In Jones v. Midland Funding, LLC, — F.Supp.2d —-, 2009 WL 1385140 (D.Conn. 2009), District Judge Martinez ruled on whether a debt collector could offer the testimony of a renowned author of a treatise on the FDCPA that collection letters were consistent with industry standards.
The defendants offer Newburger as an expert “who will be called to provide an opinion and testify for any dispositive motion and during the trial of this case.”(Expert Report at 1.) The defendants requested Newburger’s opinion as to whether their “collection letters were consistent with collection industry standards.”(Expert Report at 2.) Newburger bases his opinion on his review of the applicable provisions of the FDCPA “together with pertinent sections of [his] book, M. Newburger and B. Barron, Fair Debt Collection Practices: Federal and State Law and Regulation,” various caselaw and his experience in prosecuting and defending FDCPA cases. (Expert Report at 1.) He compiled a list of industry standards based on the text of the FDCPA, caselaw, the Federal Trade Commission’s Staff Commentary on the FDCPA and applicable state law statutes and regulations.
Judge Martinez granted the Plaintiff’s motion to preclude, explaining:
Newburger’s testimony and expert report were at issue in McCabe v. Crawford & Co., 272 F.Supp.2d 736 (N.D.Ill.2003), a FDCPA case. In ruling on a motion to preclude, the court found that Newburger’s report was “filled with legal conclusions and inappropriate opinions” and held that he “may not expound on what complies and does not comply with the FDCPA; these are inappropriate legal conclusions.” Id. at 740.The court granted the motion to exclude Newburger’s report and emphasized that neither his report nor deposition were used in reaching the court’s decision on summary judgment. Id. at 741.The court denied the motion to exclude him as a witness be-cause he “might have relevant testimony regarding industry standards and practices” as to the issue of damages. Pursuant to 15 U.S.C. § 1692k(b), the fact finder examines various factors in determining damages. The court held that Newburger’s testimony “with respect to collection agency standards and practices will aid the fact finder as to two of the four FDCPA factors: the nature of the noncompliance and the extent to which the noncompliance was intentional.” Id. at 740-41.The court cautioned that should Newburger testify, he must avoid “mak[ing] legal conclusions regarding any of the four factors or to opine on the seriousness of the violations or the amount of damages.” Id. at 740. ¶ *3 In this case, Newburger’s opinion regarding “industry standards” is a thinly disguised legal opinion as to whether the defendants’ letters violate the FDCPA. The defendants’ reliance on Rule 704 in support of the admission of his opinion is misplaced. Rule 704 requires that an expert opinion, notwithstanding that it may reach an “ultimate issue,” must be “otherwise admissible.” An expert’s opinion must, among other things, “assist the trier of fact to understand the evidence or to determine a fact in issue,” within the meaning of Federal Rule of Evidence 702. “Legal conclusions as to ultimate issues generally do not assist the trier of fact because they simply tell the trier of fact what result to reach.” Klaczak v. Consolidated Medical Transport Inc., No. 96 C 6502, 2005 WL 1564981, at *8 (N.D.Ill. May 26, 2005).“[R]ule 704 was not intended to allow experts to offer opinions embodying legal conclusions.” United States v. Scop, 846 F.2d 135, 139 (2d Cir.), rev’d in part on reh’g on other grounds, 856 F.2d 5 (2d Cir.1988). ¶ Because Newburger’s opinion contains legal conclusions that impermissibly invade the province of the court, it may not be considered in determining liability. See Hamilton v. American Corrective Counseling Services, Inc., No. 3:05CV434, 2006 WL 2873622, at *2 (N.D.Ind. Oct. 4, 2006) (court granted motion to exclude Newburger’s testimony, finding that the “industry standards” proffered by Newburger were coextensive with the FDCPA and that “[w]hen Mr. Newburger testifies about the practices of the industry, he is offering his legal opinion”); McCabe v. Crawford & Co., 272 F.Supp.2d 736 (N.D.Ill.2003).