ANGELA P. WILLIAMS, Plaintiff, vs. EQUIFAX INFORMATION SERVICES LLC, Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 48-2003-CA-9035-O. September 4, 2007. George A. Sprinkel IV, Judge.
Motion One: Plaintiff moves to exclude any evidence or reference to plaintiff's claims or settlements with other defendants in this case. Plaintiff previously settled her claims against two other defendants, Experian and American Recovery Systems. Defendant responds that it does not anticipate offering into evidence the matters to which Plaintiff refers in Motion 1. Plaintiff's motion is hereby GRANTED.
Motion Two: Plaintiff moves to exclude any evidence offered by Equifax relating to Equifax documents or information in documents that were not produced until the verge of or after the discovery cutoff, including “frozen scans.” A frozen scan is a snapshot of a consumer's credit file taken once a month. Defendant responded by stating that it does not anticipate offering any documents into evidence not previously provided to Plaintiff and disclosed on Defendant's Exhibit List. Plaintiff's motion is hereby GRANTED.
Motion Three: Plaintiff moves to exclude any evidence relating to the accuracy of Equifax's credit reports in general. Plaintiff asserts: 1) Equifax has not produced any studies on the accuracy of its reports; 2) Equifax's representative has previously testified that she was unaware of any Equifax studies as to the percentages of Equifax's credit reports that contained inaccurate information; 3) a report from the General Accounting Office indicates Equifax and the other two large agencies, Trans Union and Experian, claimed they did not have the data to specifically respond to a request that they each provide data on the frequency, type, and cause of errors in credit reports. See Consumer Credit: Limited Information Exists on Extent of Credit Report Errors and Their Implications for Consumers, General Accounting Office, July 31, 2003, GAO-03-1036T, page 2 (located at http://www.gao.gov/new.items/d031036t.pdf).
Plaintiff also asserts that Equifax has not designated any expert witness to testify on the accuracy of its reports or any issue for that matter.1 Accordingly, plaintiff asserts that neither Equifax or its counsel should be permitted to refer to an “accurate system” in general terms or overall, or to the claim that Equifax would not stay in business if it did not issue accurate reports.
Defendant responds that Plaintiff is asking the Court to preclude Equifax from presenting evidence to prove a significant part of its case. Equifax denies the contention that Equifax failed to follow reasonable procedures to assure maximum possible accuracy of Plaintiff's credit report and claims it is entitled to submit evidence to prove this disputed fact, including presenting affirmative evidence that its procedures produce accurate reports.
Defendant challenges Plaintiff's attempt to prevent Equifax witnesses from testifying that Equifax has an “accurate system” (or words to the effect). Defendant states that Equifax witnesses are Equifax employees who have intimate personal knowledge of the accuracy of Equifax's system and are permitted to testify concerning those facts.
Plaintiff's motion is hereby GRANTED. Neither Equifax's counsel or its representatives shall make comments or testify that Equifax has an “accurate system,” make comments concerning or testify as to the accuracy of the credit reports it prepares except as it relates to Plaintiff and Angelina Williams. This ruling is WITHOUT PREJUDICE for Equifax to proffer evidence outside the presence of the jury at trial.
Motion Four: Plaintiff seeks to exclude any testimony or reference by counsel for Equifax to evidence supporting any contention or defense not contained in Equifax's Answer. Plaintiff contends that Equifax has not asserted any viable affirmative defenses other than the statute of limitations. Defendant responded at the hearing that Equifax does not anticipate offering any evidence that does not support the contentions or defenses not raised in Equifax's affirmative defenses. Plaintiff's motion is hereby GRANTED.
Motion Five: Plaintiff seeks to exclude any evidence offered by Equifax regarding actions by agents or employees of Equifax who were not identified in Equifax's initial discovery responses when it had information it could have provided as to the names of such persons. Defendant responds that Plaintiff has not identified any witness who should be excluded for this reason. Defendant further states that, while the relief that Plaintiff seeks by this motion is unclear, its premise is fundamentally flawed -- Equifax should not be required to identify every witness that it may call at trial at the outset of the case when Equifax's investigation has just commenced. In responding to Plaintiff's initial discovery, Equifax claims it provided Plaintiff with a preliminary list of witnesses and advised that it was conducting its own internal investigation into Plaintiff's allegations. Equifax stated that it later provided additional names of agents or employees who had relevant information regarding this matter and Plaintiff had the opportunity to depose those witnesses.
Plaintiff's motion is deferred. Equifax needs to proffer any such evidence (referring to what a witness did or did not do or intended to do or did not intend to do if that person is not testifying before the Court) before the Court will decide whether to admit it.
Motion Six: Withdrawn by Plaintiff.
Motion Seven: Plaintiff moves to preclude evidence, testimony, or reference to credit repair organizations (CRO). This case does not involve any CROs. Thus, evidence concerning CROs would not be relevant in this case. Defendant responds that it does not anticipate offering into evidence the matters to which Plaintiff refers in Motion 7.
Plaintiff's motion is hereby GRANTED.
