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Indich v. Equifax Information Services, Inc.

United States District Court, D. Colorado

October 30, 2017

ERWIN INDICH, Plaintiff,



         On October 18, 2017, the Court heard argument on Defendant's Motion to Exclude the Testimony of Plaintiff's Expert, Evan Hendricks [filed July 14, 2017; ECF No. 127], which was referred to the Court by the Honorable Raymond P. Moore for a report and recommendation. At the hearing, the Court imparted its recommendation that the motion be granted in part and denied in part, but reserved portions of its findings pending receipt of a “status report” filed by the Defendant on October 20, 2017. The Court is now fully advised and makes the following findings and recommendations.

         I. Background

         Defendant Equifax Information Services, Inc. is a consumer reporting agency that sells consumer reports, including background checks, to various third parties for a profit. Plaintiff Erwin Indich alleges the Defendant improperly “mixed” his credit file and/or consumer reports with another consumer, Edwin William Tinoco, then sold consumer reports about the Plaintiff which falsely stated that he was Mr. Tinoco and included accounts that did not belong to him. Plaintiff claims that Defendant, by its conduct, negligently and willfully violated the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”).

         At the close of discovery, Defendant filed the present motion seeking an order precluding Plaintiff's purported expert, Evan Hendricks (“Hendricks”), from proffering expert testimony at trial. Defendant contends that Hendricks is not qualified to opine as to many portions in his original report, particularly as to Plaintiff's damages, and that Hendricks' opinions are not reliable under prevailing law. Plaintiff counters that Hendricks has been repeatedly approved to testify at trial concerning the history and mechanics of the credit reporting industry, and that Hendricks' knowledge of identity theft and its impact on credit reporting procedures would be important for a jury to hear. Further, Plaintiff asserts that Hendricks should be permitted to testify regarding judgments against Equifax in prior cases, and his background and experience are sufficient to support his opinion that Plaintiff's economic and non-economic damages are similar to those suffered by other plaintiffs.

         II. Legal Standards

Pursuant to Federal Rule of Evidence 702,
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an expert be qualified based upon knowledge, skill, experience, training, or education to give opinions in a particular subject area. Rather, the Court must “perform[ ] a two-step analysis.” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). After “determin[ing] whether the expert is qualified by ‘knowledge, skill, experience, training, or education' to render an opinion, ” id. (quoting Fed.R.Evid. 702), the specific proffered opinions must be assessed for reliability. See id.; Fed. R. Evid. 702 (requiring that the testimony be “based upon sufficient facts or data, ” be the “product of reliable principles and methods, ” and reflect a reliable application of “the principles and methods ... to the facts of the case”).

         Rule 702 “imposes on the district court a gatekeeper function to ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'” United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). To execute that function, the Court must “assess the reasoning and methodology underlying the expert's opinion, and determine whether it is both scientifically valid and applicable to a particular set of facts.” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (citing Daubert, 509 U.S. at 592-93).

         The Supreme Court has also concluded that the court's gatekeeping functions espoused in Daubert must be applied to all experts, not just those purporting to offer “scientific” testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (“the Rule applies its reliability standard to all ‘scientific, ' ‘technical, ' or ‘other specialized' matters within its scope.”). The important inquiry is whether the expert offers relevant, reliable testimony from the expert's knowledge and experience. See Id. The standard for that determination is whether the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152. This standard applies whether the expert is basing his or her testimony on professional studies or personal experience. Id. “[T]he trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Id.

         While Plaintiff, as the proponent of the challenged testimony, has the burden of establishing admissibility, his proffer is tested against the standard of reliability, not correctness; Plaintiff need only prove that “the witness has sufficient expertise to choose and apply a methodology, that the methodology applied was reliable, that sufficient facts and data as required by the methodology were used and that the methodology was otherwise reliably applied.” United States v. Crabbe, 556 F.Supp.2d 1217, 1221 (D. Colo. 2008).

         III. Analysis

         Following a thorough examination of Hendricks by the parties (and the Court) at the hearing, this Court determined that he is qualified[1] to render opinions concerning the history[2] and background of the credit reporting industry and the typical policies and procedures of credit reporting agencies. With his qualifications, Hendricks is also qualified to opine as to ...

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