What is Your Burden in Causation? Must Read

Proving the proximate and legal cause of your damages may be more tricky than you think.
David A. Szwak

What is Your Burden in Causation? Must Read

Postby David A. Szwak » Sat Dec 24, 2005 8:58 pm

Sampson v. Equifax Information Services, LLC
Slip Copy, 2005 WL 2095092

Equifax also challenges Sampson's proof of causation and damages. According to the company, any harm that Sampson suffered was not its fault, but was a result of her own habit of failing to pay her bills in a timely fashion, if at all. [FN2] Consequently, Equifax argues, Sampson cannot prove that it caused her harm.

FN2. Willis stated that Sampson's "consumer credit file contains numerous derogatory entries," in addition to the disputed accounts, "including multiple charged of accounts, collections accounts and a repossession." Willis Aff. ¶ 12. Willis, as a supervisor in Equifax's Office of Consumer Affairs, could be a person with personal knowledge of the contents of Sampson's credit report, as she contends in her affidavit.

*4 Yet, a plaintiff does not have to show that the inaccurate information was the only reason she was denied credit. Rather, the consumer only needs to produce evidence from which a reasonable trier of fact could infer that the inaccurate entry played a part in a decision to deny credit. Id. at 1161 (plaintiff must show that inaccuracy was "a causal factor"). The consumer need not eliminate the possibility that correct, derogatory entries also factored into the decision. See also Philbin, 101 F.3d at 969-70 (finding support for such an approach in tort and employment discrimination cases). [FN3]

FN3. Equifax's reliance on Enwonwu v. Trans Union, LLC, 364 F.Supp.2d 1361, 1367 (N.D.Ga.2005), is misplaced, insofar as the Enwonwu court was able to determine, as a matter of law, that the inaccuracy was not a substantial factor in the denial of credit. Equifax has produced no evidence from which the Court could make such a determination.

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.
*5 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.[/u]

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