LITTLEJOHN v. VIVINT SOLAR

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DOUGLAS LITTLEJOHN, 1:16-cv-9446-NLH-JS

Plaintiff, OPINION

v.

VIVINT SOLAR,

Defendant.

APPEARANCES:

ANDREW M. MILZ

FLITTER MILZ, P.C.

1814 EAST ROUTE 70

SUITE 350

CHERRY HILL, NEW JERSEY 08003

CARY L. FLITTER

FLITTER MILZ, P.C.

1814 EAST ROUTE 70

SUITE 350

CHERRY HILL, NEW JERSEY 08003

JODY THOMAS LOPEZ-JACOBS

FLITTER MILZ, P.C.

1814 EAST ROUTE 70

SUITE 350

CHERRY HILL, NEW JERSEY 08003

Attorneys for Plaintiff.

DANIEL J.T. MCKENNA

BALLARD SPAHR LLP

210 LAKE DRIVE EAST

SUITE 200

CHERRY HILL, NEW JERSEY 08002-1163

JENNY NICOLE PERKINS

BALLARD SPAHR LLP

1735 MARKET STREET

51ST FLOOR

PHILADELPHIA, PENNSYLVANIA 19103

WILLIAM PATRICK REILEY

BALLARD SPAHR LLP

210 LAKE DRIVE EAST

SUITE 200

CHERRY HILL, NEW JERSEY 08002

Attorneys for Defendant.

HILLMAN, District Judge

This Fair Credit Reporting Act (“FCRA”) matter comes before

the Court on Defendant Vivint Solar’s (“Defendant”) motion to

preclude the expert testimony of Plaintiff Douglas Littlejohn’s

(“Plaintiff”) putative expert, Evan Hendricks (“Hendricks”) (ECF

No. 76). For the reasons that follow, Defendant’s motion will

be granted in part and denied in part.

BACKGROUND

The parties are keenly aware of the facts at issue in this

action and the Court recently discussed them at length in

deciding Defendant’s motion for summary judgment and repeats

here only those necessary to resolve this motion.

Defendant sells solar panels and, through its salesman

Phillip R. Chamberlain (“Chamberlain”), approached Plaintiff

about purchasing a solar panel system. According to Plaintiff,

Chamberlain approached Plaintiff’s home and the two had a brief,

thirty-second conversation through Plaintiff’s partially opened

front door. Plaintiff explained he was busy, was unable to talk

further, and informed Chamberlain he could leave additional

information in Plaintiff’s mailbox. After this brief, otherwise

unremarkable exchange, Chamberlain allegedly forged a form with

Plaintiff’s signature suggesting he was seeking extension of

credit. Defendant relied upon that forged authorization to

conduct a hard credit inquiry into Plaintiff’s credit

worthiness. Plaintiff alleges this credit inquiry occurred

without a permissible purpose under the FCRA. As a result of

Defendant’s unauthorized credit inquiry, Plaintiff alleges he

suffered emotional distress that included sleepless nights and

increased blood pressure.1

Plaintiff intends to rely upon Hendricks’ expert opinions

in furtherance of his case. Hendricks has submitted an expert

report pursuant to Rule 26(a)(2) of the Federal Rules of Civil

Procedure. (ECF No. 81-1). Based upon the contents of that

report, it appears Plaintiff intends to call Hendricks to

provide expert testimony (1) regarding the FCRA and consumer

privacy generally, (2) as to whether Defendant’s actions

complied with the FCRA, (3) whether Defendant exhibited behavior

in reckless disregard for consumer privacy and safety, (4) the

harm generally caused by unauthorized credit inquires, and (5)

1 Defendant disputes Plaintiff’s version of the events at issue

and contends Plaintiff has suffered no actual harm.

the damages that Plaintiff could be expected to suffer as a

result of Defendant’s actions. Defendant moves to exclude

Hendricks’ testimony, arguing that Hendricks’ opinions do not

satisfy Federal Rule of Evidence 702 and the standards set forth

in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,

597, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Defendant’s

motion has been fully briefed as is ripe for adjudication.

DISCUSSION

I. Subject Matter Jurisdiction

This Court exercises subject matter jurisdiction pursuant

to 28 U.S.C. § 1331.

II. Legal Standard

The admissibility of expert testimony is governed by Federal

Rule of Evidence 702 and Daubert, 509 U.S. at 579, 113 S. Ct. at

2786, 125 L. Ed. 2d at 469. Rule 702 provides:

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. The Third Circuit has described the

requirements of Federal Rule of Evidence 702 as a “trilogy of

restrictions on expert testimony: qualification, reliability and

fit.” Calhoun v. Yamaha Motor Corp., 350 F.3d 316, 321 (3d Cir.

