The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MIKE BRINKMAN,
Plaintiff,
v. Case No. 8:20-cv-2453-VMC-AAS
ARS ACCOUNT RESOLUTION
SERVICES,
Defendant.
______________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant Healthcare Revenue Recovery Group, LLC d/b/a ARS
Account Resolution Services’ Motion to Exclude Expert Reports
and Testimony of Evan Hendricks (Doc. # 53), filed on August
25, 2021. Plaintiff Mike Brinkman responded on September 8,
2021. (Doc # 68). For the reasons that follow, the Motion is
granted in part and denied in part.
I. Background
In this action, Brinkman asserts claims for violations
of the Fair Credit Reporting Act (FCRA), the Fair Debt
Collection Practices Act (FDCPA), and the Florida Consumer
Collection Practices Act (FCCPA) against ARS Account
Resolution Services. (Doc. # 46). Among other things,
Brinkman alleges ARS Account Resolution Services, which
furnished information about Brinkman to credit reporting
agencies, violated the FCRA “by failing to fully and properly
investigate [Brinkman’s] dispute of [ARS Account Resolution
Services]’ representation [about Brinkman’s alleged debt]; by
failing to review all relevant information regarding same; by
failing to accurately respond to Equifax; by failing to
correctly report results of an accurate investigation to
every other credit reporting agency; and by failing to
permanently and lawfully correct its own internal records to
prevent the re-reporting of [ARS Account Resolution
Services’] representations to the consumer reporting
agencies.” (Id. at 8).
Brinkman has hired an expert, Evan Hendricks, in support
of his claims. “Since 1981, [Hendricks has] been
Editor/Publisher of Privacy Times, a biweekly, Washington-
based newsletter that reports on privacy and information law,
including the [FCRA].” (Doc. # 53-1 at 30). Hendricks has
“researched, written, edited and published many articles on
Congressional and State legislative actions, judicial
opinions, industry trends and actions, executive branch
policies and consumer news as they related to the FCRA.”
(Id.). He is also the author of a book on credit scoring and
reporting. (Id.).
“Since the early 1990s, [Hendricks has] served as an
expert witness in numerous FCRA cases and [has] been qualified
by the federal courts.” (Id.). “As an expert witness, [he
has] had the opportunity to read thousands of pages of
deposition testimony by consumer reporting agency officials
and by credit grantor personnel responsible for reporting
data to [credit reporting agencies (CRAs)]. This is
significant because CRAs and credit grantors do not openly
discuss or publish information on their procedures and
practices for handling personal data.” (Id.). In addition,
Hendricks has “testified numerous times before Congress –
always by invitation – on issues related to the collection,
maintenance, security, use and disclosure of sensitive
personal data, including credit reports and other financial
information.” (Id. at 31).
In his report, Hendricks opines, among other things,
that “[e]ven though [Brinkman] disputed the inaccurate [ARS
Account Resolution Services] collection account, [ARS Account
Resolution Services] failed to adequately investigate the
disputed information and failed to instruct [CRAs] to delete
it from [Brinkman’s] credit bureau files.” (Doc. # 53-1 at
2). “An adequate investigation in a case like [Brinkman’s]
requires at least some sort of close examination or systematic
inquiry entailing some types of reasonable investigative
steps. But [ARS Account Resolution Services] never closely
examined or systematically inquired into the disputed,
inaccurate information, and never took the necessary
reasonably investigative steps in relation to [Brinkman’s]
disputes.” (Id.).
“[ARS Account Resolution Services], as a matter of its
policy/practice and/or procedure (‘PPP’), did not contact
Inphynet [the original creditor] to investigate [Brinkman’s]
[Automated Consumer Dispute Verification (‘ACDV’)] disputes.
Instead, it merely did a superficial check of its system of
record, and matched the identifiers on the ACDV to its system,
and ‘confirmed’ the inaccurate balance.” (Id. at 3). Thus,
Hendricks asserts, ARS Account Resolution Services “caused
the inaccuracies in [Brinkman’s] credit reports and then
failed to correct them when they were disputed. This caused
foreseeable problems for [Brinkman],” including harm to
Brinkman’s creditworthiness. (Id. at 4).
