# REILLY v. VIVINT SOLAR

> District Court, D. New Jersey · June 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10268335

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** June 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10268335

## How later opinions describe it (automated extraction)

- finding Hendricks’ methods sufficiently reliable

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JAMES REILLY, 1:18-cv-12356-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

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

Attorneys for Defendant.

HILLMAN, District Judge
This Fair Credit Reporting Act (“FCRA”) and identity theft
matter comes before the Court on Defendant Vivint Solar’s
(“Defendant”) motion to preclude the expert testimony of Evan
Hendricks (“Hendricks”), Plaintiff James Reilly’s (“Plaintiff”)
putative expert. (ECF No. 61). 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. Relevant
facts are repeated here only to the extent necessary to resolve
this motion.

Defendant sells solar panels and, through its salesman
Phillip R. Chamberlain (“Chamberlain”), communicated with
Melissa Knight (“Knight”), the owner of Plaintiff’s former home,
about installing a solar panel system on her property. Despite
Plaintiff having no contact with Knight or Defendant about the
purchase Knight was making, Chamberlain forged various documents
in support of Knight’s purchase. Those documents suggest that
Plaintiff was somehow involved in Knight’s purchase. Defendant
relied upon these forged documents to conduct a hard credit
inquiry into Plaintiff’s credit worthiness and further, to lodge
liens against him. As a result of Defendant’s unauthorized
actions, Plaintiff alleges he suffered emotional distress and
other damages associated with remediating the harm Defendant
caused.
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. 65-2). 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) as to whether Defendant exhibited
behavior in reckless disregard for consumer privacy and safety,

(4) the harm generally caused by unauthorized credit inquires,
and (5) 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 testimony
as an 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.
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.
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.
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.1 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”);

1 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.
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
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.”
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.”
Hendricks seeks to provide sixteen (16) 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 and within his sphere of knowledge. 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, sixth, and seventh
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 laws. 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’ eighth, ninth, and tenth opinions — that
Defendant’s salesmen obtained information about potential
customers without permission, 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, and that
salesmen were “facilitated” in these efforts by prior collection
of information — is entirely speculative. As Hendricks
recognizes, his opinions assume facts in dispute. See, e.g.,
(ECF No. 65-2 at 2) (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’ eleventh opinion is that the incorrect email
address listed on the PCCFs at issue in this case contain 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’ twelfth 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.
Hendricks’ twelfth, thirteenth, fourteenth, fifteenth, and
sixteenth opinions – that Defendant “invaded and therefore
harmed Plaintiff’s privacy,” that Defendant’s use of electronic
forms invited abuse, and that Defendant “effectively made
identity theft part of its method of operation” – do just that,
and will not be permitted. 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. 61), will be granted in part and denied in part
consistent with this Opinion.
An appropriate Order follows.

Date: June 8, 2020___ s/ Noel L. Hillman_____
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10268335. Public record. Not legal advice.