Cooper v. Milliman, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

BARBARA COOPER,

Plaintiff,

v. Case No: 2:23-cv-00028-JES-NPM

MILLIMAN, INC.,

Defendant.

OPINION AND ORDER

This matter comes before the Court on Plaintiff Barbara

Cooper’s Motion to Exclude Opinion Evidence From Rebecca Kuehn

(Doc. #83) filed on November 22, 2024. Milliman, Inc.’s

Opposition to Plaintiff’s Motion to Exclude and Request to Strike

and Award Sanctions (Doc. #87) was filed on December 13, 2024.1

For the reasons set forth below, the motion is granted in part

and denied in part.

I.

The Court recently summarized this Fair Credit Reporting Act

(FCRA) case in an Opinion and Order on cross-motions for summary

1 Defendant’s Opposition contains an embedded request to

strike the motion and award sanctions for filing what it describes

as a “baseless” motion without a Local Rule 3.01(g)

Certification. This request is itself a motion, Fed. R. Civ. P.

7(b)(1), for which there is no Rule 3.01(g) certificate. In any

event, the Court does not find the motion to be baseless, and

therefore declines to either strike the motion or award

sanctions.

judgment:

In October 2022, Cooper applied for insurance with

a non-party insurance company (the Insurer). As part

of its evaluation process, the Insurer requested a

consumer report from Milliman. Milliman, whom the

parties agree is a Consumer Reporting Agency pursuant

to the FCRA, was furnished with Plaintiff’s

prescription and medical history by Anthem, a non-party

data furnisher. Milliman compiled the report and sent

it the Insurer. The Insurer then denied Plaintiff’s

application based on her “prescription and/or medical

history.”

Plaintiff obtained a copy of the report from

Milliman and disputed its accuracy. Among other errors,

the report showed Plaintiff was prescribed flecainide

acetate by Dr. Newton Wiggins and multiple fillings of

that prescription by Plaintiff. As it turned out, this

erroneous information attributed to Plaintiff actually

concerned another person with the same first name, last

name, and date of birth as Plaintiff. Milliman removed

the inaccurate information within thirty days and

applied its internal blocking protocol to prevent the

removed information from reappearing in future reports.

Plaintiff reapplied and the cycle began anew. The

Insurer requested a new report from Milliman. Milliman

was furnished with Plaintiff’s prescription and medical

history by Anthem, compiled a report, and sent it the

Insurer. The Insurer then auto-declined Plaintiff’s

application because the report still showed Plaintiff

had received a flecainide acetate prescription by Dr.

Wiggins. However, the Insurer was able to compare the

new report with the old-but-revised report and

determine the flecainide acetate prescription by Dr.

Wiggins did not actually relate to Plaintiff. The

Insurer then overturned the auto-decline and approved

Plaintiff’s application. This lawsuit followed.

(Doc. #101, pp. 3-5)(internal citation and footnote omitted.) The

Court also adopts its discussion of the legal requirements of the

FCRA set forth in that Opinion and Order.

II.

Two primary questions to be resolved by the jury are whether

Milliman’s procedures to assure maximum possible accuracy were

reasonable or unreasonable, and whether its procedures to prevent

the reinsertion of inaccurate information in a report were

reasonable or unreasonable. Cooper has identified her expert on

these issues as Evan Henricks (Henricks). Milliman has identified

attorney Rebecca Kuehn (Kuehn) as its expert to rebut Henricks’

opinions. Kuehn’s expert report states she will offer the

following opinions:

A. Milliman’s Process for Matching Consumer

Records is Consistent with Industry

Practice and Otherwise Reasonable.

B. Milliman’s Procedure for Blocking

Information that was Previously Removed

from a Consumer Report is Consistent with

Industry Practice and Reasonable.

(Doc. #79-6, pp. 15, 17.)

Plaintiff argues that Kuehn in unqualified and her proffered

testimony unreliable because she: (1) has no experience or

training in assuring FCRA compliance for procedures concerning

the reporting or reinvestigation of consumer medical information;

(2) has no knowledge about how identity matching works or about

the software Milliman used to prevent the reinsertion of

inaccurate information in the second report; (3) has no direct

experience with Milliman’s practices and procedures and relies

heavily or exclusively on hearsay statements made by Milliman’s

corporate representative (Joel Strassburg); and (4) never

identifies any industry standards. “As such,” Plaintiff contends,

“her opinions are nothing more than bare legal conclusions that

are pasted on to Milliman’s factual theories.” (Doc. #83, p. 24.)

Milliman disagrees with each argument.