Now, ARS Account Resolution Services seeks to exclude
Hendricks’ opinions and testimony. (Doc. # 53). Brinkman has
responded (Doc. # 68), and the Motion is ripe for review.
II. Discussion
Federal Rule of Evidence 702 states:
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.
Implementing Rule 702, Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579 (1993), requires district courts to ensure
that any and all scientific testimony or evidence admitted is
both relevant and reliable. See Id. at 589–90. The Daubert
analysis also applies to non-scientific expert testimony.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
District courts must conduct this gatekeeping function “to
ensure that speculative, unreliable expert testimony does not
reach the jury under the mantle of reliability that
accompanies the appellation ‘expert testimony.’” Rink v.
Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005).
The Eleventh Circuit “requires trial courts acting as
gatekeepers to engage in a ‘rigorous three-part inquiry.’”
Hendrix v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir. 2010).
The district court must assess whether:
(1) the expert is qualified to testify competently
regarding the matters he intends to address; (2)
the methodology by which the expert reaches his
conclusions is sufficiently reliable as determined
by the sort of inquiry mandated in Daubert; 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.
Id. The proponent of the expert testimony bears the burden of
showing, by a preponderance of the evidence, that the
testimony satisfies each of these requirements. Id.
ARS Account Resolution Services challenges the
reliability and helpfulness of Hendricks’ expert testimony.1
1 ARS Account Resolution Services does not clearly challenge
Hendricks’ qualifications in its Motion. See (Doc. # 53 at
16) (arguing only that Hendricks’ opinions are “not reliable
or helpful”). To the extent the Motion can be liberally
construed as attacking his qualifications, the Court rejects
this argument. See, e.g., Williams v. First Advantage LNS
Screening Sols. Inc, No. 1:13CV222-MW/GRJ, 2015 WL 9690018,
at *2 (N.D. Fla. Mar. 31, 2015) (“In short, this Court finds,
as many other courts have, that Mr. Hendricks’ experience
qualifies him as an expert on consumer reports, the accuracy
of data reporting and industry standards pertaining to FCRA
compliance.”); Brown v. Vivint Solar, Inc., No. 8:18-cv-2838-
SCB-JSS, 2020 WL 1479079, at *2 (M.D. Fla. Mar. 26, 2020)
(“The Court agrees with Plaintiffs that to the extent that
Hendricks opines regarding the industry standards for
preventing privacy invasions, as well as comparing
Defendants’ conduct to industry standards, such is within his
experience and expertise, such that he is qualified to render
such opinions.”).
1. Reliability
“Exactly how reliability is evaluated may vary from case
to case, but what remains constant is the requirement that
the trial judge evaluate the reliability of the testimony
before allowing its admission at trial.” United States v.
Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004)(citing Fed. R.
Evid. 702, Advisory Committee Notes (2000)). There are four
recognized, yet non-exhaustive, factors a district court may
consider in evaluating reliability:
(1) whether the expert’s methodology has been
tested or is capable of being tested; (2) whether
the technique has been subjected to peer review and
publication; (3) the known and potential error rate
of the methodology; and (4) whether the technique
has been generally accepted in the proper
scientific community.
Seamon v. Remington Arms Co., 813 F.3d 983, 988 (11th Cir.
2016)(citations omitted). A district court can take other
relevant factors into account as well. Id. (citations
omitted).
“If the [expert] witness is relying solely or primarily
on experience, then,” in establishing reliability, “the
witness must explain how that experience leads to the
conclusion reached, why that experience is a sufficient basis
for the opinion, and how that experience is reliably applied
to the facts.” Frazier, 387 F.3d at 1261 (citation and
internal quotation marks omitted). The Court’s analysis as to
reliability “focus[es] ‘solely on principles and methodology,
not on the conclusions that they generate.’” Seamon, 813 F.3d
at 988 (citation omitted).
