In McDonough v. JPMorgan Chase Bank, N.A., 2016 WL 4944099, at *2–3 (E.D.Mo., 2016), Judge Hamilton allowed, but limited, the testimony of Evan Hendricks in an FCRA case.
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 bi-weekly 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 cross-examination at trial. 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 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.