III.

Admission of expert opinion evidence is governed by Fed. R.

Evid. 702, which 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

the proponent demonstrates to the court that it is more

likely than not that:

(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’s opinion reflects a reliable

application of the principles and methods to

the facts of the case.

Fed. R. Evid. 702. In Kumho Tire Co. v. Carmichael, 526 U.S. 137

(1999) and Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993),

the Supreme Court held that the trial court has a “gatekeeper”

function designed to ensure that any and all expert testimony is

both relevant and reliable. The importance of this gatekeeping

function “cannot be overstated.” United States v. Frazier, 387

F.3d 1244, 1260 (11th Cir. 2004)(en banc).

In determining the admissibility of expert testimony under

Rule 702, the Court applies a “rigorous” three-part inquiry.

Frazier, 387 F.3d at 1260. A district court determines the

admissibility of expert testimony by considering 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.

Knepfle v. J-Tech Corp., 48 F.4th 1282, 1294 (11th Cir.

2022)(quoting City of Tuscaloosa v. Harcros Chems., Inc., 158

F.3d 548, 562 (11th Cir. 1998)). In short, “the expert must be

qualified; his methodology must be reliable; and his testimony

must be helpful to the trier of fact.” Doe v. Rollins Coll., 77

F.4th 1340, 1347 (11th Cir. 2023). “[T]he party seeking to

introduce the expert at trial bears the burden of establishing

his qualifications, reliability, and helpfulness.” Knepfle, 48

F.4th at 1294 (citing Frazier, 387 F.3d at 1260).

“Even expert testimony which satisfies these three

requirements, however, may nonetheless be excluded under Rule 403

if the probative value of the expert testimony is substantially

outweighed by its potential to confuse or mislead the jury, or

if it is cumulative or needlessly time consuming.” Frazier, 387

F.3d at 1263. In the final analysis, the admission of expert

testimony is a matter within the discretion of the trial court.

Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., Fla.,

402 F.3d 1092, 1103 (11th Cir. 2005); Frazier, 387 F.3d at 1258.

The gatekeeper function, however, does not provide the Court

with an opportunity to substitutes its judgment for that of a

jury as to the persuasiveness of the expert evidence. United

States v. Barton, 909 F.3d 1323, 1332 (11th Cir. 2018). Rather,

“[v]igorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof are the

traditional and appropriate means of attacking shaky but

admissible evidence,” (Id.)(citation omitted).

The expert testimony anticipated in this case is not

scientific. Nonetheless, “[t]he principles set out in Daubert

apply to soft-science expert testimony. ‘Social science

testimony, like other expert testimony . . ., must be tested to

be sure that the person possesses genuine expertise in a field

and that her court testimony adheres to the same standards of

intellectual rigor that are demanded in her professional work.’”

Carrizosa v. Chiquita Brands Int'l, Inc., 47 F.4th 1278, 1317–18

(11th Cir. 2022)(citations omitted).

That said, “social science research,

theories[,] and opinions cannot have the

exactness of hard science methodologies,”

and peer review, publication, error rate,

etc. are not applicable to this kind of

testimony, whose reliability depends heavily

on the knowledge and experience of the

expert. Where “ideal experimental conditions

and controls” are precluded, “other indicia

of reliability are considered under Daubert,

including professional experience,

education, training, and observations.”

Where appropriate, social science expert

testimony can give the jury a view of the

evidence well beyond their everyday

experience.

Id. at 1318 (internal citations omitted).

IV.

A. Kuehn’s Expert Qualifications

The first requirement is that the expert is qualified to

testify on the subject matter. Milliman bears the burden of

establishing by a preponderance of the evidence that Kuehn “is

qualified as an expert,” which means showing Kuehn “is the type

of person who should be testifying on the matter at hand.” Moore

v. Intuitive Surgical, Inc., 995 F.3d 839, 852 (11th Cir. 2021).

“[E]xpert status may be based on ‘knowledge, skill, experience,

training, or education.’” Frazier, 387 F.3d at 1261 (quoting Fed.

R. Evid. 702). Because Kuehn is relying primarily on her

experience, Milliman has the burden “to explain how that

experience led to the conclusion [s]he reached, why that

experience was a sufficient basis for the opinion, and just how

that experience was reliably applied to the facts of the case.”

Frazier, 387 F.3d at 1265. “As a general rule, questions relating

to the bases and sources of an expert's opinion affect the weight

to be assigned that opinion rather than its admissibility and

should be left for the jury's consideration.” Carrizosa, 47 F.4th

at 1323 (citation omitted).

