Extenet Presses Case to Exclude City’s Telecom Chief as Expert Witness

Rochester, New York, “fails to rebut the points raised” in Extenet’s motion in limine to preclude expert testimony from Louie Tobias, the city’s director-telecommunications and special projects, said Extenet’s reply Friday (docket 6:20-cv-07129) to the city’s opposition (see 2303200004) in U.S. District Court for Western New York. A consolidated bench trial is scheduled to begin June 1 on challenges to Rochester’s wireless deployment fees brought by Extenet, Crown Castle and Verizon, saying the fees significantly exceed a reasonable approximation of the city’s actual costs of maintaining the rights-of-way (ROW) used or occupied by telecom service providers.

It’s not clear Rochester disagrees with Extenet about “the limits of lay versus expert testimony,” said Extenet’s reply. Extenet acknowledges Tobias can testify “on factual, lay matters” about the city’s fees, it said. But it’s clear, “or at least clearly anticipated,” that his testimony “will go beyond such facts and involve complex cost allocations that require specialized knowledge and skill and are beyond the knowledge of the average person,” it said. Verizon (docket 6:19-cv-06583) and Crown Castle (docket 6:20-cv-06866) also filed coordinated replies Friday in support of barring Tobias' cost spreadsheet from evidence as inadmissible hearsay and precluding his testimony as an expert witness.

The task of assigning to telecommunications facilities “a specific percentage allocation out of hundreds of millions of dollars” of apparently unrelated city capital costs, “and asserting that those allocations are reasonable, is not within the capability of the average person,” said Extenet. Yet in Rochester’s opposition to Verizon’s motion in limine to exclude Tobias’ spreadsheet on hearsay grounds, the city argues the spreadsheet is admissible precisely because of Tobias’ “alleged specialized knowledge and experience,” it said.

Extenet doesn’t agree or concede Tobias “has the necessary qualifications” to be deemed an expert witness, said its reply. Yet the testimony he’s anticipated to introduce “requires that it come only from a witness who is qualified as an expert,” it said. The court should therefore grant Extenet’s motion “to the extent necessary” to bar Tobias from offering expert testimony, including testimony about the reasonableness of the city’s costs, cost allocations or fees, “or regarding the appropriate allocation of costs,” it said.

Rochester argues Tobias’ testimony, even his opinion about the reasonableness of the cost allocations, “is permissible as lay testimony because it would not rely solely on his specialized and technical knowledge” as the city’s telecommunications director, said Extenet’s reply. But those arguments fail because of the conflict between the city’s attempt to characterize Tobias “as merely collecting, summarizing, and formatting data” from city departments, and the “reality” of what Tobias did “and will presumably testify to,” it said.

Contrary to Rochester’s characterization, “the average person in everyday life does not have the expertise or experience necessary to determine that the existence of telecommunications facilities was responsible for very specific percentages of hundreds of millions of dollars of unrelated costs,” said Extenet’s reply. The average person “is unqualified to opine on,” for example, whether the allocation of 0.75% of a $350 million dollar capital budget is reasonable, much less conservative, it said.