2003) (quoting Schneider ex rel. Estate of Schneider v. Fried,

320 F.3d 396, 405 (3d Cir. 2003)). “[T]he district court acts

as a gatekeeper, preventing opinion testimony that does not meet

the requirements of qualification, reliability and fit from

reaching the jury.” Schneider, 320 F.3d at 404. “The party

offering the expert testimony bears the burden of establishing

the existence of each factor by a preponderance of the

evidence.” Raritan Baykeeper, Inc. v. NL Indus., No. 09-4117,

2017 WL 3568401, at *2 (D.N.J. Aug. 16, 2017).

III. Defendant’s Motion

Defendant argues that Hendricks’ testimony must be excluded

because (1) Hendricks is not qualified to testify regarding

Defendant’s “lack of concern” for consumer privacy, (2)

Hendricks is not qualified to testify regarding Plaintiff’s

damages or damages in general, (3) Hendricks lacks a sound

methodology for his opinions, and (4) Hendricks’ opinions do

nothing more than recite law and fact, and therefore, will not

assist a jury.

A. Hendricks Is Qualified To Testify About Privacy

Procedures and Policies

Before an expert witness may offer an opinion pursuant to

Rule 702, he must first be qualified by virtue of specialized

expertise. Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir.

2000) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741

(3d Cir. 1994)). Rule 702 requires the witness to have

“specialized knowledge” regarding the area of testimony. Id.

(quoting Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998)).

The basis of this specialized knowledge “can be practical

experience as well as academic training and credentials.” Id.

(quoting Waldorf, 142 F.3d at 625). The Third Circuit has

interpreted the specialized knowledge requirement liberally.

Id. (quoting Waldorf, 142 F.3d at 625). A proffered expert

witness must possess skill or knowledge greater than the average

layman. Id. (quoting Waldorf, 142 F.3d at 625).

Defendant argues that Hendricks’ only qualifications for

testifying about Defendant’s privacy policies and procedures

flows from his role as a consumer advocate and prior testifying

expert. Defendant views Hendricks’ relevant experience in this

area too narrowly. Hendricks’ curriculum vitae reveals he

consulted for the United State Social Security Administration on

privacy issues, policies, and practices between 1998 and 2006.

(ECF No. 81-1 at 19). Similarly, Hendricks consulted with the

United States Postal Service on privacy issues, including by

reviewing and editing privacy notices, between July 2002 and

October 2002. (ECF No. 81-1 at 19). Additionally, Hendricks

has testified before various committees of the United States

House of Representatives and United States Senate about credit

scores, credit reports, the FCRA, and data privacy. (ECF No.

81-1 at 20).

Based upon these collective experiences, Hendricks has

evinced a knowledgebase greater than that of a layperson in the

areas of credit scores, credit data security, and the polices

used in the industry to ensure compliance with applicable data

privacy regulations. As such, Hendricks is qualified to provide

testimony as to the basics of credit reporting and credit data

privacy, and the polices used in the industry relevant thereto.

This includes the issues of industry standards for data privacy

policies as they relate to credit inquiries.

Notably, the Court does not reach this decision in a

vacuum; other courts have reviewed Hendricks’ qualifications in

similar contexts and have reached similar conclusions about the

scope of his expertise. See, e.g., Brown v. Vivint Solar, Inc.,

No. 18-cv-2838, 2020 WL 1479079, at *2 (M.D. Fla. Mar. 26, 2020)

(“Hendricks is qualified to testify about the FCRA generally and

credit reporting issues [and] 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”);

Williams v. First Advantage LNS Screening Solutions Inc., No.

13-cv-222, 2015 WL 9690018, at *2 (N.D. Fla. Mar. 31, 2015)

(“Hendricks’ experience qualified him as an expert on consumer

reports . . . and industry standards pertaining to FCRA

compliance”); McDonough v. JPMorgan Chase Bank, N.A., No. 15–cv–

617, 2016 WL 4944099, at *2 (E.D. Mo. Sept. 30, 2016) (finding

Hendricks’ experience qualified him to testify regarding

standard credit reporting policies and procedures).

Therefore, to the extent Defendant moves to exclude

Hendricks’ testimony on this basis, that motion will be denied.