Kuehn states she is “an expert in the policies, procedures,

and practices that consumer reporting agencies (‘CRAs’) use to

ensure compliance with the FCRA.” (Doc. #79-6, p. 3.) She

“developed this expertise through substantial experience in the

industry advising CRAs, lenders, and other users of credit

reports on the development of procedures designed to comply with

the FCRA.” (Id.) Her resume shows that Kuehn graduated near the

top of her class at George Washington Law School. (Id. at p. 26.)

She served five years at the Federal Trade Commission (FTC), “a

federal agency tasked with the enforcement of the FCRA,” (id. at

p. 3), as an Assistant Director, where she was “[p]rimarily

responsible for the [FCRA] program, leading the Commission’s

enforcement, policy, outreach, and rulemaking activities in that

area.” (Id. at p. 25.)

In that role, Kuehn “oversaw the development and issuance

of the FTC staff report, 40 years of Experience with the Fair

Credit Reporting Act: An FTC Staff Report with Summary of

Interpretations,” a report that “is relied upon by government and

industry as an authoritative source on the FCRA.” (Id. at p. 4

n.5.) Since leaving that role in September 2011, Kuehn has advised

employers and clients on the FCRA. (Id. at p. 25.) In addition,

Kuehn has served as co-chair of the FCRA Litigation Subcommittee

in the American Bar Association, (id. at p. 26), given numerous

presentations on the FCRA, (id. at pp. 27-31), authored various

publications on the FCRA, (id. at p. 23), and “testified before

the U.S. House Committee on Financial Services . . . on behalf

of the Consumer Data Industry Association, at a hearing on

‘Consumer Credit Reporting: Assessing Accuracy and Compliance.’”

(Id. at p. 6.)

Plaintiff’s arguments against Kuehn’s qualifications fail

because they go towards the weight of Kuehn’s proffered

testimony, not its admissibility. For example, when Plaintiff

argues that Kuehn is unqualified to opine on industry standards

because of any lack of experience as to reporting of medical

information, she essentially argues the FCRA requires specificity

as to each area it applies. But the FCRA deals with CRAs in

general and whether their procedures are reasonable. It requires

all CRAs, regardless of industry, to follow or maintain

reasonable procedures and nothing in the Act provides separate

rules based on the type of information collected and reported.

Same goes for Plaintiff’s argument that Kuehn must have direct

knowledge about Milliman’s identity matching or software. See

Carrizosa, 47 F.4th at 1323 (explaining the bases and sources of

an expert’s opinion typically goes to weight of evidence).

Plaintiff’s dispute as to Kuehn’s interview with corporate

representative Joel Strassburg and her reliance on that interview

to form her opinions also falls short. In her report, Kuehn states

she “became aware and gained an understanding of the facts” by

“review[ing] and consider[ing],” (Doc. #79-6, p. 3 n.1), among

other things, Plaintiff’s deposition, Plaintiff’s expert’s

deposition, documents produced by Plaintiff and Defendant, and

her interview with corporate representative Joel Strassburg. (Id.

at p. 21.) Kuehn clearly did not exclusively rely on Strassburg

to gain an understanding of the facts. In any event, Plaintiff

will have an opportunity to cross-examine and elicit an opinion

from Kuehn based on Plaintiff’s version of events. See Travelers

Prop. Cas. Co. of Am. v. Ocean Reef Charters LLC, 71 F.4th 894,

906 (11th Cir. 2023)(“The ability to answer hypothetical

questions is ‘[t]he essential difference’ between expert and lay

witnesses.”) (quoting United States v. Henderson, 409 F.3d 1293,

1300 (11th Cir. 2005))). The jury, as the ultimate factfinders,

will then be free to accept whatever fact and disbelieve or

believe whatever expert. Additionally, Kuehn is permitted to base

her opinions on inadmissible hearsay pursuant to Fed. R. Evid.

703 because such underlying information is of the type reasonably

relied upon by experts in forming opinions. United States v.

Steed, 548 F.3d 961, 975 (11th Cir. 2008). While this does not

open the door to all inadmissible evidence disguised as expert

opinion, Id., that concern may be handled with specific

objections at trial.

As Plaintiff herself admits, Kuehn has “impressive

credentials” at first sight. (Doc. #83, p. 22.) Even Plaintiff’s

own expert has recognized Kuehn’s FCRA qualifications. See

Jackson v. Equifax Info. Servs. LLC, No. 113CV02382MHCRGV, 2015

WL 13649449, at *6 n.17 (N.D. Ga. July 29, 2015)(acknowledging

that Kuehn’s law firm is “one of the leading FCRA compliance law

firms.”) Kuehn is qualified to testify concerning policies and

procedures relating to compliance with the FCRA.

