McCabe v. Crawford & Co., 01 C 8194.
| Decision Date | 08 July 2003 |
| Docket Number | No. 01 C 8194.,01 C 8194. |
| Citation | 272 F.Supp.2d 736 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | Terrence MCCABE, on behalf of himself and all others similarly situated, Plaintiff, v. CRAWFORD & COMPANY, Budget Group, Inc., and Budget Rent A Car, Inc., Defendants. |
Lance A. Raphael, Stacy Michelle Bardo, Aron David Robinson, Law Office of Aron D. Robinson, Chicago, IL, for plaintiff.
Kristen M. Lehner, Michael, Best & Friedrich, LLC, William Henry Barrett, Michael A. Stiegel, Scott L. D'Angelo, Michael, Best & Friedrich, Jacob J. Meister, Attorney at Law, Hall Adams, III, Williams, Montgomery & John, Ltd., Martin D. Snyder, Wildman, Harrold, Allen & Dixon, Chicago, IL, for defendants.
Terrence McCabe filed this class action suit against Crawford & Company ("Crawford") alleging violations of the Fair Debt Collection Practices Act ("FDCPA" or "Act"), 15 U.S.C. § 1692 et seq., (Counts I and II), and the Illinois Collection Agency Act ("ICAA"), 225 ILCS 425 et seq., (Count IV). Currently before the Court is McCabe's motion for summary judgment on all remaining counts pursuant to Federal Rule of Civil Procedure 56(c). For the following reasons, the Court grants in part and denies in part McCabe's motion for summary judgment on Count I. (R. 68-1.) In addition, the Court grants summary judgment to Crawford on Counts II and IV.1 Crawford's motion to exclude testimony of Manuel Newburger is denied in part and granted in part. (R. 74-1.)
The relevant facts of this case are straightforward. In November 1997 McCabe rented a truck from Budget Rent A Car ("Budget"). Subsequently, McCabe accidentally damaged the truck, resulting in an alleged debt between McCabe and Budget. In June or July 2001, Budget submitted the alleged debt to Crawford, a collection agency. Soon after, Crawford, in an attempt to collect the alleged debt, sent McCabe a collection letter. The letter contained the total balance due, along with a breakdown of the damages.2
The collection letter also contained the following paragraph, which is the subject of the current controversy before the Court:
Unless we hear from you within thirty (30) days after the receipt of this letter disputing this claim, Federal Law provides that this debt will be assumed to be valid and owing. In the event you contact us and dispute the charges owed, we will promptly furnish you with any and all documentation to substantiate the claim.
McCabe alleged in his seven-count amended complaint that this letter, and others like it, violated the FDCPA and the ICAA. Crawford filed a motion to dismiss, which we granted in part on September 24, 2002, leaving only Counts I, II, and IV intact. The Court also certified Classes A and B.3 Counts I and II allege various violations of the FDCPA and Count IV alleges violations of the ICAA. Specifically, McCabe asserts that Crawford's letters to Class A members failed to apprise them of their rights under the FDCPA, which also allegedly violates the ICAA. In addition, McCabe claims that Crawford's letters to Class B members attempted to collect a debt without first complying with the Illinois Vehicle Code ("Code"), 625 ILCS 5/6-305.2, also in violation of the FDCPA.4
Currently before the Court is Plaintiff's motion for summary judgment pursuant to Rule 56(c) and Defendant's motion to exclude the expert testimony and report of Manuel Newburger.
A. Motion to Exclude Expert Testimony and Report
We first address Crawford's motion to exclude the testimony and report of McCabe's expert witness Manuel Newburger. For the reasons set forth below, the Court grants Crawford's motion to exclude Mr. Newburger's expert report, but denies the motion to exclude Mr. Newburger's expert testimony. Mr. Newburger will be allowed to testify at trial regarding the narrow issue of practices and standards in the collection agency industry.
Mr. Newburger is a law professor at the University of Texas School of Law. He currently teaches consumer law and has practiced in that field for 20 years, representing both collection agencies and debtors. Mr. Newburger has published numerous articles and books on the FDCPA and often advises collection agencies on how to comply with the Act. There is little doubt that Mr. Newburger is accomplished in his field and is familiar with the FDCPA and its case law.