B. Hendricks Is Not Qualified To Testify About Plaintiff’s

Damages, Physical Or Emotional, Or The Damages That Would

Be Expected To Flow From An FCRA Violation

Defendant argues that Hendricks is not qualified to testify

about Plaintiff’s physical or emotional damages, or the physical

or emotional damages caused by an FCRA violation. Plaintiff

represents that Hendricks is not being offered to opine on

whether Plaintiff actually suffered emotional distress.

Instead, Plaintiff says that Hendricks conducted first-hand

interviews with victims of privacy invasions and concluded that

the physical and emotional harm from such injuries manifests in

a number of ways, which Hendricks can testify about, and which

testimony will corroborate Plaintiff’s allegation that he

suffered emotional distress. Plaintiff’s framing of Hendricks’

testimony does not mask its true intention: Hendricks is being

offered to testify about the type of physical and emotional harm

expected to present after an invasion of the type Plaintiff

alleges. Hendricks is not qualified to offer such testimony.

This Court looks to Hendricks’ experience to determine

whether he possesses specialized knowledge on this topic.

Elcock, 233 F.3d at 741; Waldorf, 142 F.3d at 625. Hendricks’

curriculum vitae reveals no experience, education, or

qualification in assessing physical or emotional damages, nor

does he demonstrate a proficiency to support his opinion that

privacy injuries necessarily cause emotional harm. Indeed,

Plaintiff appears to argue that because Hendricks surveyed

victims of privacy invasions about their physical manifestations

following their experiences, he is qualified to opine on those

underlying manifestations. Simply polling a small group of

individuals about their experiences, however, does not render

someone an expert in the underlying information reported.2 Nor

does such activity provide a knowledgebase greater than what may

be possessed by layperson jurors. In rejecting Plaintiff’s

argument on this front, this Court joins a litany of other

courts to have done the same. See, e.g., Brown, 2020 WL

1479079, at *3 (“Hendricks is not qualified to opine regarding

Plaintiffs’ emotional or physical damages or the emotional and

physical damages that generally arise from FCRA violations”);

Valenzuela v. Equifax Info. Servs. LLC, No. 13-cv-2259, 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”); Anderson v. Equifax Info. Servs.,

LLC, No. 16-cv-2038, 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”); Malverty v. Equifax Info. Servs., LLC, No.

17-cv-1617, 2019 WL 5549146, at *2 (M.D. Fla. Oct. 28, 2019)

(Hendricks’ opinions “about the types of damages that are common

to plaintiffs in comparable circumstances would not assist the

2 Notably, neither Plaintiff nor Hendricks provide information

about this study that would permit the Court to conclude it was

reliable or conducted with sound methodology. For example,

Plaintiff does not explain who was studied, the questions posed

to study participants, or the methods used to identify subjects

and gather information. The absence of such information further

underscores this Court’s decision to bar such testimony.

jury, as it will be instructed on the proper measure of

damages”).

As such, Hendricks will not be permitted to testify about

Plaintiff’s damages, damages that he believes commonly present

in privacy invasion victims, or the information gathered during

his interviewing of other privacy breach victims. To the extent

Defendant moves to bar such testimony, Defendant’s motion will

be granted.

C. Hendricks’ Lack Of Rigid Methodology Is No Basis For

Precluding Him From Testifying

Defendant argues that Hendricks has not provided adequate

methodology for his opinions and therefore, his testimony must

be excluded. Plaintiff argues that Hendricks’ experience and

knowledge from working in the credit and privacy industries

qualify him to provide expert testimony in this action. Because

the testimony that this Court will permit relies exclusively

upon Hendricks’ experience in the relevant fields, the Court

will not bar his testimony based upon a lack of methodology.

The objective of this Court’s gatekeeping function is to

“ensure the reliability and relevancy of expert testimony.”

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153, 119 S. Ct.

1167, 1176, 143 L. Ed. 2d 238 (1999). The Court is charged with

ensuring that “an expert, whether basing testimony upon

professional studies or personal experience, employs in the

courtroom the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field.”

Id. The Supreme Court has recognized that the particular

inquires made by district courts in carrying out this obligation

must not be rigid, but rather, trial judges must have

considerable leeway in deciding in a particular case how to go

about determining whether particular expert testimony is

reliable. Id. “The trial court must have the same kind of

latitude in deciding how to test an expert’s reliability . . .

as it enjoys when it decides whether or not that expert’s

relevant testimony is reliable.” Id.

