McDonough v. JPMorgan Chase Bank, N.A. et al
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant JPMorgan Chase Bank, N.A.s Motion to Exclude the Testimony of Plaintiffs Expert Witness Evan Hendricks (ECF No. 69) is GRANTED in part, and DENIED in part. IT IS FURTHER ORDERED that Plaintiff Kirk McDonoughs Motion for Leave to File Surreply to Reply (ECF No. 101) is DENIED. IT IS FURTHER ORDERED that a hearing is set for Friday September 30, 2016 at 1:00 p.m. in Courtroom 16-North of the Thomas F. Eagleton United States Courthouse, at wh ich time Plaintiff will produce its expert witness Mr. Hendricks to the Court and will specifically identify the testimony it expects Mr. Hendricks to present to the jury during trial. 101 69 ( In Court Hearing set for 9/30/2016 01:00 PM before District Judge Jean C. Hamilton.) Signed by District Judge Jean C. Hamilton on 9/16/16. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
KIRK T. MCDONOUGH,
JPMORGAN CHASE BANK, N.A.,
Case No. 4:15-cv-00617-JCH
MEMORANDUM AND ORDER
This matter is before the Court on Defendant JPMorgan Chase Bank, N.A.’s (“Chase”)
Motion to Exclude the Testimony of Plaintiff’s Expert Witness Evan Hendricks. (ECF No. 69.)
The Motion has been fully briefed and is ready for disposition.
In April 2015, Plaintiff Kirk McDonough filed this action for damages asserting claims
under the Fair Credit Reporting Act (“FCRA”). In his Amended Complaint, McDonough alleges
as follows. Trans Union LLC (“Trans Union”) inaccurately reported that he had a mortgage with
Chase that was included in Bankruptcy. He repeatedly disputed the inaccurate notation on his
credit report with Trans Union and with Chase. Despite his repeated requests, Chase failed to
perform a reasonable investigation into the matter, and failed to adequately report the results
necessary to make his credit report accurate and complete. McDonough claims that Chase
willfully violated the FCRA.
In support of his claims, McDonough seeks to introduce the testimony of expert witness
Evan Hendricks. In its Motion to Exclude, Chase contends Mr. Hendricks’s expert testimony is
inadmissible under both the Federal Rules of Evidence and the Supreme Court’s rulings in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. 137 (1999).
Federal Rule of Evidence 702 governs the admissibility of expert testimony, and requires
district courts “to perform a ‘gatekeeping’ function and insure that proffered expert testimony is
both relevant and reliable.” Dancy v Hyster Co., 127 F.3d 649, 651-52 (8th Cir. 1997) (citations
omitted); see also Daubert, 509 U.S. at 589. Rule 702 provides that a court may permit opinion
testimony from a witness qualified as an expert 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 upon 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 Eighth Circuit has summarized Rule 702 as a three-part test:
First, evidence based on scientific, technical, or other specialized knowledge must
be useful to the finder of fact in deciding the ultimate issue of fact…This is the
basic rule of relevancy. Second, the proposed witness must be qualified to assist
the finder of fact…Third, the proposed evidence must be reliable or trustworthy in
an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the
assistance the finder of fact requires.
Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (quotation and citation omitted).
The standard must be applied in view of the fact that “Rule 702 reflects an attempt to liberalize
the rules governing the admission of expert testimony[,]” and “[t]he rule clearly is one of
admissibility rather than exclusion.” Id. (quotations and citation omitted).
“The proponent of the expert testimony must prove its admissibility by a preponderance
of the evidence.”
Id. (citation omitted).
“Decisions concerning the admission of expert
testimony lie within the broad discretion of the district court.” Russell v. Whirlpool Corp., 702
F.3d 450, 455 (8th Cir. 2012) (quotation omitted).
Chase seeks to exclude the expert testimony of Mr. Hendricks on the following grounds:
(1) that he is not qualified to testify as an expert; (2) that his opinions and conclusions are not
reliable, do not fit the facts of the case, and will not aid the jury in its decision-making process;
and (3) that his opinions and conclusions amount to nothing more than speculations and legal
conclusions. (ECF Nos. 69, 70.)
Upon consideration of the Parties’ arguments, this Court concludes that Mr. Hendricks is
qualified to serve as an expert in this case. He has served as an expert witness in numerous other
cases across the country involving similar claims. In April 2016, a court in the District of
Arizona determined that it “[could not] conclude that Mr. Hendricks [was] unqualified to opine
as to standard credit reporting policies and procedures.” Zabriskie v. Fed. Nat’l Mortg. Ass’n,
No. CV-13-02260-PHX-SRB, 2016 WL 3653512, at *2 (D. Ariz. Apr. 22, 2016). In reaching
this determination, the court recognized:
‘For thirty-three years, Hendricks researched, wrote, edited, and published a biweekly newsletter covering various aspects of the FCRA. For ten years, he
served as a privacy expert consultant for the Social Security Administration,
where he reviewed policies and practices regarding use and disclosure of personal
data. Hendricks also has a FCRA certification from the National Credit Reporting
Association. Additionally, Hendricks has testified about the FCRA and related
matters before the United States House Financial Services Committee and Senate
Banking Committee, and has been admitted as an expert witness to testify on
similar matters in both state and federal courts. These experiences qualify
Hendricks to offer expert witness testimony of certain topics in this case.’