Motion Eight: The Court defers ruling on this Motion but plaintiff may raise an objection at trial.
Motion Nine: Plaintiff seeks to exclude any testimony2 or reference by counsel for Equifax to opinions of Equifax representatives or of Equifax's counsel which are not supported by admissible facts. Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1331 (5th Cir. 1996). Equifax's corporate representative regarding the investigations, Lisa Willis, admitted she is not a fact witness and has no first hand knowledge of any of the events or transactions underlying this lawsuit. She has no specialized training or knowledge regarding the issues involved in this lawsuit. Plaintiff asserts that her background and work experience do not meet the requisite Daubert standards and requirements as to any issue in this lawsuit. More importantly, plaintiff asserts she was not designated as an expert witness and no expert witness report was provided to plaintiff's counsel. See Thudium v. Allied Products Corp., 36 F.3d 767, 769-770 (8th Cir. 1994). Defendant responds that it does not anticipate offering into evidence the matters to which Plaintiff refers in Motion 9. Plaintiff's motion is hereby GRANTED.
Motion Ten: Plaintiff moves to preclude questions during voir dire regarding prospective jurors' credit reports and asserts the following argument in support:
Prospective jurors may believe that reports they receive from Equifax show all the information being reported about them. In fact, the credit reports that consumers receive directly from credit reporting agencies such as Equifax may be significantly different from the reports which credit bureaus send to creditors. When a consumer orders their own credit report, they are required to provide numerous pieces of identifying information, including name, birth date, social security number, addresses, pieces of identification or utility bills. This results in a very narrow search for information about that consumer in the agencies files.
In contrast, creditors can receive credit reports in response to providing the agency with only a name and address. This results in a greater amount of data being included on a report. In addition, the agency will often send multiple reports representing different credit files, or will combine files into one merged report and provide that combination report. Thus, a prospective juror may have viewed his or her credit report and believed that the agency was reporting only that accurate information, when creditors were receiving additional, inaccurate information. If Equifax questions jurors regarding their “credit reports,” it could prejudice plaintiff by giving the impression that jurors' consumer reports are accurate when they potentially are not.
In addition, jurors may have seen report from other credit reporting agencies that appeared accurate. If they indicated their reports were accurate, it could mislead other jurors into thinking those “accurate” reports were prepared by Equifax.Defendant responds that in this case concerning Plaintiff's credit file, such questions would relate to any bias of the prospective juror and Plaintiff has offered no authority for precluding such questioning. Denied in part. The parties may question prospective jurors regarding any complaints or disputes they may have had with any credit reporting agencies. The court reserves ruling on the remaining portion of Plaintiff's motion.
Motion Eleven: Plaintiff also asks the Court to instruct the jury not to obtain their credit report, consumer report, or credit file disclosure, or discuss the contents of credit reports with friends and family, during the pendency of the trial. This comports with a customary admonition to the jury not to conduct outside or independent investigation. Defendant states that it does not object to the instruction Plaintiff requests in Motion 11. Plaintiff's motion is hereby GRANTED.
Motion Twelve: Plaintiff moves to preclude any reference to “crowded courtrooms,” or identifying either directly or implicitly this case as being the type of case that causes delays or backlogs in the court system.Stokes v. Wet'N Wild, Inc., 523 So.2d 181 (Fla. 5th DCA 1988). Defendant responds that Defendant does not anticipate offering into evidence the matters to which Plaintiff refers in Motion 12. Plaintiff's motion is hereby GRANTED.
1Plaintiff asserts that defendant should not be allowed to call any expert witnesses who have not been previously listed on their pretrial witness list and their opinions disclosed in accordance with this Court's Pretrial Order. Such would be unfairly prejudicial to Plaintiff, and such late disclosure could not be cured by Plaintiff. At no time have any other “supplemental” reports or opinions been disclosed to Plaintiff's counsel pursuant to the Court's pretrial Order. See Suarez Burgos v. Morhaim, 745 So.2d 368 (Fla. 4th DCA 1999); Florida Marine Enterprises v. Bailey, 632 So.2d 649 (Fla. 4th DCA 1994); Grau v. Branham, 626 So.2d 1059 (Fla. 4th DCA 1993); Binger v. King Pest Control, 401 So.2d 1310, 1314 (Fla. 1981);Pipkin v. Hamer, 501 So.2d 1365 (Fla. 4th DCA 1987); and Mattek v. White, 695 So.2d 942 (Fla. 4th DCA 1997).
2Defense counsel shall not be permitted to provide his own opinions as to the credibility of a witness, his personal knowledge of facts, nor allude to any matter that is not in evidence. Silva v. Nightingale, 619 So.2d 4 (Fla. 5th DCA 1993), (holding such is fundamentally improper); Muhammed v. Toys “R” US, Inc., 668 So. 2d 254 (Fla. 1st DCA 1996); Florida Rule of Professional Conduct 4-3.4(e). Florida Bar Rule 4-3.4(3).
Abraham Ovadia, Esq.
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