Kelly Usanovic brought this class action suit for injunctive relief and an award of statutory damages in response to real estate brokerage firm EXP’s alleged violation of the Telephone Consumer Protection Act (“TCPA”).
Usanovic alleged that EXP directed its agents to place unsolicited calls to consumers’ telephone numbers who are registered on the National Do Not Call Registry (“NDNCR”), “including those consumers who requested for the calls to stop.”
Usanovic also submitted the expert report of Anya Verkhovskaya, who contended that there is a reliable method to identify residential telephone numbers that were on the NDNCR for 32 or more days and received two or more connected calls from or on behalf of an EXP agent within a 12-month period between May 10, 2019, through the class certification period.
However, EXP filed a motion to exclude Verkhovskaya’s expert testimony on the bases that her proposed methodology did not reliably identify (1) residential numbers on the NDNCR and (2) calls that violate the TCPA.
Class Action Expert Witness
Anya Verkhovskaya has more than two decades of experience serving as an expert witness or court-approved administrator in various class action matters, including hundreds of TCPA cases and consumer protection, employment, antitrust, securities fraud, ERISA, human and civil rights, and other class action claims.
Discussion by the Court
To begin with, EXP’s concerns about Verkhovskaya’s particular methodology are not relevant grounds on which to challenge the admissibility of her opinions.
Moreover, courts across the country have concluded that Verkhovskaya’s methodology is reliable and sufficiently capable of identifying putative class members. It is widely used in TCPA class actions, including in multiple cases against real estate brokerages arising from calls by their affiliated agents.
Finally, that Verkhovskaya’s methodology potentially resulted in errors in the proposed class list, such that some of the members of the proposed class list did not meet the class definition or are associated with the incorrect phone number, did not warrant exclusion of her testimony.
Thus, in keeping with sister courts across dozens of districts, the Court declined to exclude Verkhovskaya’s opinions on the grounds that her methodology is unreliable.
Held
The Court denied the motion to exclude the opinions of expert witness Anya Verkhovskaya.
Key Takeaway
The focus in a Daubert challenge is not primarily concerned with a proposed expert’s conclusions but with making a preliminary assessment of whether the methodology underlying the testimony is scientifically valid and of whether that methodology properly can be applied to the facts in issue.
Case Details:
| Case Caption: | Usanovic V. EXP Realty LLC |
| Docket Number: | 2:23cv687 |
| Court Name: | United States District Court, Washington Western |
| Order Date: | February 26, 2026 |
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