ARS Account Resolution Services argues that Hendricks
lacks a reliable methodology as his opinions “are not properly
grounded or well-reasoned.” (Doc. # 53 at 15). Specifically,
it contends that Hendricks “fails to explain how his
experience leads to the conclusion he reached that [ARS
Account Resolution Services] did not conduct an ‘adequate’
investigation, why his experience is a sufficient basis for
that opinion, and how his experience is reliably applied to
the facts.” (Id. at 16). It characterizes Hendricks’ opinions
as insupportable speculation or conjecture because “neither
he nor anyone else could possibly know that if [ARS Account
Resolution Services] had investigated [Brinkman’s] automated
disputes differently, [ARS Account Resolution Services]
‘would have’ figured out that Inphynet was incorrectly
designated as an out-of-network provider with [Brinkman’s]
health insurer.” (Id. at 17, 19).
The Court disagrees with ARS Account Resolution
Services. “Given Hendricks’s extensive experience in [the
credit reporting industry] and the nature of his testimony,
which is based on his observations of issues with [credit
reporting] procedures over several decades, the Court finds
that his proposed testimony is sufficiently reliable to pass
scrutiny under Rule 702.” Anderson v. Equifax Info. Servs.,
LLC, No. 2:16-cv-2038-JAR, 2018 WL 1542322, at *4 (D. Kan.
Mar. 29, 2018); see also Ma v. Equifax Info. Servs., LLC, 288
F. Supp. 3d 1360, 1366–67 (N.D. Ga. 2017) (“Mr. Hendricks has
accumulated a wealth of personal knowledge and experience in
consumer credit reporting agency practices. Therefore, the
Court finds that Mr. Hendricks’s methods are sufficiently
reliable, and that Defendant’s objections go more towards the
weight of Mr. Hendricks’s testimony than to its
admissibility.”). Indeed, Hendricks’ methodology of analyzing
a data furnisher’s policies and actions by comparing them to
standard industry practices is reliable, so long as he is
able to explain the basis for his knowledge of industry
standards. See Valenzuela v. Equifax Info. Servs. LLC, No.
cv-13-02259-PHX-DLR, 2015 WL 6811585, at *2 (D. Ariz. Nov. 6,
2015) (noting that Hendricks’ “method is simply an
application of his experience with and understanding of the
FCRA and the credit reporting industry to the facts at hand”
and finding that, “[a]lthough his methods are not
meticulously detailed for every conclusion, they can be
understood and are reliable”); Malverty v. Equifax Info.
Servs., LLC, No. 8:17-cv-1617-JDW-AEP, 2019 WL 5549146, at *2
(M.D. Fla. Oct. 28, 2019) (“Hendricks is allowed to testify
about what additional measures Equifax could have taken to
ensure the accuracy of Rennick’s consumer report, both prior
to and following the disputes. This could include
whether Equifax’s ‘procedures match industry standards if he
dissects the basis for his knowledge of industry standards,
explains how he applied his experience to the facts and how
such application yields his opinion.’” (citation omitted)).
Any alleged flaws in Hendricks’ methodology should be
addressed during cross-examination. See Maiz v. Virani, 253
F.3d 641, 666 (11th Cir. 2001) (“Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means
of attacking [debatable] but admissible evidence.” (citations
and internal quotation marks omitted)). Thus, the Motion is
denied as to reliability.
2. Assistance to Trier of Fact
Expert testimony must also assist the trier of fact.
Fed. R. Evid. 702. “By this requirement, expert testimony is
admissible if it concerns matters that are beyond the
understanding of the average lay person.” Frazier, 387 F.3d
at 1262 (citation omitted). “[T]he court must ‘ensure that
the proposed expert testimony is “relevant to the task at
hand,” . . . i.e., that it logically advances a material
aspect of the proposing party’s case.’” Allison v. McGhan,
184 F.3d 1300, 1312 (11th Cir. 1999) (citation omitted).
So, while “[t]he ‘basic standard of relevance . . . is
a liberal one,’ Daubert, 509 U.S. at 587, . . .[,] if an
expert opinion does not have a ‘valid scientific connection
to the pertinent inquiry[,]’ it should be excluded because
there is no ‘fit.’” Boca Raton Cmty. Hosp., Inc. v. Tenet
Health Care Corp., 582 F.3d 1227, 1232 (11th Cir.
