Credit Reporting Expert May Not Opine as to Whether the Procedures were Reasonable or Unreasonable
Posted on April 8, 2025 by Expert Witness Profiler
Plaintiff Barbara Cooper alleged that Defendant Milliman, Inc. (“Milliman”) violated the Fair Credit Reporting Act in two ways: first, when
it issued a report about her medical and prescription history that mixed her with another individual; and second, when it issued a second report wherein Milliman reinserted information it had previously deleted after purportedly reinvestigating Plaintiff’s dispute.
Milliman principally attributes its repeated errors to a “glitch” with the software that matches information about consumer identity with medical
record information.
Milliman’s expert Rebecca Kuehn’s 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.
Plaintiff argued that Kuehn is unqualified and her proffered testimony is unreliable. “As such,” Plaintiff contended, “her opinions are nothing more than bare legal conclusions that are pasted on to Milliman’s factual theories.”
Credit Reporting Expert Witness
Rebecca Kuehn is an attorney focusing on consumer financial services and consumer protection matters in the Washington, D.C. office of Hudson Cook, LLP.
She is an expert in the policies, procedures, and practices that consumer reporting agencies (“CRAs”) use to ensure compliance with the Fair Credit Reporting Act (FCRA). 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.
Discussion by the Court
Kuehn’s Expert Qualifications
Kuehn’s resume shows that Kuehn graduated near the top of her class at George Washington Law School. She served five years at the Federal Trade Commission (FTC), 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.”
In addition, Kuehn has served as co-chair of the FCRA Litigation Subcommittee in the American Bar Association, given numerous presentations on the FCRA, authored various publications on the FCRA, 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.’”
When Plaintiff argued that Kuehn is unqualified to opine on industry standards because of any lack of experience as to reporting of medical information, she essentially argued that 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.
As Plaintiff herself admits, Kuehn has “impressive credentials” at first sight. Even Plaintiff’s own expert has recognized Kuehn’s FCRA qualifications.
The Court held that Plaintiff’s arguments against Kuehn’s qualifications failed because they concerned the weight of Kuehn’s proffered testimony, not its admissibility.
Reliability of Methodology
Kuehn has published numerous works on the FCRA. One publication was at the FTC, which can set guidance as to what procedures are or are not reasonable.
Her knowledge has been tested at various presentations, in Court, and before Congress. As a result, the Court finds Kuehn possesses the required knowledge and experience to provide reliable testimony that is not merely ipse dixit. 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.
However, 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.”
Helpfulness
An average lay person does not know the industry-standard procedures used by CRAs.
Therefore, the Court ruled that Kuehn’s testimony could help the jury determine whether Defendant’s procedures were reasonable and if any violation was willful.
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.
Held
The Court granted in part and denied in part the Plaintiff’s motion to exclude opinion evidence from Rebecca Kuehn.
Key Takeaways:
- The reliability of non-scientific expert opinions depends heavily on the knowledge and experience of the expert, not the exactness of the methodology. Evidence of compliance or non-compliance with a custom within a particular industry, though not conclusive, is a factor the trier of fact may consider.
- While a witness may testify concerning an ultimate issue of fact, the witness may not “tell the jury what result to reach.”
Case Details:
| Case Caption: | Cooper V. Milliman, Inc. |
| Docket Number: | 2:23cv28 |
| Court Name: | United States District Court, Florida Middle |
| Order Date: | April 07, 2025 |