As this Court explained, Hendricks’ curriculum vitae

reveals he has been actively engaged in the privacy industry,

through consulting roles and otherwise, for more than thirty

years. Both the United States Senate and House of

Representatives have relied upon his testimony, as have a number

of courts throughout the country. He has consulted for large

governmental organizations on privacy policy implementation and

review. Hendricks represents that the methodology behind his

opinions flows from this experience; the Court agrees. While

Hendricks’ methods are not necessarily explained in detail, he

adequately explains how he will apply his experiences to the

facts of this case to render opinions. The Court finds that

such methods and experiences render Hendricks capable of opining

on the issues of general privacy background and standards

relating to acceptable, industry-standard practices for privacy

policy implementation and execution. Other courts to have

considered the issue have reached similar conclusions:

Hendricks will opine on the reasonableness of [the

defendant’s] actions and/or inactions. His testimony

is based on his experience and research in FCRA

matters. Thus, his method is simply an application of

his experience with an[] understanding of the FCRA and

the credit reporting industry to the facts at hand.

Although his methods are not meticulously detailed for

every conclusion, they can be understood and are

reliable. Moreover, “shaky but admissible evidence is

to be attacked by cross examination, contrary

evidence, and attention to the burden of proof, not

exclusion.”

See, e.g., Brown, 2020 WL 1479079, at *3–4 (quoting Valenzuela,

2015 WL 6811585, at *2) (internal citations omitted); Ma v.

Equifax Information Services, LLC, 288 F. Supp. 3d 1360, 1366-67

(N.D. Ga. 2017) (finding Hendricks’ methods sufficiently

reliable). Therefore, the Court will not bar Hendricks’

testimony for lack of articulated methodology.

D. Hendricks’ Opinions May Assist The Jury

Defendant argues that Hendricks’ opinions will not assist

the jury and they are therefore inadmissible under Rule 702 of

the Federal Rules of Evidence. Particularly, Defendant argues

that Hendricks’ opinions are little more than common sense

observations, are otherwise speculative and baseless, or

otherwise simply recite evidence or law.

Rule 702 requires an expert witness to have “specialized

knowledge” regarding the subject matter on which the testimony

is offered. Elcock, 233 F.3d at 741; Waldorf, 142 F.3d at 625.

Such knowledge must be more robust than would be possessed by

the average layperson. Elcock, 233 F.3d at 741; Waldorf, 142

F.3d at 625. With that standard in mind, the Court turns to the

opinions Hendricks seeks to offer, as identified in his Rule

26(a)(2) report under the section titled “summary of opinions.”

(ECF No. 81-1 at 2). Hendricks seeks to provide eleven (11)

separate opinions marked by bullet points in his report. The

Court addresses each in the order they appear in his report,

beginning with the first.

Hendricks’ first two opinions relate to the general impact

of hard credit inquiries on a consumer’s credit report and the

impact such inquires have on a consumer’s ability to obtain

credit. Hendricks’ testimony on these general matters may help

a jury understand these issues, which are relevant to this

action. Therefore, Hendricks will be permitted to testify on

these topics. See Brown, 2020 WL 1479079, at *4 (finding that

Hendricks may testify about “hard inquiries and their effect on

a credit file” and that such testimony “will aid the jury” in

understanding the issues in a nearly identical action).

Hendricks’ third, fourth, fifth, and sixth opinions — that

unauthorized access to credit information causes harm; that

continued complaints to the Better Business Bureau evince

Defendant’s lack of concern about customer privacy; and that

Defendant’s sales practices incentivize its salesmen to access

credit reports without consent — are conclusory statements that

fall afield of the scope of permissible expert testimony. These

are summary conclusions drawn from Hendricks’ interpretation of

facts as he understands them. These conclusions must be left

for the jury to reach after it has had an opportunity to

consider the facts established at trial. Similarly, Hendricks

seeks to opine on Defendant’s motivations and intentions,

including any purported “lack of concern” for consumer privacy

or “incentives” created by Defendant’s policies for salesmen to

violate consumer privacy. Whether Defendant’s actions evidence

any motivation or specific intent must be a decision left to the

jury. Therefore, like several courts before this one to have

considered this issue in the context of Hendricks’ proposed

testimony, the Court concludes Hendricks’ testimony on these

topics would usurp the function of the jury as factfinder, and

therefore, shall not be permitted. Brown, 2020 WL 1479079, at

*4; Anderson, 2018 WL 1542322, at *5; Valenzuela, 2015 WL

6811585, at *3.

