Lowe v. CVS Pharmacy, Inc., 1:14-cv-03687

Plaintiffs (Lowe and Kaiser) allege TCPA violations based on calls made to cellular phones without consent; consent is an affirmative defense for defendants.
Defendants' expert John Taylor analyzed six consent data sets containing ~53,364 unique patient IDs, sampled 1,000 IDs, and concluded matching consent data to call records would be a large, cumbersome process and that a full determination of consent would require extensive work.
Taylor testified his analysis was a predictor of the work needed and that a traditional "gap analysis" used in other cases "doesn't work here" because of the volume of records.
Plaintiffs' rebuttal expert Jeff Hansen performed a gap analysis aimed at determining whether consent records existed at call times and reported results in paragraphs 7–9 of his rebuttal report.
Defendants moved to strike paragraphs 7–9 as improper rebuttal testimony on the ground those paragraphs advance new opinions and results rather than rebut Taylor's opinions.
The Court evaluated whether Hansen’s discussion was limited to rebutting Taylor’s assertion that a gap analysis could not be done, versus impermissibly presenting new substantive findings about the number of calls lacking proof of consent.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Hansen's paragraphs 7–9 are proper rebuttal	Hansen rebuts Taylor's claim that a gap analysis "doesn't work here" by showing such an analysis can be performed	Hansen's paragraphs present new substantive results (number of calls lacking consent) beyond rebuttal	Court: Partial grant. Hansen may testify that a gap analysis can be performed (rebuttal), but may not present results about how many calls lack proof of consent (new opinion)
Whether plaintiffs could raise consent/results in rebuttal because consent is defendant's affirmative defense	Plaintiffs say they need not address consent in opening report and can rebut defendants' analysis in reply	Defendants argue rebuttal is limited to responding to Taylor; plaintiffs had burden on class issues and should have addressed consent earlier	Court: Rejects plaintiffs' alternative. Even if not required earlier, rebuttal cannot introduce new topics Taylor did not opine on; Hansen cannot quantify consent in rebuttal

Peals v. Terre Haute Police Dep't, 535 F.3d 621 (7th Cir. 2008) (rebuttal evidence proper to contradict or defuse adverse party's evidence)
Toney v. Quality Res., 75 F. Supp. 3d 727 (N.D. Ill.) (consent is an affirmative defense in TCPA cases)
Thrasher–Lyon v. Ill. Farmers Ins. Co., 861 F. Supp. 2d 898 (N.D. Ill.) (defendant bears burden on affirmative defenses like consent)
Messner v. Northshore Univ. HealthSystem, 669 F.3d 802 (7th Cir. 2012) (plaintiff bears the burden of proof on class certification; experts addressing class issues must be disclosed appropriately)