United States District Court, M.D. Florida, Tampa Division
MICHELE MALVERTY, as successor-in-interest of JAMES C. RENNICK, Sr., Plaintiff,
EQUIFAX INFORMATION SERVICES, LLC, Defendant.
D. WHITTEMORE UNITED STATES DISTRICT JUDGE
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).
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.
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; 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).
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
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
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.”).
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 ...