Hendricks’ seventh, eighth, and ninth opinions — that

Defendant’s salesmen obtained information about potential

customers without permission and that these salesmen used that

information to complete credit applications and Prospective

Consumer Consent Forms (“PCCFs”) to initiate a credit inquiry

without the consumers’ knowledge or authorization — is

speculative. As Hendricks recognizes, his opinions assume facts

in dispute. See, e.g., (ECF No. 81-1 at 3) (suggesting

Defendant used “information which Defendant (most likely)

purchased from a third-party vendor”) (emphasis added). Because

Hendricks’ opinions are speculative, they are not reliably

accurate and would not assist the jury in deciding this case.

Moreover, if Plaintiff presents evidence at trial that the

salesmen did, in fact, have access to the information required

to fill out credit applications and PCCFs, a jury need not hear

Hendricks testify that it was possible for the salesmen to use

that information to forge electronic PCCFs without the

customers’ knowledge; such a conclusion would be readily

apparent to layperson jurors. The Court recognizes that the

Brown court reached a different conclusion on the admissibility

of Hendricks’ testimony on this subject. This Court

respectfully disagrees with its sister court in Florida.

Hendricks has not exemplified any knowledge about Defendant’s

iPad technology or software programing. Nor has Hendricks

exhibited for this Court any knowledge about Defendant’s

internal structure that would make him an authority on a

salesman’s ability to create forged PCCFs. Instead, Hendricks

appears to simply opine that if the foundational information

required by the PCCF was available to a salesman, they could use

that information to complete a forged PCCF. Such would be

apparent to a layperson. As such, this Court will not permit

Hendricks to testify on this subject.

Hendricks’ tenth opinion is that the incorrect email

address listed on Plaintiff’s PCCF contains errors similar to

those appearing on other PCCFs that Chamberlain was involved

with producing. Hendricks concludes that the similarity in

errors establishes a pattern of wrongful behavior by

Chamberlain. This opinion is conclusory and usurps the

factfinder’s authority to draw conclusions from facts in the

record. A jury of laypeople is more than qualified to review

the evidence of similarity between PCCFs that may be entered

into evidence and draw conclusions about them without the

assistance of an expert. As such, Hendricks will not be able to

testify on this topic.

Hendricks’ eleventh opinion is that Defendant lacked

adequate processes to prevent the unauthorized access of

Plaintiff’s consumer credit report. Hendricks opines that these

processes invited abuse by salespeople. As this Court

previously discussed, Hendricks may testify regarding industry

standards for preventing unauthorized access to consumer credit

reports and whether Defendant’s procedures were consistent with

industry standards. See Brown, 2020 WL 1479079, at *5 (reaching

the same conclusion and collecting cases reaching a similar

conclusion).

Hendricks may not, however, testify as to the ultimate

issue in this case – which relies heavily on Defendant’s intent.

For example, Hendricks cannot opine that Defendant’s processes

and procedures invited abuse or that Defendant negligently or

intentionally crafted polices that would foster abusive

practices. Nor can Hendricks offer opinion that Defendant is at

fault for the alleged unauthorized access to Plaintiff’s credit

reports, or that Defendant violated the FCRA. Those are

determinations that if made at all, must be made by the jury,

and they need no help from Hendricks in conducting that

analysis. See Brown, 2020 WL 1479079, at *5 (reaching a similar

conclusion and collecting cases doing the same).

Additionally, the Court finds Hendricks cannot testify

regarding other portions of his expert report. Hendricks cites

to legal authority for the background on the FCRA; Hendricks’

interpretation of the FCRA and relevant legal precedent,

however, will not aid the jury. Advising the jury on the

applicable law will remain within the province of this Court.

See Brown, 2020 WL 1479079, at *5; Williams, 2015 WL 9690018, at

*4 (limiting Hendricks’ testimony regarding the history of the

FCRA). As the Brown court found, and as this Court now finds,

Hendricks may not testify about, or cite to, case law to

describe privacy rights; the historical background of the FCRA,

privacy rights, and Congressional findings on both; and FTC

staff opinions. Hendricks may only provide general background

and context regarding the FCRA to the extent it is relevant as

background information for his testimony and to the extent he

has knowledge of it from his training and experience. See Id.

CONCLUSION

For the reasons expressed above, Defendant’s motion to

preclude the testimony of Plaintiff’s putative expert, Hendricks

(ECF No. 76), will be granted in part and denied in part

consistent with this Opinion.

An appropriate Order follows.

Date: May 17, 2020 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.