In 2022, Plaintiff Rick Fox received a letter from his student loan provider stating that it extended condolences to Plaintiff’s family concerning Plaintiff’s death. Several weeks later, Plaintiff learned that his insurance benefits through the Department of Veterans Affairs (“VA”) had been terminated after the VA received a report that Plaintiff was deceased. On July 29, 2022, Plaintiff discovered that the Social Security Administration (“SSA”) had marked him as “deceased.” Plaintiff later discovered that both Equifax and Trans Union were reporting him as deceased on a Discover account listed on his consumer reports. After disputing this designation, Plaintiff alleged that he received a communication from Experian stating that the Discover account had been corrected, and, because credit bureaus share information, Plaintiff assumed that Trans Union would correct the mistake in its report as well.
On August 15, 2022, Plaintiff applied for a car loan with five non-party entities, each of which obtained a copy of Plaintiff’s Experian credit report, and all five loan applications were ultimately denied. Plaintiff alleged, on information and belief, that all five applications were denied because he was still being reported as “deceased” on his consumer reports.
Plaintiff proffered the opinion of Evan Hendricks in support of his claims brought in this case. Experian Information Solutions, Inc. filed a motion to exclude or limit the testimony of Hendricks.
Credit Reporting Expert Witness
Evan D. Hendricks has worked in the field of data privacy and credit reporting for over forty years. He was the Editor and Publisher of Privacy Times from 1981-2013.
Hendricks has also given many presentations on the FCRA at conferences offering continuing legal education and other professional seminars. Hendricks has served as an FCRA expert witness since 1992, has testified as an expert in at least 25 trials in both federal and state court, and has testified before Congress and the Federal Trade Commission (“FTC”) on credit reporting practices. He wrote the book Credit Scores and Credit Reports: How the System Really Works, What You Can Do (“Credit Scores and Credit Reports”).
Discussion by the Court
In its motion, Defendant sought to exclude the testimony of Hendricks regarding: (1) Defendant’s policies and procedures surrounding its product, Fraud Shield; (2) Plaintiff’s damages; (3) Defendant’s knowledge, motivations, intentions, state of mind, and subjective beliefs; (4) prior cases, administrative actions, and consent orders; and (5) the reasonableness of Defendant’s policies and procedures.
A. Fraud Shield
Defendant contended that Hendricks’ opinion regarding its Fraud Shield product must be excluded because Hendricks is unqualified to opine on it.
As a preliminary matter, Hendricks is not automatically unqualified to offer an opinion about the Fraud Shield product just because he lacked direct experience with it. Even more specifically, the Fraud Shield product is “within the reasonable confines of his subject area” because that product is part of the credit reporting process. Therefore, the Court concluded that Hendricks is qualified to offer an expert opinion about the product and how it functions.
As to reliability, where, as here, the expert’s opinion is non-scientific in nature, “reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.”
As noted above, in his report Hendricks stated that he formed his opinions in this case based on, among other things, the allegations of Plaintiff’s complaint and his own extensive experience in the credit reporting industry. These facts establish a sufficient basis as to the reliability of his opinion.
B. Damages
Defendant also argued that, as evidenced by his report and deposition testimony, Hendricks is not qualified to offer expert opinion or testimony on Plaintiff’s damages.
As a preliminary matter, Hendricks’ failure to review certain materials again bears on the weight of his opinion, not its admissibility.
In his expert report in this case, Hendricks has conceded that, other than the impact on Plaintiff’s creditworthiness, “most, if not all, of the testimony regarding Plaintiff’s specific, actual damages will come from fact witnesses.” Nonetheless, Hendricks’ report addressing damages largely consists of a list of eight categories of “typical negative impacts of unreasonable credit report inaccuracy” that he believes will aid the fact finder in assessing damages in this case, given his belief that Plaintiff experienced “many” of these categories of harm.
Those eight categories are: (1) inaccurate descriptions of creditworthiness to third parties; (2) improper denial of credit; (3) loss of time, energy, and opportunities due in part to correcting the mistakes on one’s credit report; (4) wrongfully receiving debt collection calls; (5) being chilled from applying for credit; (6) sleeplessness and physical symptoms; (7) sense of helplessness and loss of control over personal data; and (8) emotional distress.
The Court concluded that Hendricks is qualified to testify regarding the categories of damages that individuals often suffer from inaccurate credit reporting.
C. Defendant’s State of Mind
Defendant next argued that Hendricks has proffered opinions regarding Defendant’s knowledge, motivations, intentions, objective state of mind, and subjective beliefs which “plainly failed to satisfy Rule 702” of the Federal Rules of Evidence.
Upon review of the expert report, the Court observed several instances in which Hendricks opines on Defendant’s state of mind. Courts routinely exclude expert testimony as to intent, motive, or state of mind as issues better left to a jury. Accordingly, the Court held that Hendricks will be prohibited from offering his opinions regarding Defendant’s state of mind, specifically, whether Defendant acted with disregard or knowingly.
However, Hendricks will not be precluded from offering expert testimony regarding industry standards regarding accurate credit reporting even if that testimony could reasonably reflect Defendant’s subjective awareness about those standards when it developed and launched the Fraud Shield product.
D. Prior Actions
Defendant argued that Hendricks’ opinions should be excluded to the extent that he describes consent orders entered into by Defendant’s predecessor, prior cases, and administrative actions.
Expert testimony as to prior actions, consent orders, and administrative actions “is unnecessary because no specialized knowledge or expertise is needed to understand the existence of those prior actions and to draw reasonable inferences from them.”
The Court concluded that expert testimony of this nature will not be helpful to the jury in this case.
E. Legal Conclusions
Finally, Defendant argued that Hendricks offered several opinions that involved legal conclusions on ultimate issues in this case and that should be excluded as impermissible under Rule 702 of the Federal Rules of Evidence.
An opinion is not objectionable just because it embraces an ultimate issue. Because he is an expert on credit reporting, the Court held that Hendricks may offer opinions regarding industry standards of credit reporting practices, how Defendant’s practices did or did not comport with those standards, and even what measures Defendant could have implemented to improve credit reporting accuracy.
Moreover, it did not appear to the Court that the Defendant sought to exclude any specific opinions regarding the reasonableness of Defendant’s policies
Held
The Court granted in part and denied in part the Defendant’s motion to exclude or limit the expert opinion of Evan Hendricks.
Key Takeaway
With respect to corporations, the opinions of expert witnesses on the intent, motives, or states of mind of corporations, regulatory agencies and others have no basis in any relevant body of knowledge or expertise.
Case Details:
| Case Caption: | Fox V. Experian Information Solutions, Inc. |
| Docket Number: | 1:22cv1197 |
| Court Name: | United States District Court, California Eastern |
| Order Date: | March 31, 2026 |
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