Id. (quoting Valenzuela v. Equifax Info. Servs. LLC, No. CV-13-02259-PHX-DLR, 2015 WL
6811585, at *2 (D. Ariz. Nov. 6, 2015)).
This Court agrees and further finds that Mr.
Hendricks’s experience and testimony regarding standard credit reporting policies and
procedures will assist the trier of fact.
In view of the foregoing, the Court will not preclude Mr. Hendricks from testifying about
the relevant industry standards for reporting and investigating consumer credit data and how
Chase’s actions in connection with McDonough’s credit dispute comport with such. See Lauzon,
270 F.3d at 686; see also Johnson v. Mead Johnson & Co., LLC, 753 F.3d 557, 562 (8th Cir.) (as
long as expert’s testimony rests upon “good grounds, based on what is known” it should be
tested by adversary process with competing expert testimony and cross-examination, rather than
excluded by court at outset), cert. denied, 135 S. Ct. 489 (2014); Robinson v. GEICO Gen. Ins.
Co., 447 F.3d 1096, 1100-01 (8th Cir. 2006) (gaps in expert witness’s qualifications or
knowledge generally go to weight of witness’s testimony, not its admissibility.). To the extent
Chase challenges the reliability of Mr. Hendricks’s testimony on the basis that his report is
inconsistent with the facts and evidence of the case, Chase may raise these issues during crossexamination at trial.1 See Neb. Plastics, Inc. v. Holland Colors Americas, Inc., 408 F.3d 410,
416 (8th Cir. 2005) (as general rule, unless it is so fundamentally unsupported, factual basis of
expert opinion goes to credibility of testimony, not admissibility, and it is up to opposing party to
examine factual basis for opinion on cross-examination).
Mr. Hendricks, however, will not be permitted to render legal analysis or conclusions of
law, including any opinions regarding whether Chase’s conduct conformed to a particular legal
standard, as this is an ultimate issue that should be decided by the jury. Similarly, Mr. Hendricks
The Court notes that Mr. Hendricks’s Report indicates that he reviewed “Plaintiff’s Complaint,”
“Plaintiff’s credit reports and dispute-related communications,” “various correspondences on
behalf of Plaintiff & Defendants,” “Defendants’ and Plaintiff’s Disclosure and Answers,” and
“Documents produced by Plaintiff, Defendants & Prior Defendants (as of March 8, 2016).” ECF
No. 70.1 at 39.)
will not be permitted to provide any opinions as to whether Chase’s actions were unreasonable,
unreliable, inadequate, negligent, willful, or in any other manner violative of the FCRA. See
Fed. R. Evid. 704(a); Am. Auto. Ins. Co. v. Omega Flex, Inc., 783 F.3d 720, 725 (8th Cir. 2015)
(while expert may opine on ultimate issue of case under Rule 704, courts must guard against
invading province of jury on question which jury is entirely capable of answering without benefit
of expert opinion). In addition, because Mr. Hendricks is not qualified to provide medical
opinions, he will not be permitted to render an opinion as to whether Chase’s conduct has caused
McDonough emotional distress, and he will be precluded from providing any opinions regarding
the types of damages that are common to victims who have suffered emotional distress under
comparable circumstances as McDonough.
Finally, because Mr. Hendricks’s report presents opinions that intervolve Trans Union
and Chase, and because it covers additional material which the Court finds is not relevant to this
matter and should be precluded, the Parties are ordered to appear before the Court for a pre-trial
conference on Friday September 30, 2016, at 1:00 p.m. At that time, Plaintiff will produce its
expert witness Mr. Hendricks to the Court and will specifically identify the testimony it expects
Mr. Hendricks to present to the jury during trial. The Court will then issue a ruling further
delineating the scope of Mr. Hendricks trial testimony.
IT IS HEREBY ORDERED that Defendant JPMorgan Chase Bank, N.A.’s Motion to
Exclude the Testimony of Plaintiff’s Expert Witness Evan Hendricks (ECF No. 69) is
GRANTED in part, and DENIED in part.
IT IS FURTHER ORDERED that Plaintiff Kirk McDonough’s Motion for Leave to
File Surreply to Reply (ECF No. 101) is DENIED.
IT IS FURTHER ORDERED that a hearing is set for Friday September 30, 2016 at
1:00 p.m. in Courtroom 16-North of the Thomas F. Eagleton United States Courthouse, at which
time Plaintiff will produce its expert witness Mr. Hendricks to the Court and will specifically
identify the testimony it expects Mr. Hendricks to present to the jury during trial.
Dated this 30th day of September, 2016.
/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
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