliot misinterprets Daley’s point. Daley’s argument isn’t simply about some non-class members being noticed improperly; she contends that identifying class members is impossible without individualized investigation, a fundamental flaw in the proposed process and relevant to a question that must be answered at this stage of the case.
Daley misrepresents Verkhovskaya’ methodology as “a one item, reverse append, review”
Elliot also argues that Daley mischaracterizes Verkhovskaya’s methodology as simply “a one item, reverse append, review,” but this is not supported by the evidence. Daley’s opinion considers Verkhovskaya’s entire analysis, focusing on the reverse append review because she believes this key component is unreliable for identifying class members. Daley simply dedicates more attention to the aspect of Verkhovskaya’s methodology she finds most problematic.
Furthermore, Elliot suggests Daley’s opinion is irrelevant because it was developed solely for this lawsuit, not from her regular technical work. While courts may scrutinize such opinions more closely, Elliot provides no specific examples or evidence to support this claim about Daley or her testimony, nor does he explain why this would make her opinion inadmissible. Because Elliot offers only a bare assertion without developed argumentation or record citations, the Court does not need to consider this point, as perfunctory arguments are deemed waived. Elliot retains the right to question Daley about her reliability and the development of her opinion during cross-examination at trial.
Held
The Court denied David Elliot’s motion to exclude Margaret Daley’s testimony.
Key Takeaway:
Despite Elliot’s challenges arguing that Daley was not qualified, relied on speculation, and misrepresented the opposing expert’s methodology and lacked knowledge of the standards for class notice, the Court upheld Daley’s expertise, noting her extensive experience and the fact that her opinions identified potential flaws in Elliot’s expert’s methodology that are pertinent to the key requirements for class certification under Rule 23. The Court also dismissed Elliot’s argument that Daley’s opinion was solely litigation-driven due to lack of supporting evidence, emphasizing that these concerns could be addressed through cross-examination at trial.
Case Details:
| Case Caption: | Elliot V. Humana, Inc. |
| Docket Number: | 3:22cv329 |
| Court: | United States District Court, Kentucky Western |
| Order Date: | March 28, 2025 |
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