Proving Damages in a 1681e[b] Case to Overcome MSJ: Sampson

Maximum Possible Accuracy
David A. Szwak

Proving Damages in a 1681e[b] Case to Overcome MSJ: Sampson

Postby David A. Szwak » Thu Nov 03, 2005 10:06 am

Sampson v. Equifax

Equifax also faults Sampson for failing to prove that she suffered damages. Defendant protests that Plaintiff's affidavit is conclusory, because she has not produced evidence of any credit denials, or even the names of the businesses that refused to extend her credit. In Cahlin, the court granted summary judgment because the consumer had not produced any evidence of harm. 936 F.2d at 1160-61.

Sampson argues that Cahlin is inapplicable because her affidavit shows that she suffered harm due to Equifax's conduct. Indeed, the Eleventh Circuit noted that "Cahlin produced no documentary or testimonial evidence to support" his allegations that he had been denied credit as a result of inaccurate information contained in his credit report. Id. at 1156. Here, Sampson has produced a sworn statement that she was denied credit, and has suffered emotional distress, as a result of Equifax's conduct. [FN4]

FN4. In addition, Sampson asserts that the loss of credit opportunities can constitute compensable harm under § 1681e(b). Under this theory, Plaintiff claims that she was deterred from seeking credit because of the derogatory errors in her report. See Guimond, 45 F.3d at 1332 n. 2 &1333.

Rule 56(e) of the Federal Rules of Civil Procedure contemplates the use of affidavits in opposition to motions for summary judgment. As a result of Sampson's affidavit, Cahlin is distinguishable from the facts presented in this case. Sampson's sworn averments regarding her purported indebtedness to The Money Tree are "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) . Again, contrary to Equifax's arguments, the Court is not empowered to judge Sampson's credibility, based on what Equifax perceives as her lack of detail in her affidavit, on a motion for summary judgment.

Moreover, Equifax questions Sampson's ability to recover for humiliation and embarrassment. Mental anguish constitutes a compensable harm under the FCRA, and emotional distress damages may be recovered even absent a denial of credit. Philbin, 101 F.3d at 963 n. 3; Crane v. Transunion, LLC, 282 F.Supp.2d 311, 319 (E.D.Pa.2003); Guimond, 45 F.3d at 1333; Morris v. Credit Bureau of Cincinnati, Inc., 563 F.Supp. 962, 969 (S.D.Ohio 1983) (consumer awarded $10,000 for emotional distress even though he explained inaccuracies and discrepancies in his credit report and obtained credit eventually).

Nonetheless, Equifax contends that Sampson cannot recover emotional distress damages based solely on her own testimony. In Carey v. Piphus, the Supreme Court held that a plaintiff could not recover compensatory damages for emotional distress resulting from a procedural due process violation "without proof that such injury was actually caused." 435 U.S. 247, 264, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). In Cousin v. Trans Union Corp., the Fifth Circuit extended Carey to hold that "evidence of genuine injury, such as the evidence of the injured party's conduct and the observations of others" was required before a consumer could recover compensatory damages under the FCRA for emotional distress. 246 F.3d 359, 371 (5th Cir.2001); Carey, 435 U.S. at 264 n. 20 . Accordingly, Equifax asserts that Sampson's mental anguish claim fails because she has not produced independent evidence of emotional distress, such as medical or psychological consultations.

While Sampson need not prove that she confided her distress to a medical professional, the Court agrees that she must produce some form of independent, corroborating evidence of her humiliation and embarrassment at trial to recover compensatory damages for emotional distress. Numerous decisions have upheld a range of damages based on varying evidence in such cases. See Guimond, 45 F.3d at 1333; Stevenson v. TRW Inc., 987 F.2d 288, 297 (5th Cir.1993) (collecting cases); Pinner v. Schmidt, 805 F.2d 1258, 1265 (5th Cir.1986)($25,000 for embarrassment engendered by three credit denials and protracted dealings with reporting agency); Millstone v. O'Hanlon Reports, Inc., 528 F.2d 829, 834-35 (8th Cir.1976) ($2,500 awarded after insurer cancelled policy due to an erroneous credit report); Thompson v. San Antonio Retail Merchs. Ass'n, 682 F.2d 509, 514 (5th Cir.1982) ($10,000 awarded for humiliation caused by the reporting agency taking several months to correct the report, and by three credit denials).

Because genuine issues of material fact remain in dispute regarding the accuracy of Sampson's credit report, the reasonableness of Equifax's procedures, causation, and the extent of Sampson's harm, summary judgment is inappropriate as to Sampson's § 1681e(b) claim.

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