Court: United States District Court for the Southern District of Florida
Case Name: Bouton v. Ocean Props
Citation: 2017 U.S. Dist. LEXIS 17498
The plaintiff stayed at the Jupiter Beach Resort in Florida for one night. During his stay, he paid with his credit card and received a folio from the front desk which revealed his credit card’s expiration date. The folio also contained other identifying information, such as his name and residential zip code. The plaintiff brought a lawsuit against the defendants for their alleged violation of the Fair and Accurate Credit Transactions Act (FACTA) amendment to the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq.
The defendant’s Daubert motion challenged the opinions of the plaintiff’s expert and sought to preclude him from testifying on whether the unmasking of expiration dates at the Jupiter Beach Resort occurred recklessly and due to a deviation from standard industry practices.
The plaintiff’s expert had years of professional experience as a high-level banker, mortgage banker, lender, and independent consultant. The expert was also published in these fields and had testified extensively as an expert witness, serving in more than 50 FACTA cases.
The defendants challenged the expert’s qualifications, the reliability of his methodology, and the helpfulness of the opinion. They argued that the expert could not comment upon the industry practices at the Jupiter Beach Resort or the compliance (or lack thereof) with such practices because he had no hotel employment experience, no hospitality education, no knowledge of the hotel industry, no understanding of the hotel check-out process, no understanding of the Opera software used at the hotel, no knowledge about Oracle’s relationship to the hotel, and no history of publications on the subject.
By testifying about Jupiter Beach Resort’s gross deviation from industry practices, he implicated the standard practices of the hospitality industry. In order to opine on the defendants’ hotel practices, it was necessary that the expert have at least some minimal training, education, experience, knowledge, or skill in this particular industry. Although an expert is not necessarily unqualified simply because his experience does not precisely match the matter at hand, the expert’s background had no relationship or connection to the very industry about which he sought to opine. Not only was it undisputed that he had no such background, but the expert admitted he had not previously been an expert in a case involving a hotel.
The plaintiff argued that although this case was the expert’s first involving a hotel company, the FACTA violation was substantially the same as those involved in his previous cases. While the expert’s report was arguably unclear on which industry practices he opined, the plaintiff’s response did not dispute that this opinion pertained to the hotel industry. Instead, the focus of the plaintiff’s response was on the expert’s banking credentials and his extensive experience as an expert in other FACTA cases. The expert’s report, rebuttal report, and curriculum vitae reflected a complete absence of any background that would qualify him as an expert on hotel industry practices. Thus, his opinions were excluded.
What We Can Learn From This Case
Experts must have at least some minimal training, education, experience, knowledge, or skill in the particular industry at hand.