2009)(citations omitted). “Proffered expert testimony
generally will not help the trier of fact when it offers
nothing more than what lawyers for the parties can argue in
closing arguments.” Frazier, 387 F.3d at 1262-63 (citation
omitted).
ARS Account Resolution Services argues that the issues
on which Hendricks’ opines “are not beyond the understanding
of the average layperson so the opinions will not assist the
trier of fact.” (Doc. # 53 at 15). Additionally, ARS Account
Resolution Services insists that some of Hendricks’ opinions,
specifically his opinion that ARS Account Resolution
Services’ investigation was not “reasonable,” is an
impermissible legal conclusion. (Doc. # 53 at 20-21).
Likewise, it asserts that “the FCRA sets forth the damages
that are recoverable for either negligent or willful conduct,
as decided by the jury.” (Id. at 21). Thus, it reasons,
Hendricks should not be permitted to testify as to the “‘harm’
of inaccurate information remaining on his credit profile,”
which is not recognized under the FCRA. (Id.).
Regarding legal conclusions and types of available
damages, the Court agrees with ARS Account Resolution
Services. “No witness may offer legal conclusions or testify
to the legal implications of conduct.” Dudash v. S.-Owners
Ins. Co., No. 8:16-cv-290-JDM-AEP, 2017 WL 1969671, at *2
(M.D. Fla. May 12, 2017). Hendricks may not testify as to
whether ARS Account Resolution Services’ investigation was
“accurate” or provide any other legal conclusion. See
Malverty, 2019 WL 5549146, at *3 (holding that Hendricks may
not “testify about whether Equifax’s existing procedures or
conduct were unreasonable, reckless, inadequate, or offer any
other legal conclusion”); Anderson, 2018 WL 1542322, at *6
(“Hendricks may reference FCRA and industry standards in
testifying about the credit reporting industry, Defendant’s
conduct, and perceived issues with Defendant’s processes and
procedures. But in doing so, Hendricks must avoid expressing
ultimate legal conclusions regarding the reasonableness of
Defendant’s procedures for ensuring maximum possible accuracy
and conducting reinvestigations of credit report disputes.”).
Nor may Hendricks testify about the damages Brinkman has
incurred. See Malverty, 2019 WL 5549146, at *2 (“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 will be instructed on the proper measure of
damages.”).
But the rest of Hendricks’ testimony will be helpful to
the jury. “[U]nderstanding the inner workings of the credit
reporting industry may require some specialized knowledge.
And [] Hendricks’s unique and specialized knowledge regarding
credit reporting [] practices may help the jury contextualize
and make sense of complicated information.” Ma, 288 F. Supp.
3d at 1367; see also Anderson, 2018 WL 1542322, at *4 (“A
layperson is likely not to have this detailed knowledge, and
the Court finds that Hendricks’s testimony regarding the
nature of credit reports, FCRA standards, mixed files, and
Defendant’s ‘inner workings’ would be helpful to the trier of
fact in understanding both credit industry standards and
Defendant’s policies and procedures regarding mixed files.”).
Thus, the Motion is granted in part and denied in part.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
Defendant Healthcare Revenue Recovery Group, LLC d/b/a
ARS Account Resolution Services’ Motion to Exclude Expert
Reports and Testimony of Evan Hendricks (Doc. # 53) is GRANTED
in part and DENIED in part. Hendricks may not testify as to
damages or offer legal conclusions. The Motion is denied in
all other respects.
DONE and ORDERED in Chambers in Tampa, Florida, this
23rd day of September, 2021.
VIR IA M. HERNANDEZ’COVINGTON
UNITED STATES DISTRICT JUDGE
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