The admission of expert testimony is governed by Rule 702 of the Federal Rules of Evidence.5 Expert testimony must be both relevant and reliable to be admitted. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). It may be based upon the personal knowledge or experience of the expert. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The key to evaluating expert testimony that is based on the expert's personal experience is determining whether the expert employs "the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho, 526 U.S. at 152, 119 S.Ct. 1167. Because expert testimony can be powerful and misleading, judges must act as gatekeepers and exclude expert testimony where the possible prejudice of the testimony outweighs its probative force. Daubert, 509 U.S. at 595, 113 S.Ct. 2786. In addition, the Federal Rules of Evidence prohibit experts from offering opinions or legal conclusions on issues that will determine the outcome of the case. See Bammerlin v. Navistar Int'l Transp. Corp., 30 F.3d 898, 900 (7th Cir.1994); Harbor Ins. Co. v. Cont'l Bank Corp., 922 F.2d 357, 366-367 (7th Cir.1990).
Crawford contends that Mr. Newburger's testimony and report are filled with legal conclusions and lack any objective or reliable methodologies. Particularly, Crawford takes exception to Mr. Newburger's approach of dividing violations of the FDCPA into technical and substantive violations. McCabe responds that Rule 702 is extremely flexible and that the testimony of Mr. Newburger should be allowed because he is well qualified to testify on the industry standards and practices of collection agencies.
In theory, we agree with McCabe's position that Mr. Newburger is qualified to testify regarding collection agency standards and practices. Unfortunately, in practice, Mr. Newburger fails to limit himself to this subject. Crawford correctly asserts that Mr. Newburger's report is filled with legal conclusions and inappropriate opinions. While Mr. Newburger prefaces his report with his intent not to offer opinions on issues of law, his report does just that.
First, Mr. Newburger divides FDCPA violations into technical and substantive violations explaining that technical violations are those "which [are] not strictly compliant with the FDCPA, but which [are] not likely to abuse or coerce consumers in the traditional sense." (R. 66, Pl's.Mem., Ex. 3-1.) Mr. Newburger, however, may not expound on what complies and does not comply with the FDCPA; these are inappropriate legal conclusions. In addition, Mr. Newburger is not an expert on how consumers will interpret or react to certain language in the collection letters. See Holt v. Wexler, No. 98 C 7285, 2002 WL 475181, at *3 (N.D.Ill. Mar.28, 2002) ().
Furthermore, Mr. Newburger offers no support for his conclusions other than his ipse dixit testimony. "An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process." Minasian v. Standard Chartered Bank, PLC, 109 F.3d 1212, 1216 (7th Cir.1997) (citation omitted). Especially improper are Mr. Newburger's declarations on how much or what percentage of statutory damages is required for the combined violations. Again, Mr. Newburger offers nothing to support these declarations other than his own legal conclusions. In short, the report greatly exceeds the scope of Mr. Newburger's proper testimony.
We emphasize that it is the fact finder's responsibility to examine each of the FDCPA's factors to determine the amount of damages on statutory liability.6 15 U.S.C. § 1692k(c). Mr. Newburger's appropriate testimony with respect to collection agency standards and practices will aid the fact finder in examining two of the FDCPA four factors: the nature of the noncompliance and the extent to which the noncompliance was intentional. It is inappropriate, however, for Mr. Newburger to make legal conclusions regarding any of the four factors or to opine on the seriousness of the violations or the amount of damages. This responsibility lies solely with the fact finder.
In summary, we believe that Mr. Newburger may offer something of value in regards to industry standards and practices; however, he must limit himself to this topic and avoid legal conclusions and ipse dixit testimony. As it stands, there is nothing of value for the Court in Mr. Newburger's report at this juncture and, therefore, Crawford's motion to exclude the report is granted. Because Mr. Newburger may have relevant testimony regarding industry standards and practices, however, we deny Crawford's motion to exclude Mr. Newburger as a witness. We emphasize, however, that Mr. Newburger's testimony must strictly conform with this Court's opinion in order to be admitted at trial. In addition, if McCabe intends on using Mr. Newburger at trial, he should submit another expert report that complies with Rule 26(a)(2) of the Federal Rules of Civil Procedure. We also stress that Mr. Newburger's report and deposition have not been used in any way in reaching our decision on summary judgment.
Summary judgment is proper when the record shows no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue for trial...
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