B. Reliability of Methodology

The second requirement is that Kuehn’s methodology is

sufficiently reliable. As discussed earlier, the reliability of

non-scientific expert opinions depends heavily on the knowledge

and experience of the expert, not the exactness of the

methodology. Indicia of reliability under Daubert includes

professional experience, education, training, and observations.

Carrizosa, 47 F.4th at 1318. If an expert “is relying solely or

primarily on experience, then [she] 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.” Id. at 1322.

Evidence of compliance or noncompliance with a custom within

a particular industry, though not conclusive, is a factor the

trier of fact may consider. Carroll v. Carnival Corp., 955 F.3d

1260, 1269 (11th Cir. 2020); Sorrels v. NCL (Bahamas) Ltd., 796

F.3d 1275, 1282 (11th Cir. 2015). Knowledge of such industry

practices, procedures, and customs has been accepted as

sufficiently reliable to allow qualification as an expert witness

in a FCRA case. See Williams v. First Advantage LNS Screening

Sols. Inc, 947 F.3d 735, 743 (11th Cir. 2020)(relating to

Hendricks). Admissibility of an expert opinion, however, cannot

“be established merely by the ipse dixit2 of an admittedly

qualified expert,” Frazier, 387 F.3d at 1261. See also United

States v. Ahmed, 73 F.4th 1363, 1382 (11th Cir. 2023). “[N]othing

in either Daubert or the Federal Rules of Evidence requires a

district court to admit opinion evidence that is connected to

existing data only by the ipse dixit of the expert.” Gen. Elec.

Co. v. Joiner, 522 U.S. 136, 146 (1997).

The Court finds Kuehn possesses the required knowledge and

experience to provide reliable testimony that is not merely ipse

dixit. Kuehn has published numerous works on the FCRA. One

publication was at the FTC, which can set guidance as to what

2 “Ipse dixit” is Latin for “he himself said it.” Black's

Law Dictionary 833 (12th ed. 2024). The term is used to refer to

“[s]omething asserted but not proved.” Id.

procedures are or are not reasonable. See Pedro v. Equifax, Inc.,

868 F.3d 1275, 1280 (11th Cir. 2017). Her knowledge has been

tested at various presentations, in court, (Doc. #79-6, p. 6),

and before Congress. The application of her vast knowledge and

experience to the facts here is what makes her reliable. See

Brown v. Vivint Solar, Inc., 612 F. Supp. 3d 1337, 1344 (M.D.

Fla. 2020)(finding FCRA expert witness reliable because his

“testimony is based on his experience and research in FCRA

matters” and “his method is simply an application of his

experience with and understanding of the FCRA and the credit

reporting industry to the facts at hand.” (quoting Valenzuela v.

Equifax Information Services LLC, 2015 WL 6811585, at *2 (D.

Ariz. Nov. 6, 2015)). Other arguments, like that Kuehn’s opinion

is unreliable because of her lack of knowledge about identity

matching or Milliman’s software and her excessive reliance on

information supplied by Milliman’s corporate representative, as

discussed earlier, are unpersuasive because they go to the weight

of Kuehn’s testimony, not its admissibility.

One of Cooper’s arguments is persuasive though. Cooper

asserts that Kuehn opinions are simply statements of law, which

are improper:

While it is well established that a qualified

expert in a civil case may offer his opinion

on an “ultimate issue” in a case, Fed. R.

Evid. 704(a), experts “may not testify to the

legal implications of conduct” or “tell the

jury what result to reach.” Rather, “the

court must be the jury's only source of law,”

and questions of law are not subject to

expert testimony. Id. “[C]ourts must remain

vigilant against the admission of legal

conclusions, and an expert witness may not

substitute for the court in charging the jury

regarding the applicable law.” Thus, the

district court must take “adequate steps to

protect against the danger that [an] expert's

opinion would be accepted as a legal

conclusion.”

Commodores Entm't Corp. v. McClary, 879 F.3d 1114, 1128–29 (11th

Cir. 2018)(citations omitted). Additionally, while a witness may

testify concerning an ultimate issue of fact, the witness may not

“tell the jury what result to reach.” See Montgomery v. Aetna

Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990). “A witness

also may not testify to the legal implications of conduct; the

court must be the jury's only source of law.” Id.

