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Malverty v. Equifax Information Services, LLC

United States District Court, M.D. Florida, Tampa Division

October 28, 2019

MICHELE MALVERTY, as successor-in-interest of JAMES C. RENNICK, Sr., Plaintiff,
v.
EQUIFAX INFORMATION SERVICES, LLC, Defendant.

          ORDER

          JAMES D. WHITTEMORE UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are Plaintiff's motion to exclude the expert testimony of Dr. Stephanie Sarkis (Dkt. 111), and Defendant's motions to exclude the expert testimony of Evan Hendricks (Dkt. 113), Phillip Baumann (Dkt. 114), and Stephen Flatow (Dkt. 115). Upon consideration, the motion to exclude Dr. Sarkis is DENIED as moot. (Dkt. 111). The motions to exclude Hendricks and Flatow are GRANTED in part and DENIED in part. (Dkt. 113, 115). The motion to exclude Baumann is DENIED. (Dkt. 114).

         BACKGROUND

         Orders on a motion to dismiss and for summary judgment outline the facts. (Dkts. 135, 163). In short, this is an FCRA case against Equifax, a consumer reporting agency, which combined James Rennick's credit file with another individual's. That merger allegedly damaged Rennick, including the inability to obtain a home or car loan. By their respective motions, the parties seek to exclude or limit the testimony of some expert witnesses in the case.

         STANDARD

         Before expert testimony can be admitted under Rule 702, Fed. R. Evid., the proffered testimony must be screened to ensure it is relevant and reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). Expert testimony is admitted when (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusion is sufficiently reliable;[1] and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). In determining whether the proffered testimony is reliable, the circumstances of the case are considered. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150-51 (1999). The party seeking to admit expert testimony must establish its admissibility by a preponderance of the evidence. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).

         DISCUSSION

         I. Stephanie Sarkis

         Equifax retained Dr. Sarkis as a damages expert to rebut Malverty's expert, Dr. Phillip Goldstein, who opined that Malverty suffered harm as a result of Equifax's conduct. (Dkt. 119 at 1). All of Malverty's individual claims have been dismissed, and any damages she may have sustained are therefore irrelevant. Accordingly, Malverty's motion directed to Dr. Sarkis' testimony is due to be denied as moot.

         II. Evan Hendricks

         Hendricks is a consumer privacy advocate who has testified as an expert in a number of cases. (Dkt. 120-1 at 36-49). Equifax argues he should not be allowed to testify on the following matters: (1) Rennick's damages; (2) Equifax's state of mind; (3) legal opinions; (4) prior litigation; and (5) consent decrees and “Operation Busy Signal.” (Dkt. 113 at 1).

         1. Damages

         Although Hendricks acknowledges “most, if not all, of the testimony regarding [Rennick's] specific actual damages will come from fact witnesses, ” he proposes to testify about “Problems Known & Common To Victims of Chronic Credit Report Inaccuracy.” (Dkt. 120-1 at 12-13). While some courts have allowed such testimony, most have not. (Dkt. 113 at 4-5) (collecting cases); see also Valenzuela v. Equifax Info. Servs. LLC, No. CV-13-02259-PHX-DLR, 2015 WL 6811585, at *3 (D. Ariz. Nov. 6, 2015) (“Hendricks is not qualified to address physical, emotional, or economic effects of an inaccurate credit report, or to estimate the value of expended time and energy to correct errors . . . in addition to loss of time and energy, loss of opportunity.”); Anderson v. Equifax Info. Servs., LLC, No. 2:16-CV-2038-JAR, 2018 WL 1542322, at *5 (D. Kan. Mar. 29, 2018) (“[Hendricks'] opinions regarding Plaintiff's damages amount to little more than speculation as to the injuries Plaintiff incurred.”).

         I agree with the reasoning of the courts that have excluded Hendricks' testimony on damages. There is no indication that he ever met Rennick, and any opinion on whether Equifax caused Rennick emotional distress would therefore be speculative. Moreover, any opinion about the types of damages that are common to plaintiffs in comparable circumstances would not assist the jury, as it ...


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