Expert Witness Blog
Plaintiff sued defendants for violations of the Fair Credit Reporting Act, arguing that they inaccurately reported and investigated a delinquent account as charged off. Plaintiff hired a credit damage expert witness to assist in his case. Defendant filed a motion to exclude, which the court granted.
Facts: This case (Barakat v. Equifax Information Services, LLC et al – United States District Court – Eastern District of Michigan – August 2nd, 2017) involves alleged violations of the Fair Credit Reporting Act (FCRA). The plaintiff (Barakat) claims that Defendant Capitol One inaccurately reported his delinquent credit account as charged off to three other three defendant Credit Reporting Agencies (CRAs): Equifax, Experian, and TransUnion. Barakat alleges that Capitol One failed to conduct a proper investigation of the dispute and that the CRAs did not follow reasonable procedures to ensure that the reports were accurate and that they did not conduct reasonable investigations. Barakat has hired Mr. Dean Binder as a credit damage expert witness to assist in the case. The defendants have filed a motion to exclude Mr. Binder’s expert opinion under Daubert.
Discussion: In his report, Mr. Binder rendered two opinions: 1) Defendant Capitol violated the FCRA by failing to conduct a proper investigation, and 2) Defendant CRAs violated the FCRA by not conducting a proper investigation.
The defendants argue that Mr. Binder’s opinions should be excluded because he does not have the qualifications to testify in this case, his opinions will not assist the trier of fact to determine a fact in issue, and that his testimony will mislead the jury.
The plaintiff responded the the motion by relying on non-binding case law, stating that Mr. Binder’s expert opinions are based on his specialized knowledge, not scientific knowledge. In addition, the plaintiff then states that his credentials and experience give Mr. Binder the qualifications to testify in this case and that Mr. Binder’s opinions and testimony will help the jury.
The court opined that Mr. Binder’s expert opinions will be excluded. First, Mr. Binder’s opinions that both Capitol One and the CRAs violated the FCRA are stated in the form of legal opinions on the ultimate issue. Testimony from experts that form legal opinions are not allowed under Daubert.
In addition, the court ruled that Mr. Binder’s non-legal opinions do not have a reliable foundation. Even though he states that his experience provided him with the knowledge of being well versed on many aspects of the credit industry and credit scoring, he has not handled any multiple charge-off issues during his job history. Thus, he does not have any real-world experience as to how charge-offs should be reported or what happens when a disputes arises.
In addition, he testified that the payment history category reported by the Defendant as misleading or inaccurate is based on speculation. Last, Mr. Binder admits that he did not review, nor did he ask for, any information regarding Capitol One’s investigation and that his opinion on Capitol One’s purposed failure to conduct an investigation is based on the outcome of the actual investigation.
Conclusion: The motion to exclude the expert witness report of Mr. Dean Binder is granted.