Kuehn will be able to testify to compliance or non-

compliance with industry customs and standards, but not whether

Milliman’s procedures were reasonable or unreasonable. The

consensus in the Middle District of Florida is that an FCRA expert

cannot testify whether procedures were “reasonable” or

“unreasonable.” Williams v. First Advantage LNS Screening Sols.

Inc, No. 1:13CV222-MW/GRJ, 2015 WL 9690018, at *3 (N.D. Fla. Mar.

31, 2015)(“To the extent Mr. Hendricks intends to testify on

whether Defendant's methods, specifically, are “reasonable,” such

testimony is improper.”); Malverty v. Equifax Info. Servs., LLC,

No. 8:17-CV-1617-T-27AEP, 2019 WL 5549146, at *3 (M.D. Fla. Oct.

28, 2019)(holding the expert may compare the party’s procedures

to industry standard but “[h]e may not, however, testify about

whether Equifax's existing procedures or conduct were

unreasonable, reckless, inadequate, or offer any other legal

conclusion.”); Brown, 612 F. Supp. 3d at 1345 (holding the expert

may “testify regarding the industry standards [and] whether

Defendants' procedures complied with industry standards,” but

“may not specifically state that he believes that Defendants'

procedures are inadequate . . . .”); Brinkman v. Acct. Resol.

Servs., No. 8:20-CV-2453-VMC-AAS, 2021 WL 4340413, at *4 (M.D.

Fla. Sept. 23, 2021)(agreeing that expert could not testify as

to whether investigation was reasonable because it would be

impermissible legal conclusion”); Shipley v. Hunter Warfield,

Inc., No. 8:20-CV-2285-JSM-SPF, 2021 WL 5756618, at *6 (M.D. Fla.

Oct. 29, 2021)(“Therefore, Hendricks may not testify as to

whether Hunter's investigation was reasonable or provide any

other legal conclusion.”); Santos v. Experian Info. Sols., Inc.,

No. 19-23084-CIV, 2021 WL 6144643, at *5 (S.D. Fla. Nov. 30,

2021) (“He may not testify about whether Experian's existing

procedures or conduct were unreasonable, reckless, inadequate,

or offer any other legal conclusion.”); see also Williams, 2015

WL 9690018, at *4(“Mr. Hendricks is an expert called to testify

about prevailing industry standards and whether Defendant's

procedures comport with those norms. The standards aid the jury

in its determination. Anything beyond this information is

irrelevant.”); Garcia v. Equifax Info. Servs., LLC, No. 8:22-CV-

1987-WFJ-UAM, 2024 WL 1739505, at *2 (M.D. Fla. Apr. 23,

2024)(“Mr. Ulzheimer accomplishes all these things without

attempting to offer legal conclusions concerning “reasonableness”

under the FCRA.”).

The Court finds Kuehn’s opinion as to policies and

procedures relating to compliance with the FCRA is reliable. But

she may not opine as to whether Defendant’s procedures were

ultimately reasonable or unreasonable.

C. Helpfulness

The third prong asks “whether that reasoning or methodology

properly can be applied to the facts in issue.” Daubert, 509 U.S.

at 593. Commonly referred to as the “helpfulness” inquiry, expert

testimony can properly be applied and is helpful if it relates

to any issue in the case and if it concerns matters that are

beyond the understanding of an average lay person. Prosper v.

Martin, 989 F.3d 1242, 1249 (11th Cir. 2021).

Kuehn’s testimony can be helpful to the trier of fact. In

Williams, 947 F.3d at 743, an expert witness testified as to the

procedures used by the CRA in that case and compared it to the

procedure used by other CRAs. Kuehn is proffered to essentially

provide the same testimony. An average lay person does not know

the industry-standard procedures used by CRAs. Therefore, Kuehn’s

testimony could help the jury determine whether Defendant’s

procedures were reasonable and if any violation was willful.

D. Rule 403

Kuehn satisfies all three prongs of Daubert and except for

the exclusion of witness testimony as to “reasonableness” or

“unreasonableness”, the Court finds no undue prejudice from the

anticipated testimony.

Accordingly, it is hereby

ORDERED :

Plaintiff’s Motion to Exclude Opinion Evidence From Rebecca

Kuehn (Doc. #83) is GRANTED IN PART AND DENIED IN PART. While

Kuehn may testify to industry practices or standards, neither

expert may testify that Milliman’s procedures were unreasonable

or reasonable.

DONE and ORDERED at Fort Myers, Florida, this 7th day

of April, 2025.

if —" Ae

he cE. Akisol

□□□ E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

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Counsel of Record